Boulac v. SMG et al

Filing 111

OPINION AND ORDER by Judge William P Johnson ; granting 98 Motion to Exclude (Re: 98 MOTION to Exclude Testimony of Defendant's Purported Expert, Steven A. Adelman ) (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
DEBORAH BOULAC,
Plaintiff,
vs.

No. 19-CV-197-WPJ-JFJ

SMG, a Pennsylvania General Partnership,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court1 upon Plaintiff Deborah Boulac’s Motion to Exclude
Testimony of Defendant’s Purported Expert, Steven A. Adelman, filed April 19, 2024. Doc. 98.
Defendant SMG filed a response (Doc. 100) to which Plaintiff Boulac replied (Doc. 101). Having
reviewed the parties’ briefing and the applicable law, the Court finds Plaintiff Boulac’s motion is
well-taken and therefore GRANTS the motion.
BACKGROUND
In this premises liability action, Plaintiff Boulac seeks damages for injuries she alleges she
sustained at the Bank of Oklahoma Center (“BOK Center”) in Tulsa, Oklahoma. Doc. 98 at 1.
Plaintiff Boulac, a member of the CBS Sports crew covering the NCAA Basketball Tournament
at the time, tripped on a cheerleader mat in a walkway. Id. The issue is whether Defendant SMG
breached or satisfied its duty of care owed to Plaintiff Boulac under Oklahoma law.
On February 26, 2024, Defendant SMG identified Steven A. Adelman as an expert to offer
testimony about “event safety standard of care.” Doc. 87; see Doc. 100-1 (Adelman Expert

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Chief United States District Court Judge William P. Johnson of the District of New Mexico was assigned this case
as a result of the Tenth Circuit Order designating Judge Johnson to hear and preside over cases in the Northern District
of Oklahoma.

Report). Specifically, Defendant SMG intends to offer three opinions Adelman reached “regarding
the parties in this case and the industry standards for event safety:”
Opinion 1: To the extent that Deborah Boulac tripped and fell over a mat that had
been used by cheerleaders warming up in the back of house production area of BOK
Center, SMG met its duty of care by ensuring the mat was wholly outside the
marked walkway designated for production workers such as Ms. Boulac.
Opinion 2: Ms. Boulac failed to meet her duty to maintain reasonable situational
awareness under the busy circumstances presented by the NCAA tournament.
Opinion 3: Ms. Boulac’s breach of her own duty of care was a proximate cause of
her unfortunate injuries.
Doc. 100-1 at 7.
Plaintiff Boulac contends that Adelman should not be permitted to testify because he lacks
the knowledge, skill, experience, or education to qualify as an expert; Adelman’s opinions do not
help the jury to understand the evidence or determine the facts in issue; and Adelman’s testimony
is not supported by sufficient facts or data, or the product of reliable methods. Doc. 98. In sum,
Plaintiff Boulac contends Defendant SMG “is attempting to pass a litigation-experienced lawyer
as an expert witness in a premises liability case.” Id. at 14.
DISCUSSION
Rule 702 of the Federal Rules of Evidence (“Rules”) 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 the proponent
demonstrates to the court that it is more likely than not that:
(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’s opinion reflects a reliable application of the principles and methods
to the facts of the case.

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Fed. R. Evid. 702. Rule 702 incorporates the principles of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137 (1999), which assign to the district judge a gatekeeping role to ensure that proposed expert
testimony, even non-scientific and experience-based expert testimony, is both reliable and
relevant. See Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (trial judge must
determine whether the testimony has a reliable basis in the knowledge and experience of the
relevant discipline).
The gatekeeping function involves a two-step analysis. First, the Court must determine
whether the expert is qualified by knowledge, skill, experience, training, or education to render an
opinion. See Fed. R. Evid. 702. Second, if the witness is so qualified, the Court must determine
whether the expert’s opinions are reliable under the principals set forth in Daubert and Kumho
Tire. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001). Trial
courts have broad discretion in “both deciding how to assess an expert’s reliability, including what
procedures to utilize in making that assessment, as well as in making the ultimate determination
of reliability.” United States v. Velarde, 214 F.3d 1204, 1208–1209 (10th Cir. 2000) (citations
omitted). It is the proponent of the expert testimony who bears “the burden of showing that its
proffered expert’s testimony is admissible.” United States v. Nacchio, 555 F.3d 1234, 1241 (10th
Cir. 2009).
1.

