United States District Court, D. Nevada
THOMAS HILLERY, an individual, and as Guardian Ad Litem for MARY JANE HILERY, an adult, Plaintiffs,
SUN CITY ANTHEM COMMUNITY ASSOCIATION, INC.; DOE INDIVIDUALS 1 through 100; ROE BUSINESS ENTITIES 1 through 25, inclusive, Defendants.
J. YOUCHAH UNITED STATE MAGISTRATE JUDGE
the Court is Defendant Sun City Anthem Community
Association's Motion to Strike Plaintiffs' Expert
Dale H. Stephens (the “Motion”) on Order
Shortening Time. ECF No. 50. The Court has considered
Defendant's Motion, Plaintiff's Response (ECF No.
56), and Defendant's Reply (ECF No. 60). The Court finds
case involves a woman and her adult son who live in Sun City
Anthem (“SCA”), an age restricted community,
which provides certain amenities to its residents. There are
questions of fact and law regarding whether the community
amenities are “Places of Public Accommodation” as
defined in 42 U.S.C. § 12181(7); 28 C.F.R. 36.104 of the
Americans with Disabilities Act (“ADA”); however,
this question is not before the Court; and, it is not
necessary for the Court to decide this issue as it considers
Thomas Hillery, who is acting as Guardian ad Litem for his
mother, Mary Jane Hillery, allege that the SCA Community
Association violated the Fair Housing Act
(“FHA”), the ADA, and Nevada law when it (i)
failed to provide reasonable accommodation to Mrs. Hillery,
who is alleged to suffer from dementia and, therefore,
alleged to be disabled, (ii) discriminated against Mrs.
Hillery by subjecting her “to a rule with special terms
and conditions directed specifically at her because of her
protected status - a rule with which she cannot possibly
comply as a result of her handicap - and subsequently fining
her and threatening her with potential arrest . . ., ”
and (iii) generally deprived Mrs. Hillery of the use and
enjoyment of the SCA facilities and amenities because of her
case, which is contentious, began in two years ago in October
2017, when Mrs. Hillery was 86 years old. As stated in Court
by Plaintiff's Counsel, Mrs. Hillery is now 88. There is
no resolution of this dispute in sight.
course of growing closer to trial, Plaintiffs retained Dale
H. Stephens, an architect with 45 years of practice, as an
expert “to evaluate the claims made against …
SCA … Community Association in connection with the
treatment” of Mr. Hillery and his mother Mrs. Hillery
“during their use of SCA facilities.” ECF No.
50-1 at 2 (the Expert Witness Disclosure and Report (the
“Report”) written by Mr. Stephens). In his
Report, Mr. Stephens states that he was asked to give his
opinion “of Disabled Access and Reasonable
Accommodation, and Sun City Anthem Community
Association's performance of its professional duties as
Administrator of the SCA Anthem Center.” Id.
Mr. Stephens also states that he “was asked to
specifically evaluate and offer … [his] opinion on the
role assumed by Sun City Anthem Community Association in
their treatment of Mrs. Hillery's disability.”
qualifications sections of the Report, Mr. Stephens states
(in addition to his years as an architect) that: (1) he has
“designed many project types”; (2) he has
“extensive experience with the … ADA …
and … FHA … in helping resolve litigation
disputes”; (3) “most of the disputes” on
which he is “retained are resolved” through
“site visits” during which Mr. Stephens views
“existing conditions” leading to development of a
“compliance plan”; (4) he maintains a
continuation education file with the American Institute of
Architects (the “AIA”); and (5) he has been
recognized by the AIA, spoken at AIA conferences, and been
published in various magazines and newspapers. ECF No. 50-1
at 2. Mr. Stephens also identifies his retention as an expert
in seven other cases over the last four years. Id.
At the end of the Report Mr. Stephens lists all of his expert
retentions. Id. at 21-30 of 31. Details of Mr.
Stephens' retentions show that he has been retained on
numerous cases involving remediation of noncompliant
accessibility issues arising under the Americans with
Disabilities Act Accessibility Guidelines. There are also a
number of eminent domain cases, slip and fall cases, and
“litigation support” cases
“involving” ADA and FHA requirements. There is no
case listed in which it is apparent that Mr. Stephens was
retained to opine on whether (1) a specific entity is a place
of “public accommodation, ” (2) a particular
condition or illness is a “disability, ” (3) an
accommodation would pose an un undue burden or
“fundamentally alter the essential nature” of the
business at issue, (4) an individual poses a “direct
threat” (as defined by the ADA), (5) a “direct
threat” can be mitigated by an accommodation, or (6) an
individual complainant was intimidated, harassed or coerced
based on a business entity's treatment of such
complainant. See EFC No. 50-1 generally. Mr.
