Gaylor v. Georgia Department of Natural Resources et al

Filing 101

ORDER DENYING Plaintiff's 92 Motion in Limine to Exclude the Expert Testimony of Michael Palacio; GRANTING Plaintiff's 93 Motion in Limine to Exclude the Expert Testimony of Mike Galifianakis. Signed by Judge Richard W. Story on 09/12/14. (sk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
GARY GAYLOR,
Plaintiff,
v.
GEORGIA DEPARTMENT OF
NATURAL RESOURCES, et al.,
Defendants.

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CIVIL ACTION NO.
2:11-CV-288-RWS

ORDER
This action is before the Court on Plaintiff’s Motion in Limine to
Exclude the Expert Testimony of Michael Palacio [92] and Plaintiff’s Motion
in Limine to Exclude the Expert Testimony of Mike Galifianakis [93]. The
Court’s rulings are set out below.
Background
Plaintiff Gary Gaylor asserts claims under Title II of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and Section 504 of
the Rehabilitation Act (“RA”), 29 U.S.C. § 794, for alleged disability
discrimination at Unicoi State Park and Lodge near Helen, Georgia, and
Vogel State Park near Blairsville, Georgia (the “Parks”). Defendants are the

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Georgia Department of Natural Resources (“GDNR”) and Becky Kelley, in her
official capacity as Director of GDNR’s Parks, Recreation, and Historic Sites
Division.
Plaintiff alleges that his ability to walk is impaired by multiple
sclerosis, which requires him to use a cane or a wheelchair, and that he has
had difficulty accessing the goods, services, programs, and activities at the
Parks due to architectural barriers. Specifically, Plaintiff alleges that on his
visits to the Parks he encountered the following barriers to access, each of
which violates applicable federal regulations: (1) inaccessible parking due to
excessive slopes, lack of mounted signage, lack of proper access aisles,
inadequate dimensions, and cracked pavement; (2) inaccessible paths of
travel due to excessive slopes, abrupt changes in level, and lack of proper
handrails; (3) inaccessible curb cuts due to the presence of vertical changes
in level or “lips” and excessive slopes; (4) inaccessible ramps due to lack of
proper handrails and excessive slopes; (5) inaccessible restrooms due to lack
of accessible routes to enter the restrooms, lack of proper door hardware, lack
of grab bars in water closets, and lack of flush valves on correct side;
(6) inaccessible picnic and seating areas due to lack of accessible routes and
inaccessible dimensions; and (7) inaccessible primary function areas such as
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beaches, trails, lakeside activities, guest services, theaters, and seating due
to lack of accessible routes, ramps, and proper handrails.
Plaintiff retained Nicholas Heybeck as an expert witness. Mr. Heybeck
is a licensed professional engineer and registered accessibility specialist who
is also experienced and has received training with respect to cost estimation.
In November 2013, Mr. Heybeck inspected the Parks and took numerous
measurements and photographs. In December 2013, Mr. Heybeck produced
a report for each Park in which he identified property components that, in his
opinion, do not comply with the 1991 ADA Standards for Accessible Design,
the 1997 Uniform Federal Accessibility Standards, and the 2010 ADA
Standards for Accessible Design. For each property component, Mr. Heybeck
provided (1) the location and precise measurements of the component, (2) the
applicable regulations, (3) an explanation of how the component failed to
satisfy the regulations, (4) photographic evidence, (4) a recommendation for
barrier removal, and (5) a line-item estimated cost for the barrier removal
project. In all, Mr. Heybeck identified 148 barriers at Unicoi and 58 barriers
at Vogel. He estimated the cost of removing the barriers at Unicoi to be
$708,862 and the cost of removing the barriers at Vogel to be $399,952, for a
total barrier removal cost of $1,108,814.
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In January 2014, Defendants produced the reports of two rebuttal
experts: Michael D. Palacio and Mike Galifianakis. Mr. Palacio, a Certified
Professional Estimator, critiqued Mr. Heybeck’s estimates of barrier removal
costs. Mr. Galifianakis, an attorney, opined that Mr. Heybeck failed to apply
the appropriate Title II program accessibility standard, and that the Parks
were in compliance with that standard. Plaintiff has moved to exclude the
testimony of both experts.
Discussion
I.

