Yates v. Bacco et al

Filing 81

PRETRIAL ORDER. Signed by Magistrate Judge Donna M. Ryu on 08/12/13. (dmrlc2, COURT STAFF) (Filed on 8/12/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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CRAIG YATES,

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Plaintiff(s),

No. C-11-01573 DMR
FINAL PRETRIAL ORDER

v.

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BACCO, et al.

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Defendant(s).
___________________________________/

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Following the Pretrial Conference held on July 17, 2013, and the further submissions of the
parties, the court hereby ORDERS the following:

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I. Trial Date: The court shall conduct a one-day bench trial on August 15, 2013

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commencing at 11:00 a.m. in Courtroom 5 of the U.S. District Court, 1301 Clay Street, Oakland,

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California 94612.

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II. Exhibits and Witnesses

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A. Plaintiff’s Exhibits

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Plaintiff submitted an exhibit list with 43 exhibits. [Docket No. 56.] Defendants did not

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object to any of the exhibits on this list. Accordingly, all of Plaintiff’s exhibits are admitted into

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evidence.

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B. Defendants’ Exhibits

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Defendants submitted an exhibit list with two exhibits. [Docket No. 58.] Plaintiff objected to
both of them.
i) Defendant’s Exhibit A
With respect to Exhibit A, a July 21, 2011 expert report by Kim Blackseth, the court

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overrules Plaintiff’s objection that it was not timely disclosed. Although Defendants did not file

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their formal expert disclosure until January 2, 2013, two weeks after the disclosure deadline,

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Defendants had provided Plaintiff with Mr. Blackseth’s report more than one year prior to that

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deadline. Plaintiff cannot identify any prejudice caused by Defendants’ late disclosure that they

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would be relying on Mr. Blackseth’s July 21, 2011 report at trial. Plaintiff had ample opportunity to
depose Mr. Blackseth before the January 15, 2013 expert discovery cut-off but chose not to do so.

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For the Northern District of California

United States District Court

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Plaintiff also objects to the Blackseth report on the grounds that it fails to provide adequate

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basis for the opinion that the removal of certain architectural barriers is “not readily achievable”

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pursuant to 42 U.S.C. § 12182(b)(2)(A)(iv). This objection goes to the weight of the evidence, not

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its admissibility. Plaintiff’s objection is overruled, and Exhibit A is admitted into evidence.

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However, as is discussed below with respect to Plaintiff’s motion in limine no. 7, Mr.

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Blackseth’s expert testimony will be limited to the opinions fairly encompassed in his report for

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which his report provides the facts or data considered by him in forming his opinions.

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ii) Defendant’s Exhibit B
Defendants’ Exhibit B is a November 9, 2012 “ADA compliance proposal” by John C.

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Farrow that purports to give a cost estimate for specified work on the “existing men’s room” on

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Defendant Bacco’s premises. Plaintiff objects that it lacks foundation, and cannot be authenticated

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because the individual who prepared the estimate is not listed as a trial witness and the exhibit is not

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otherwise self-authenticating. Plaintiff also objects on hearsay grounds. At the pretrial conference,

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Defendants acknowledged that Exhibit B was inadmissible. However, Defendants argued that it

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nevertheless could be considered as part of the basis for Mr. Blackseth’s expert opinions. See Fed.

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R. Evid. 703 (“An expert may base an opinion on [otherwise inadmissible] facts or data in the case

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that the expert has been made aware of or personally observed [if experts in the field would

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reasonably rely on such facts or data in forming an opinion.]”) Defendants confirmed at the pretrial

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conference that Exhibit B was created well after the completion of Mr. Blackseth’s report.

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Therefore, Exhibit B could not have been considered by Mr. Blackseth in formulating his opinions.

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Defendants did not supplement their expert report to put Plaintiff on fair notice that Mr. Blackseth’s

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testimony would encompass the cost estimates provided by Mr. Farrow. Exhibit B therefore is

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excluded from consideration in this case.