Stephens' qualifications, as he describes them in his
Report, does not include any, let alone expansive, experience
with or knowledge of any of these subject matters.
Id. Nor does Mr. Stephens enumerate education or
training of any kind in these subject matters. Id.
Stephens offers eight professional opinions in his Report.
1. The SCA Anthem Center is not a “Private Club
according to the referenced definition of the” ADA;
2. The fitness center at the SCA Anthem Center is a place of
“‘Public Accommodation' according to the
definitions found in the ADA” and deposition testimony
provided by “Seddon”;
3. Dementia is a disability under the ADA and FHA and, as
such, Mrs. Hillery was entitled to a reasonable accommodation
by the Board of the SCA Community Association;
4. The SCA “made no meaningful attempt to comply with
the ADA & FHA” as required by these laws because
the SCA treated Mrs. Hillery as
“non-accommodable” due to a “health and
5. Even if SCA's “efforts were considered good
faith, ” they fell short of what is required “to
comply with ADA & FHA … standards because SCA must
be made available to people with disabilities in the most
equal and integrated way possible”;
6. “[C]onditioning Mrs. Hillery's
access upon bringing her own caregiver ... was … the
most unequal and non-integrated approach to
accommodating her.” (Emphasis in original). There were
many less “severe” accommodations including
monitoring “unsafe fitness areas, ” “better
training for SCA staff, ” providing Mrs. Hillery with a
“chaperone … while she was on site” and
“many … other[s]”;
7. Providing any of the possible accommodations “would
not have fundamentally altered SCA's business” or
“presented an undue burden” for SCA, and Mrs.
Hillery did not pose a “direct threat” to herself
or others; and,
8. “SCA intimidated, harassed and coerced” Mr.
Hillery and Mrs. Hillery when it banned them from all SCA
common areas, trespassed Mrs. Hillery, and reported Mrs.
Hillery and her son, Mr. Hillery, to “the
ECF No. 50-1 at 3-4.
Defendant's Motion, Defendant argues that the Report and
Mr. Stephens as an expert must be struck because Mr. Stephens
offers legal conclusion rather than expert opinions. ECF No.
50 at 2:23; 3:23.
Rule 702 of the Federal Rules of Evidence
of expert testimony in a civil proceeding is governed by
Fed.R.Evid. 702, which states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Barabin v. Asent Johnson, Inc., 740 F.3d 457, 463
(9th Cir. 2014), the Ninth Circuit explains that “[w]e
have interpreted Rule 702 to require that expert testimony
… be both relevant and reliable.” (Internal
citations and quote marks omitted.) Relevancy, as stated by
the court, requires “the evidence … logically
advance a material aspect of the party's case.”
Id. (Citation omitted.) Reliability encompasses
“whether an expert's testimony has a reliable basis
in the knowledge and experience of the relevant
discipline.” Id. citing Kumbo Tire Co. Ltd. v.
Carmichael, 526 U.S. 137, 149 (1999).
“[E]videntiary reliability is based upon scientific
validity.” Id. citing Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 590 n.9 (1993). The role of
the Court, however, is not to determine the
“correctness of the expert's conclusions but the
soundness of his methodology.” Id. citing
Primiano v. Cook, 598, F.3d 558, 564 (9th Cir. 2010).
considering reliability, a flexible concept, the U.S. Supreme
Court suggests several factors for the Court to consider,
including: “1) whether a theory or technique can be
tested; 2) whether it has been subjected to peer review and
publication; 3) the known or potential error rate of the
theory or technique; and 4) whether the theory or technique
enjoys general acceptance within the relevant scientific
community.” United States v. Hankey, 203 F.3d
1160, 1167 (9th Cir.2000) (citing Daubert, 509 U.S.
at 592-94). But, whether these specific factors are
“reasonable measures of reliability in a particular
case is a matter that the law grants the trial judge broad
latitude to determine.” Barabin, 740. F.3d at
463 citing Kumho Tire, 526 U.S. at 153. As
explained in Barabin, “Rule 702 clearly
contemplates some degree of regulation of the
subjects and theories about which an expert may
testify.” Id. at 464 citing Daubert,
509 U.S. at 589.
Rule 704 of the ...