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Hillery v. Sun City Anthem Community Association Inc.

United States District Court, D. Nevada

October 11, 2019

THOMAS HILLERY, an individual, and as Guardian Ad Litem for MARY JANE HILERY, an adult, Plaintiffs,



         Before 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 as follows.


         This 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 Defendant's Motion..

         Plaintiffs, 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 disability.

         This 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.

         In the 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.” Id.

         In the 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.

         Mr. Stephens offers eight professional opinions in his Report. These include:

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 safety issue”;
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 authorities.”

ECF No. 50-1 at 3-4.

         In 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.


         I. Rule 702 of the Federal Rules of Evidence

         Admissibility 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.

         In 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).

         When 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.

         II. Rule 704 of the ...

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