A district judge in California barred a safety expert witness from testifying about lack of intentional discrimination despite being qualified to offer an opinion on the subject matter.
Plaintiff Melvin Patterson is deaf. He brought this action under Title III of the Americans with Disabilities Act and the California Unruh Civil Rights Act against Defendants Six Flags Theme Parks, Inc., Six Flags Entertainment Corp., and Park Management Corp. (collectively, Defendants).
Plaintiff alleged Defendants discriminated against him by refusing to provide an American Sign Language (ASL) interpreter for planned visits to Defendants’ amusement park, Six Flags Discovery Kingdom in Vallejo, California.
In anticipation of the trial, Plaintiff moved in limine to exclude the testimony of Defendants’ retained expert, Robert F. Minnick, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert I), 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Plaintiff contended that Minnick is not qualified, his anticipated testimony is unreliable and unhelpful, his testimony contains pure conclusions of law, and he improperly offered opinions as to other witnesses’ state of mind.
Safety Expert Witness
Robert F. Minnick is a safety, compliance, and engineering technical executive with broad-based experience in designing, implementing, and sustaining improvements for resort hotels, theme parks, and entertainment facilities worldwide.
Specifically, he is an expert in ADA compliance and provides consulting services to theme parks to improve the customer experience for persons with disabilities and barrier removal. He previously worked as a technical director of safety and accessibility at Walt Disney Parks & Resorts in Florida, among other positions. He previously worked as a technical director of safety and accessibility at Walt Disney Parks & Resorts in Florida, among other positions.
Discussion by the Court
Minnick describes the following opinions in his report, which the Court has numbered for ease of reference:
- “After examining the documents listed [in my report], I do not find any evidence of discrimination by the Defendant. I saw evidence of one Six Flags Guest Relations employee getting confused about their service offerings for persons with disabilities, but no intentional discrimination.”
- “Requests for ASL interpreters are very rare at Six Flags Discovery Kingdom. . . . Since requests are so rare, it’s not surprising to this expert that a seasonal employee such as Mercedes Wilson in the Six Flags Operations Office would be confused about the range of service offerings for the deaf or hard of hearing.
- “Melvin Patterson appears to be angling for a fight with Six Flags Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his season pass expenditure.”
- “Park operations require [seven to fourteen days’] lead-time to understand and process the service request, contact a sign language contractor, schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.”
- “Same day service for a rare request is not a reasonable accommodation.”
Minnick’s testimony goes to the ultimate issues of law
As a preliminary matter, Defendants have shown that Minnick is at least minimally ‘qualified as an expert’ under Rule 702 based on his experience and knowledge regarding ADA compliance and accessibility in theme parks and other businesses from 2002 until today, despite his lack of ‘granular’ experience.
To begin, opinions (1) and (5)—that there is no “evidence of discrimination by the Defendant” and that same-day interpretive services are not reasonable—are “inappropriate subjects for expert testimony.”
Minnick offered legal conclusions—that there was no discrimination and offering same-day ASL interpretive service is not reasonable. The Court held that his testimony inappropriately goes to the ultimate issues of law and is therefore inadmissible.
Nor would opinions (1) and (5) “help the trier of fact to understand the evidence or to determine a fact in issue.” As described in his report, opinions (1) and (5) are based on Minnick’s review of discovery production and evidence in this case, including depositions, responses to interrogatories, and pleadings.
He does not explain how he used his expertise to evaluate that evidence. For that reason, it is unclear what helpful testimony Minnick could provide that is outside “the common knowledge of the average layman.”
Minnick’s opinions are properly for the trier of fact
Next, opinions (2) and (3) are about another person’s state of mind. Questions of state of mind are properly for the trier of fact.
The Court held that Minnick therefore cannot testify at trial “that a seasonal employee such as Mercedes Wilson in the Six Flags Operations Office would be confused about the range of service offerings for the deaf or hard of hearing.”
Nor may Minnick testify at trial that Plaintiff “appears to be angling for a fight with Six Flags Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his season pass expenditure.”
Minnick provided no analysis on how rare the requests for ASL interpreters are—for example, on average, how many requests do Defendants receive per week, month, or even year? Nor did he explain or know how much time it would take to find an ASL interpreter in the area, such that same day requests or requests made less than seven days in advance cannot be reasonably honored. In conclusion, Opinion (2) also lacked any analytical foundation.
Minnick did not explain the basis of his opinion or what method he used to reach it
What remains, then is opinion (4), i.e., that “[p]ark operations require [seven to fourteen days’] lead-time to understand and process the service request, contact a sign language contractor, schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.” Minnick did not explain the basis of this opinion or what method he used to reach it. He did not describe any research. Nor did he know how many days it took for an average or typical amusement park, let alone these particular Defendants, to obtain an in-person sign language interpreter or even an interpreter via the use of Video Remote Interpreting services. Nor did he testify about the industry standards for the amount of time needed to honor requests for ASL interpreters.
Instead, he explained that Disney, his former employer, “asks for two-week notice” because that particular theme park attracts a lot of international guests, and it would take time to find appropriate foreign language sign language interpreters—for example, a British sign language interpreter or a Chinese sign language interpreter.
He also testified vaguely at his deposition that the relevant standard “depends,” and he said theme parks “need to establish their policy . . . based on availability of services around the park.” Although he states different theme parks have different policies “based on their experience,” he does not appear to know what Defendants’ experience is and why Defendants’ policies are reasonable, if they are, in light of those experiences.
Held
The Court granted Plaintiff’s motion in limine to exclude Robert F. Minnick’s expert testimony.
Key Takeaways:
- An expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law. Expert testimony that consists of legal conclusions is unhelpful and inadmissible. Robert Minnick’s testimony-that there was no discrimination and offering same-day ASL interpretive service is not reasonable-inappropriately goes to the ultimate issues of law and is therefore inadmissible.
- Minnick’s opinions about there being no discrimination would not help the trier of fact to understand the evidence or to determine a fact in issue. His opinions are based on his review of discovery production and evidence in this case, including depositions, responses to interrogatories, and pleadings. He does not explain how he used his expertise to evaluate that evidence.
- Minnick’s opinion that requests for ASL interpreters are very rare at Six Flags Discovery Kingdom lacked analytical foundation. He provided no analysis on how rare the requests for ASL interpreters are—for example, on average, how many requests do Defendants receive per week, month, or even year? Nor did he explain or know how much time it would take to find an ASL interpreter in the area, such that same day requests or requests made less than seven days in advance cannot be reasonably honored.
Case Details:
| Case Caption: | Patterson V. Six Flags Theme Parks Inc., Et Al |
| Docket Number: | 2:21cv2398 |
| Court Name: | United States District Court, California Eastern |
| Order Date: | May 09, 2024 |
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