Legal Standard
The admission of expert testimony is governed by Rule 702 of the

Federal Rules of Evidence, which provides:
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.
FED. R. EVID. 702.

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The trial court, as the gatekeeper, must determine that the testimony
is “sufficiently tied to the facts of the case that it will aid the jury in resolving
a factual dispute.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591
(1993) (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.
1985)). The trial court must also “make certain that an expert . . . employs
in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael,
526 U.S. 137, 152 (1999). The Eleventh Circuit has synthesized the existing
rules into a three-part inquiry:
Expert testimony may be admitted into evidence if: (1) the
expert is qualified to testify competently regarding the matter he
intends to address; (2) the methodology by which the expert
reaches his conclusions is sufficiently reliable as determined by
the sort of inquiry mandated in Daubert; and (3) the testimony
assists the trier of fact, through the application of scientific,
technical, or specialized expertise, to understand the evidence or
to determine a fact in issue.

City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)
(footnote and citations omitted).
II.

Motion to Exclude the Testimony of Michael D. Palacio
Michael D. Palacio is a Certified Professional Estimator with over 18

years of experience in construction cost estimating.

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In his report, Mr.

Palacio states that he has “both global and specific concerns” regarding the
“accuracy and credibility” of Mr. Heybeck’s cost estimates for recommended
barrier removal projects. Palacio Report [92-2] at 1. Mr. Palacio’s specific
concerns relate to nine of the barriers Mr. Heybeck identified at Unicoi and
seven of the barriers he identified at Vogel. Id. at 6-10. As to each of these
barriers, Mr. Palacio explains the shortcomings of Mr. Heybeck’s estimates
and calculates a “more realistic probable cost.” Id. at 1. Mr. Palacio’s global
concerns are that (1) a number of Mr. Heybeck’s estimates did not take into
consideration the full scope or level of complexity of the removal project;
(2) Mr. Heybeck relied on the RSMeans construction cost estimating
publication, which does not produce accurate cost information when used by
someone with little or no professional estimating experience to estimate the
cost of small projects; and (3) Mr. Heybeck failed to include costs for a general
contractor on projects spanning a number of trades, input and fees from an
architect and/or engineer for a number of the projects, and a construction
contingency to account for unforeseen conditions, market fluctuations,
unanticipated complexities, etc. Id. at 1-2.
Plaintiff argues that Mr. Palacio’s opinions should be excluded in whole
or in part because (1) his report does not specifically identify each barrier to
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which his “global concerns” apply; (2) his opinions on barrier removal costs
are not relevant to any issue in the case; (3) he is not qualified to testify
regarding the scope of work required or what fees an architect or engineer
might charge; (4) his opinions on scope of work and professional fees are
unreliable; (5) his opinion regarding construction contingency costs is wrong;
(6) his opinions regarding estimating the costs of small projects are based on
a misunderstanding; and (7) his opinions regarding unit pricing are not based
on any objective data. For the following reasons, the Court finds all of these
arguments without merit.
First, Plaintiff argues that Mr. Palacio’s report improperly fails to
identify all the barriers to which his “global concerns” apply. A testifying
expert’s report must contain “a complete statement of all opinions the witness
will express and the basis and reasons for them.”

Fed. R. Civ. P.

26(a)(2)(B)(i). The purpose of this requirement is so “opposing parties have
a reasonable opportunity to prepare for effective cross examination and
perhaps arrange for expert testimony from other witnesses.” Id. (advisory
committee notes to 1993 amendments). The Court finds that Mr. Palacio’s
report satisfies this requirement.