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III. Motions in Limine

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The court grants Plaintiff’s motions in limine (“MIL”) nos. 3, 4, 5 and 6. At the pretrial

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conference, Defendants conceded that the case names, case numbers and civil litigation indexes of

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cases filed by Plaintiff (MIL no. 3), Plaintiff’s financial status, receipt of social security and/or
disability benefits (MIL no. 4), the number of Plaintiff’s settlements (MIL no. 5), and the amount of

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For the Northern District of California

United States District Court

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settlement funds received by Plaintiff for any and all cases (MIL no. 6) are not relevant to the issues

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at trial.

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Plaintiff’s motion in limine no. 2 (the number of ADA lawsuits filed by plaintiff) is denied in

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part. Defendants may briefly elicit the total number of Plaintiff’s ADA lawsuits. Such information

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may be relevant to Defendants’ arguments on statutory damages for repeated visits to the restaurant,

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and whether Plaintiff’s actions were reasonable. The motion is granted to the extent that Defendants

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intend to elicit extensive or detailed testimony in this area.

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Plaintiff’s motion in limine no. 1 (the number of ADA claims made by plaintiff) is granted.
Testimony on this subject would be cumulative and of attenuated relevance.

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Plaintiff’s motion in limine no. 7 to exclude the testimony of Defendants’ expert Kim

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Blackseth is denied. However, Mr. Blackseth’s testimony will be restricted to opinions fairly

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encompassed and supported in his report. Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure

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requires a party’s expert witnesses to provide the opposing party with a written report containing,

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among other things, “(i) a complete statement of all opinions the witness will express and the basis

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and reasons for them; (ii) the facts or data considered by the witness in forming them; [and] (iii) any

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exhibits that will be used to summarize or support them.” Fed. R. Civ. P. 26(a)(2)(B). The “facts or

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data” provision is “interpreted broadly to require disclosure of any material considered by the

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expert, from whatever source, that contains factual ingredients. The disclosure obligation extends

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to any facts or data ‘considered’ by the expert in forming the opinions to be expressed, not only

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those relied upon by the expert.” Fed. R. Civ. P. 26, Advisory Committee Note (2010) (emphasis

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added). “If a party fails to provide information or identify a witness as required by Rule 26(a) . . .

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the party is not allowed to use that information or witness to supply evidence on a motion, at a

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hearing, or at a trial, unless the failure was substantially justified or is harmless.” Federal Rule of

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Civil Procedure 37(c)(1). “[This] self-executing . . . automatic sanction provides a strong

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inducement for disclosure of material that the disclosing party would expect to use as evidence,

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whether at a trial, at a hearing, or on a motion, such as one under Rule 56.” Fed. R. Civ. P. 37,

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Advisory Committee Note (1993).
Plaintiff is concerned that Mr. Blackseth will attempt to testify about the monetary costs of

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For the Northern District of California

United States District Court

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removing the architectural barriers at issue. Mr. Blackseth did not discuss cost in his report;

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Plaintiff therefore was not put on notice and did not have a fair opportunity to decide whether to

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depose Mr. Blackseth on that topic, and/or to designate a rebuttal expert. Allowing Mr. Blackseth to

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testify about the cost of various repairs or removal of architectural barriers would result in prejudice

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to Plaintiff. Mr. Blackseth will not be permitted to testify about the monetary cost of removing the

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architectural barriers at issue.

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IV. Additional Briefing

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The court ordered that by August 1, 2013, Plaintiff must submit any motion for leave to

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amend the complaint to add additional dates that Plaintiff visited Bacco. As plaintiff did not submit

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a motion, the complaint shall not be amended to add further visits by Plaintiff.

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The parties indicated at the pretrial conference that many of the factual and legal issues

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presented in the case are no longer in dispute, and the only issue that remains is whether the removal

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of four architectural barriers relating to the bathroom are readily achievable. Plaintiff also waived

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actual damages and indicated that he would seek only statutory damages.

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IT IS SO ORDERED.
Dated: August 12, 2013

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DONNA M. RYU
United States Magistrate Judge

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