Qualifications
To qualify as an expert, a proposed witness must possess “such skill, experience or

knowledge in that particular field as to make it appear that his opinion would rest on substantial
foundation and would tend to aid the trier of fact in his search for truth.” LifeWise Master Funding
v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004) (internal quotation marks omitted). An expert who

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“possesses knowledge as to a general field” but “lacks specific knowledge does not necessarily
assist the jury.” City of Hobbs v. Hartford Fire Ins. Co., 162 F.3d 576, 587 (10th Cir. 1998). The
Court must determine whether the expert’s qualifications are both “adequate in a general,
qualitative sense (i.e., ‘knowledge, skill, experience, training or education’ as required by Rule
702) and [] specific to the matters he proposed to address as an expert.” In re Williams Securities
Litigation, 496 F. Supp. 2d 1195, 1232 (N.D. Okla. 2007). The Court has broad discretion in
determining the competency of expert witnesses. United States v. Nichols, 169 F.3d 1255, 1265
(10th Cir. 1999).
In his February 26, 2024, Rule 26 expert report, Adelman stated his qualifications “are set
forth in the attached curriculum vitae, and a list of publication appears” on his website. Doc. 1001, at 7. And on May 10, 2024, Adelman provided further information and qualifications in an
affidavit attached to Defendant SMG’s response brief. See Doc. 100-2, at ⁋⁋ 3–7.2 Based on
Adelman’s CV (attached to Plaintiff Boulac’s motion, Doc. 98-1), Plaintiff Boulac’s motion (Doc.
98), and Adelman’s affidavit (Doc. 100-2), Adelman’s qualifications are set out below.
Adelman describes himself as “an authority regarding safety at live events, particularly
crowd management and event security.” Doc. 98-1 at 1. He received a Bachelor of Arts in
American Studies from Tufts University in 1985, a Master of Arts in History from the University

2
The Court understands Plaintiff Boulac’s argument that Adelman’s affidavit, attached to Defendant SMG’s response
brief (Doc. 100-2), violates Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure since it was disclosed three
months past the Court’s expert report deadline. Doc. 101 at 1–2; see Doc. 72 (expert report deadline 2/26/2024). Rule
26(a)(2)(B) commands that an expert report must contain, inter alia, the witness’s qualifications. However, an expert
report may be supplemented when required under Rule 26(e). Fed. R. Civ. P. 26(a)(2)(E). In turn, Rule 26(e)(2) states
that for an “expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends
both to information included in the report and to information given during the expert’s deposition. Any additions or
changes to this information must be disclosed by the time the party’s pretrial disclosures . . . are due.” The Court will
not exclude Adelman’s testimony or strike his affidavit on this ground because, when ruling from the briefs/record
and not a hearing, the Court needs to have enough evidence to perform its duty in assessing the relevance and reliability
of an expert’s proposed testimony. See United States v. Call, 129 F.3d 1402, 1405 (10th Cir. 1997); see also United
States v. Nacchio, 555 F.3d 1234, 1253–56 (10th Cir. 2009) (explaining burden is on proponent of expert to request
Daubert hearing).