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Next, Plaintiff argues that Mr. Palacio’s opinions regarding barrier
removal costs are irrelevant because Defendants cannot assert an undue
burden defense to any of Plaintiff’s claims. For purposes of the current
motion, it is sufficient to note that Mr. Heybeck included estimates of barrier
removal costs in his report. Unless and until Plaintiff stipulates that he does
not intend to offer Mr. Heybeck’s estimates in evidence, Defendants are
entitled to present expert testimony rebutting the accuracy and credibility of
those estimates.
Plaintiff argues that Mr. Palacio is not qualified to testify regarding
scope of work or professional fees required for barrier removal projects . Mr.
Palacio has a bachelor’s degree in architecture from the Geogia Institute of
Technology, has been a Certified Professional Estimator since 2001, has been
President of his own construction cost and value management firm since
2006, and has extensive experience working on construction projects in parks
and other outdoor spaces. Palacio Report [92-2] at 3-4. Mr. Palacio testified
that he not only provides expert advice regarding construction costs but also
makes scope of work recommendations to keep a project on budget. Palacio
Dep. [94-3] at 8:10-13, 13:20-14:4, 14:19-22. Contrary to Plaintiff’s argument,
Mr. Palacio did not testify that he was not qualified to make such
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recommendations, only that he was not qualified “to lead the management of
the project[s].” Id. at 39:20-40:11. With regard to estimates of architecture
and engineering fees, contrary to Plaintiff’s contention, it is not necessary for
Mr. Palacio to be a licensed architect or engineer to provide estimates of such
fees on construction projects.

The Court concludes that Mr. Palacio is

qualified by education and experience to render opinions on both the scope of
work and professional fees required to complete the recommended barrier
removal projects.
Plaintiff argues that Mr. Palacio’s scope of work opinions are unreliable
because he considered aesthetics in forming his opinions. Plaintiff contends
that aesthetic concerns are irrelevant to an undue burden defense, and that
Mr. Palacio based his opinions on the “assumption that non-disabled persons
have a greater right to aesthetic access than disabled persons have to
physical access.” Mem. in Support of Pl.’s Mot. in Limine [92-1] at 17.
Contrary to Plaintiff’s argument, the record shows that Mr. Palacio did not
base his opinions on any assumptions about the rights of non-disabled
persons versus disabled persons but on industry standards requiring that
alterations be consistent with original design intent. Palacio Dep. [94-3] at
73:4-11; 92:23-93:10; 96:22-97:1.

Plaintiff’s legal argument about the
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relevance of aesthetic concerns to an undue burden defense has nothing to do
with whether Mr. Palacio reliably applied industry standards to the
recommended barrier removal projects.
Plaintiff argues that Mr. Palacio’s opinions regarding architecture and
engineering fees are unreliable because they are speculative and
contradictory. The Court’s review of Mr. Palacio’s report and deposition
testimony does not support this contention. Contrary to Plaintiff’s argument,
Mr. Palacio’s testimony that he did not need “outside input” to formulate his
cost estimates does not contradict his opinion that execution of some of the
recommended projects would require the services of an architect and/or
engineer.

Palacio Dep. [94-3] at 38:5-12.

Nor is Mr. Palacio’s opinion

contradicted by his testimony that he would not need the services of an
architect to estimate the cost of a hypothetical project to repave and restripe
a parking lot, although the owner might need an architect to design the
project and prepare drawings in order to obtain a permit. Id. at 23:11-24:6.
Likewise, Mr. Palacio’s estimate of the architectural fees his firm might
charge in connection with a hypothetical project to add three accessible
parking spaces to a pre-existing parking lot is not inconsistent with his
estimate of both architecture and engineering fees for a recommended Unicoi
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project that he found would include demolishing and replacing an elevated
concrete structure. Id. at 27:1-28:10; 113:6-115:11; Palacio Report [92-2] at
6.
Plaintiff argues that Mr. Palacio’s opinion that Mr. Heybeck omitted a
construction cost contingency is simply “wrong” because Mr. Heybeck
included such a contingency.

However, Mr. Palacio contends that Mr.

