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Men can’t testify as experts in own suit

Security guard in jacket

Two men who wanted to testify as security experts in their own suit against an amusement park were barred from doing so after a federal judge found that they “are not qualified by experience to offer expert opinions, nor have they offered any opinions that might be considered relevant.”

The decision came soon after the defendant, Seaworld Parks & Entertainment, filed a motion to preclude the men from testifying as their own expert witnesses.

U.S. Magistrate Judge Lawrence R. Leonard authored the opinion and order on the motion to exclude in Rivera v. Seaworld Parks & Entertainment LLC (VLW 022-3-190) earlier this month.


Jamil Rivera and Jeremiah Jenkins filed a five-count complaint against the defendants, alleging federal civil rights violations and state law tort claims. The claims stem from an incident between the pair and security personnel at Busch Gardens in Williamsburg in September 2018.

Rivera and Jenkins identified themselves as expert witnesses in their own suit, namely in the area of security. Rivera, who worked at Busch Gardens between 2009 and 2012 as a security guard, stated he would “provide expert testimony relating to security work” including protocols, practices and procedures related to investigative stops as well as specific training given to Busch Gardens security.

Jenkins, who worked as a military policeman for more than 10 years, said he “would testify as to how reasonable officers conduct security stops, security industry practices, and practice and procedures related to security work.”

But the defendants contended that the disclosures did not state the actual opinions the plaintiffs would offer as expert witnesses. They added that, regardless, the plaintiffs are unqualified to provide expert opinions. A motion in limine to preclude the men from testifying as expert witnesses was subsequently filed by the defense.

Testimony denied

Leonard said while “both Plaintiffs have identified the subjects about which they would propose to offer expert opinions, neither have actually disclosed the specific opinions they intend to offer, and, consequently, have failed to proffer any facts or reasons that might serve to support possible opinions.”

The judge wrote that the plaintiffs never articulated how officers should conduct security stops, what the proper security industry practices and procedures are, and how the Busch Gardens security team violated industry standards in their conduct with the plaintiffs.

“In short, Plaintiffs have not actually offered any opinions that would put Defendants on notice as to what specific conduct is alleged to have violated Plaintiffs’ rights,” Leonard said.

Even if the plaintiffs’ opinions were evident from the disclosure, the judge wrote, they “utterly fail” to support those opinions with facts to provide a foundation for them.

“The Court is left without any basis for understanding what opinions Plaintiffs hold and intend to convey to a jury, and what factual basis or other support they have for holding them,” Leonard wrote.

Leonard found the plaintiffs’ disclosures deficient under Federal Rule of Civil Procedure 26(a)(2)(C), which provides that a disclosure from an expert witness must state the subject matter the witness is expect to present evidence on and a summary of the facts and opinion the witness is expected to share in testimony.

Additionally, Leonard ruled in favor of the defense in determining that Rivera and Jenkins are not qualified to serve as expert witnesses on the topic of security matters.

In Rivera’s case, “any training he had in the field of ‘security’ is minimal and occurred more than a decade ago,” Leonard wrote, adding that Rivera testified to not remembering specifics from his training about “making a stop.”

As for Jenkins, Leonard said he “also has failed to establish by a preponderance of the evidence that he is qualified to offer expert opinions regarding security protocols at a private venue.” The judge noted that, despite Jenkins’s experience as a military policeman, he did not sufficiently establish how that experience translates to the circumstances presented in this case.

“At no time has Jenkins provided a foundation to establish that such military experience is applicable to a civilian venue like Busch Gardens,” Leonard wrote.

Leonard went further, pointing out that, even if the court deemed the plaintiffs qualified to serve as expert witnesses, “the Court as gatekeeper would have to exclude any such opinion.” This would be necessary, the judge said, because “neither Plaintiff actually offered any relevant opinions” and that what those opinions might be is unknown.

“Plaintiffs have simply failed to identify their conclusions as to Defendants’ conduct, and thus cannot ‘explain how their experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts,’” the judge wrote.

As such, Leonard granted the motion to limine filed by the defendants.