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of Massachusetts in 1989, and a Juris Doctor from Boston College Law School in 1994. Id. at 2.
Since 2010, Adelman practiced as an attorney with Adelman Law Group, PLLC, “focusing on risk
and safety at live events throughout North America.” Id. at 1. He is the “Vice President of [an]
international trade association,” Event Safety Alliance, since 2012; and is the principal author of
“Crowd Management,” “Event Security,” “Event Safety Alliance Reopening Guide,” and editor
of the forthcoming “Event Safety Guide,” second edition. Id. Adelman was also an adjunct faculty
member at Arizona State University, teaching “Risk management in Venues,” and an online
“Sports Facilities Management” course. Id. Finally, Adelman has further publications in the area
of event safety, has interviewed with various media outlets, and has given presentations to various
event safety industry groups. Id. at 2. Regarding testimonial experience, Adelman was retained
“as a standard of care expert in prominent event-related lawsuits,” including the 2011 Indiana State
Fair stage roof collapse, the 2017 Route 91 Harvest Festival shooting in Las Vegas, and the 2021
Astroworld festival crowd rush. Doc. 100-2 at ⁋ 4(f).
Plaintiff Boulac contests Adelman’s qualifications. Doc. 98 at 3–6, 9–10. She argues that
Adelman’s “education and work history demonstrate that he lacks the necessary experience to
opine on event safety standards of care or Human Factors Engineering principles and definitions.”
Doc. 98 at 3. Identifying Adelman’s prior testimony in a personal injury case on February 7, 2024,
Plaintiff Boulac critiques that Adelman is not qualified as an expert here because Adelman’s
educational background consists of an undergraduate degree in American Studies,
a master’s degree in History and a law degree. He testified to never taking any
classes on live event operations or crowd management, either during school or since
graduation from law school. He admitted also not having any licenses or
certifications in these, or the event safety fields. [Adelman] has never actually
worked as an event operator. In his years as a litigator, he did not handle a single
trip and fall type case. He readily admits to having no expertise, training, or even
understanding of Human Factors Engineering principles. . . .
Doc. 98 at 9.
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Defendant SMG’s response to Plaintiff Boulac’s qualification arguments is wanting. In
response, Defendant SMG concludes that Adelman “possesses the knowledge, skill, experience,
education,” and “qualif[ies] as an expert” to assist the jury on “front of house” and “back of house”
“standard of care requirements.” Doc. 100 at 2. Defendant SMG assumes the qualification prong
is met without addressing Plaintiff Boulac’s arguments and jumps right to the necessity of
Adelman’s expert testimony. Id. Regardless, given Adelman’s extensive background in event
safety at live events, including many publications and being the vice-president of an international
trade association (“Event Safety Alliance”), the Court concludes that Adelman is qualified in the
area of event safety. The Court proceeds to the reliability and relevance analysis.
2.

Reliability and Relevance
Though Adelman is qualified on event safety, his testimony may be allowed only if the

following requirements are met:
(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’s opinion reflects a reliable application of the principles and methods
to the facts of the case.
Fed. R. Evid. 702. At this stage, the proffered expert testimony must be both reliable and relevant,
that is, the evidence must be helpful to the jury. See Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th
Cir. 2013) (citation omitted). And under Kumho Tire, a reliability finding is a prerequisite for all
expert testimony in areas beyond the knowledge and experience of lay jurors, not just technical or
scientific evidence. 526 U.S. 137, 141 (1999). In Kumho Tire, the Supreme Court emphasized that
the Daubert factors3 are not a definitive checklist or test and that a court’s inquiry into reliability

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To assist in the assessment of reliability, the Supreme Court in Daubert listed four nonexclusive factors that the trial
court may consider: (1) whether the opinion at issue is susceptible to testing and has been subjected to such testing;
(2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error

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must be tied to the facts of a particular case. Id. at 150. Also, according to Kumho Tire, the trial
judge must have considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable. Id. at 152.
Adelman’s testimony is neither reliable nor relevant. At the outset, and perhaps most
importantly, Adelman’s three opinions—Defendant SMG met its duty of care, Plaintiff Boulac
failed to meet her duty, and Plaintiff Boulac breached her duty of care— are all legal conclusions.
Whether Defendant SMG reasonably knew or should have known of the alleged dangerous
condition, and whether it acted reasonably in mitigating and protecting against the danger, are
factors in determining whether an owner is liable to an invitee under Oklahoma law.4 These
ultimate questions are for the jury to decide based on evidence presented at trial. It is not
appropriate for an expert to opine on these matters. Specht v. Jensen, 853 F.2d 805, 809–10 (10th
Cir. 1988) (holding that expert testimony is proper “if the expert does not attempt to define the
legal parameters within which the jury must exercise its fact-finding function,” but “when the
purpose of testimony is to direct the jury’s understanding of the legal standards upon which their
verdict must be based, the testimony cannot be allowed”); see, e.g., Aragon v. Lowe’s Home
Centers LLC, 2023 WL 2813212, at *1–2 (D. Colo. April 6, 2023) (excluding expert testimony
because the opinions were legal conclusions on whether Lowe’s breached its duty regarding icy
conditions on a sidewalk).

associated with the methodology used and whether there are standards controlling the technique’s operation; and (4)
whether the theory has been accepted in the scientific community. 509 U.S. at 593–94. The list is not exclusive and
district courts have broad discretion to consider a variety of other factors. Kumho Tire, 526 U.S. at 150; Dodge, 328
F.2d at 1222.
4
It is the duty of the [owner/occupant] to use ordinary care to keep [his/her/its] premises in a reasonably safe condition
for the use of [his/her/its] invitees. It is the duty of the [owner/occupant] either to remove or warn the invitee of any
hidden danger on the premises that the [owner/occupant] either actually knows about, or that [he/she/it] should know
about in the exercise of reasonable care, or that was created by [him/her/it] [or any of [his/her/its] employees who
were acting within the scope of their employment]. This duty extends to all portions of the premises to which an
invitee may reasonably be expected to go. OUJI, Instruction No. 11.10, Duty to Invitee to Maintain Premises—
Generally.