Heybeck did not include a contingency designed to cover “unforeseen
conditions” and “unanticipated complexities,” as opposed to costs that should
have been anticipated and included in the original scope of work. Palacio
Report [92-2] at 2 (emphasis added); Palacio Dep. [94-3] at 75:23-77:21.
Plaintiff may dispute this contention, but Mr. Palacio’s opinion is not clearly
wrong.
Plaintiff argues that Mr. Palacio’s criticisms of Mr. Heybeck’s cost
estimates for small projects are unreliable because he failed to recognize that
the RSMeans publication on which Mr. Heybeck relied provides for a
minimum labor/equipment charge. But Mr. Palacio contends that despite
providing

for

a

minimum

labor/equipment

charge

under

certain

circumstances, the RSMeans publication fails to take into account other
considerations relevant to estimating the costs of the small barrier removal
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projects recommended by Mr. Heybeck. These considerations include the fact
that the various projects are scattered throughout remote parks with difficult
terrain, and that some of the projects require the work of more than one
trade, which means that different crews must be mobilized and remobilized
in order to complete the various tasks. Palacio Dep. [94-3] at 58:15-19; 60:1961:19; 80:24-81:13; 86:6-88:4. Plaintiff may disagree that these are relevant
considerations or that the RSMeans publication fails to take them into
account, but Plaintiff has not shown that Mr. Palacio’s opinions in this regard
should be excluded as unreliable.
Finally, Plaintiff argues that all of Mr. Palacio’s opinions regarding
unit pricing should be disregarded because he does not rely on an objective
database like the RSMeans publication but merely “a number he has in his
head.” Mem. in Support of Pl.’s Mot. in Limine [92-1] at 25. Contrary to
Plaintiff’s argument, the evidence shows that Mr. Palacio does not merely
pull a number out of his head to estimate unit pricing but relies on the
knowledge he has developed through many years of experience as a
professional estimator. Palacio Dep. [94-3] at 12:13-22; 13:4-9. According to
Mr. Palacio, professional estimators generally rely on their knowledge and
experience rather than publications like RSMeans because such publications
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have limitations and can produce erroneous estimates if those limitations are
not taken into account. Id. at 40:15-21; 41:6-7; 41:19-42:4. Plaintiff may
disagree with Mr. Palacio’s opinions in this regard, but he has failed to show
that Mr. Palacio’s estimates of unit pricing based on his learning and
experience, in accordance with general industry practice, should be excluded
as unreliable.
II.

Motion to Exclude the Testimony of Mike Galifianakis
Since graduating from Georgia State University School of Law in 1992,

Manuel “Mike” Galifianakis has practiced primarily in the area of disability
law.

He has held positions as a staff attorney with the Persons with

Disabilities Law Center and as a technical information specialist with the
Southeast Disability and Business Technical Assistance Center. For the last
15 years, Mr. Galifianakis has served as State ADA Coordinator with the
Georgia State Financing and Investment Commission. As ADA Coordinator,
Mr. Galifianakis develops and implements programs and activities to advance
and monitor compliance by state agencies with the ADA. Galifianakis Report
[93-2] at 7-8.
Mr. Galifianakis was asked to “review the disability access to the
programs, services, and activities at Unicoi and Vogel” and did so “in
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accordance with his role as a technical resource on Americans with
Disabilities Act . . . issues for state government agencies.” Id. at 1. According
to Mr. Galifianakis, GDNR is subject to Title II’s mandate “that no qualified
individual with a disability shall, because of disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity.” Id. at 2 & n.1; see 42 U.S.C. § 12132. Citing
ADA regulations, Mr. Galifianakis states that “[t]hose services, programs, or
activities, when viewed in their entirety, must be readily accessible to and
usable by individuals with disabilities, and no qualified individual can be
excluded from participation because a public entity’s facilities are inaccessible
to or unusable by individuals with disabilities.” Id. at 2 & n.2; see 28 C.F.R.
§§ 35.149 & 35.150. This “program accessibility” standard, Mr. Galifianakis
states, applies to GDNR. Id. at 2.
Mr. Galifianakis goes on to describe in general terms GDNR’s and his
office’s “collaborative approach to ensure that the state park system, when
viewed in its entirety, is accessible to park visitors with disabilities.” Id. at
3. However, other than stating that $164,000 has been expended for access
improvements at Unicoi and $46,000 for access improvements to Vogel, Mr.
Galifianakis makes no reference to any facts specifically relating to the two
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parks at issue in this case. Id. at 3-4. Nevertheless, he concludes that “[t]he
programs, services, and activities at Unicoi and Vogel, when viewed in their
entirety, meet the ADA Title II program accessibility standard.” Id. at 6.
Mr. Galifianakis also opines that Plaintiff’s expert, Mr. Heybeck, failed
to apply “the correct program accessibility regulation in assessing disability
access at Unicoi and Vogel” because (1) he did not consider alternatives to
removing architectural barriers, such as providing program access at some
but not all locations or relocating a program to an accessible location; and
(2) he applied ADA design standards to outdoor developed areas to which the
standards “do not translate well.” Id. at 5-6. However, Mr. Galifianakis does
not identify any specific program, service, or activity at Unicoi or Vogel that
he contends could be or has been made accessible by means other than the
removal of architectural barriers. Nor does he identify any specific barrier
removal project recommended by Mr. Heybeck that he contends is based on
an inappropriate application of ADA design standards to outdoor developed
areas.
Plaintiff argues that Mr. Galifianakis’ opinions should be excluded in
their entirety because they (1) consist of impermissible legal conclusions,
(2) are based on erroneous legal presumptions, and (3) are not based on
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sufficient facts or data. Plaintiff also contends that Mr. Galifianakis’ report
fails to identify the facts on which he relies. The Court finds that Mr.
Galifianakis’ expert testimony must be excluded because it consists of
impermissible legal conclusions. In light of this finding, the Court need not
address Plaintiff’s other arguments.
Rule 704 of the Federal Rules of Evidence provides that “[a]n opinion
is not objectionable just because it embraces an ultimate issue.” FED. R.
EVID. 704(a). “An expert may not, however, merely tell the jury what result
to reach.” Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th
Cir. 1990) (citing advisory committee notes to Rule 704). Expert testimony
is admissible when it will assist the trier of fact in understanding the
evidence or determining a disputed issue of fact. FED. R. EVID. 702(a). But
“[e]xpert testimony that consists of legal conclusions cannot properly assist
the trier of fact in either respect” and is therefore inadmissible. Burkhart v.

Washington Metro. Area Transit Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997)
(citations omitted). Thus, “it is not for an expert to communicate a legal
standard – explicit or implicit – to the jury.” Sackman v. Balfour Beatty

Cmtys., LLC, No. CV 113-066, 2014 WL 4415938, at *26 (S.D. Ga. Sept. 8,
2014) (quoting Berry v. City of Detroit, 25 F.3d 1342, 1353-54 (6th Cir. 1994))
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(internal quotation marks omitted). “Although [a witness] may be qualified
as an expert, he is not qualified to compete with the judge in the function of
instructing the jury.” Id.
In drawing the line between an inadmissible legal conclusion and
admissible assistance to the trier of fact, a court should “determine whether
the terms used by the witness have a separate, distinct and specialized
meaning in the law different from that present in the vernacular. If they do,
exclusion is appropriate.” Burkhart, 112 F.3d at 1212 (quoting Torres v.

Cnty. of Oakland, 758 F.2d 147, 151 (6th Cir. 1985)). In Torres, a Title VII
case, the court held that an expert’s testimony that the plaintiff “had been
discriminated against because of her national origin” constituted an
inadmissible legal conclusion because “it tracked the language of the
applicable statute, and the term ‘discrimination’ has a specialized legal
meaning that is more precise than the lay understanding of the term.” Id.
On the other hand, “it would have been permissible for the expert to testify
as to whether national origin motivated the hiring decision [because]
[t]estimony phrased as such would address the factual issue of . . . intent
without implicating any legal terminology.” Id. (internal quotation marks
omitted). “In other words, an expert may offer his opinion as to facts that, if
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found, would support a conclusion that the legal standard at issue was
satisfied, but he may not testify as to whether the legal standard has been
satisfied.” Id. at 1212-13.
In this case, Mr. Galifianakis’ opinions consist of impermissible legal
conclusions rather than permissible factual opinions. Parroting the language
of 28 C.F.R. § 35.150, Mr. Galifianakis opines that GDNR “has complied with
its legal obligations under Title II because the programs, services, and
activities at [Unicoi and Vogel], when viewed in their entirety, meet the Title
II program accessibility standards.”

Galifianakis Report [93-2] at 2.

Referencing the same regulation, Mr. Galifianakis opines that neither of Mr.
Heybeck’s reports “applies the correct program accessibility regulation in
assessing disability access at Unicoi and Vogel.” Id. at 5. Both opinions track
the language of the regulation and use terms with specialized legal meaning.
Nowhere in his report does Mr. Galifianakis offer any opinion as to facts
relating to Unicoi or Vogel that, if found, would support a conclusion that
GDNR has complied with, or that Mr. Heybeck failed to apply, the applicable
legal standard. Instead, without reference to any facts relating to the two
parks at issue, he simply concludes that the applicable legal standard has
been satisfied, and that Mr. Heybeck failed to apply that standard.
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The cases cited by Defendants in support of the admissibility of Mr.
Galifianakis’ testimony are inapposite. In United States v. Johnston, 322
Fed. App’x 660 (11th Cir. 2009), the court held that a medical expert’s opinion
that prescriptions “were written without any legitimate medical purpose” was
properly admitted because it concerned issues of fact, not law. Id. at 667-68.
In Camacho v. Nationwide Mut. Ins. Co., No. 1:11-CV-3111-AT, 2014 U.S.
Dist. LEXIS 50193 (N.D. Ga. Mar. 31, 2014), the court held that an expert
could testify that an insurer had placed its own financial interests ahead of
its insured’s by unreasonably rejecting a settlement demand, but not that the
insurer’s conduct amounted to bad faith. Id. at *57-*58. In Huddleston v.

Herman & MacLean, 640 F.2d 534 (5th Cir. Unit A Mar. 1981), aff’d in part
and rev’d in part on other grounds, 459 U.S. 375 (1983), the court held that
it was proper to admit the expert testimony of a lawyer concerning the
interpretation given certain prospectus boilerplate language in the securities
industry because it related to the factual issues of scienter and materiality.

Id. at 552. None of these cases in any way suggests that an expert may
express an opinion as to the ultimate legal issue in a case, as Mr. Galifianakis
seeks to do.

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Finally, Defendants also cite Huezo v. Los Angeles Cmty. Coll. Dist.,
No. CV 04-9772 MMM(JWJx), 2007 WL 7289347 (C.D. Cal. Feb. 27, 2007).
In that case, the court granted the plaintiff’s motion for partial summary
judgment, relying in part on testimony by “a qualified expert in ADA
accessibility compliance” that “defendant is not ‘operating’ its programs,
services and activities in a manner that is ‘readily accessible to and usable by’
persons with mobility disabilities [as required by the ADA and § 504 of the
Rehabilitation Act].” Id. at *2. In Huezo, however, unlike this case, the
expert identified specific facts supporting his opinions. Id. at *2 & n.20
(expert identified 121 discrete barriers that interfered with plaintiff’s access
to defendant’s campus). Furthermore, in Huezo, no issue was raised as to
whether the expert’s testimony consisted of impermissible legal conclusions.

Id. at *2 n.18 (discussing objections to expert’s testimony). In another case,
where similar testimony by the same expert was challenged on this basis, the
court excluded the testimony on the grounds that it consisted of inadmissible
legal conclusions. Mannick v. Kaiser Found. Health Plan, Inc., No. C 03-5905
PJH, 2006 WL 1626909, at *19 (N.D. Cal. Jun. 9, 2006).

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Summary
For the foregoing reasons, the Court DENIES Plaintiff’s Motion in
Limine to Exclude the Expert Testimony of Michael Palacio [92] and
GRANTS Plaintiff’s Motion in Limine to Exclude the Expert Testimony of
Mike Galifianakis [93].
IT IS SO ORDERED, this 12th day of September, 2014.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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