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Next, Adelman’s testimony would not help the jury understand the evidence or to
determine a fact in issue. Defendant SMG and Adelman focus almost exclusively on delineating
between supposed different standards of care for the “front of the house” and the “back of the
house.” See Doc. 100 at 2, 6; Doc. 100-1, at 4–6. But as Adelman acknowledges (and as Plaintiff
Boulac points out), “[t]here is no standard of care that requires venue operators to store thick mats
any particular distance away from brightly marked paths of travel in a back of house production
area such as BOK Center during an NCAA tournament.” Doc. 100-1 at 4. The Court agrees with
Plaintiff Boulac that the duty placed upon Defendant SMG in this premises liability action is that
of ordinary care, see supra n.4, and is also dependent upon the status of the Plaintiff as invitee.
Therefore, expert testimony on different “front of house” and “back of house” duties of care would
mislead and confuse the jury on the applicable standard of care and is not relevant.
Adelman also spends considerable time discussing “situational awareness,” stating it is
associated with common phrases such as “keep your head on a swivel,” or if you “see something,
say something.” Doc. 100-1 at 4–6.5 The Court agrees with Plaintiff Boulac that such testimony
on situational awareness does not require specialized knowledge and would be commonly known
and easily understood by the jury, thus not requiring expert testimony.
Further, Adelman’s testimony is not supported by sufficient facts or data, or reliable
principles and methods. Adelman’s opinions are based upon the various court documents filed in
this case (complaint, motion for summary judgment, discovery responses), BOK Center contracts,
incident reports, depositions, and a report of findings by A. Cord Adams (Plaintiff Boulac’s expert
witness). Doc. 100-1 at 7. Plaintiff Boulac points out that Adelman’s opinion “appears to be based

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Within the “situational awareness” discussion, Adelman also states he relies on “human factors engineering.”
However, Adelman is not qualified in the field of “human factors engineering.” See Doc. 98, at 5 (Plaintiff Boulac
identifying Adelman’s lack of human factors engineering qualification).

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on a photograph taken by Defendant’s counsel years after the incident that does not depict the
conditions” at the time of the incident; Adelman “never inspected the area where Ms. Boulac fell,”
or “took [any] measurements or conducted any tests in the area;” and “ignores relevant statutes,
codes, ordinances and standards that are available,” as identified by Plaintiff Boulac’s expert. Doc.
98, at 11–13. In this regard, Adelman’s testimony is based on subjective belief or unsupported
speculation and is thus not based on sufficient facts or data, nor reliably applied. See Aragon v.
Lowe’s Home Centers LLC, 2023 WL at *2 (expert failing to identify any codes or industry
standards governing property management, thus confessing that there are no “methodologies,
techniques, or approaches” for the reliability analysis); Woods v. Ross Dress for Less, Inc., 2019
WL 4305742, at *3–4 (N.D. Okla. Sept. 11, 2019) (expert testimony excluded because expert
looked up only some codes; reviewed a video and a statement of the incident; looked at some
photographs; only visited the site once 13 months after the incident; did not talk to the plaintiff or
any witnesses; and did not take measurements, or inspect the walkway); see also Jetcraft Corp. v.
Flight Safety Int’l, 16 F.3d 362, 366 (10th Cir. 1993) (expert testimony excluded as professional
speculation); Eastridge Dev. Co. v. Halpert Assocs., Inc., 853 F.2d 772, 783 (10th Cir. 1988)
(expert testimony excluded as “tentative and speculative”).
Lastly, Defendant SMG—although correctly identifying the Daubert standard and the
burden it carries—fails to meaningfully satisfy its burden at each step of the analysis
(qualifications, reliability, and relevance). Instead, Defendant SMG focuses solely on the supposed
difference between “back of house” and “front of house” standards of care. See Doc. 100; See
United States v. Nacchio, 555 F.3d 1234, 1241, 1251 (10th Cir. 2009) (the proponent of the expert
bears the burden by a preponderance of the evidence to establish that the requirements for
admissibility have been met).

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CONCLUSION
Expert witnesses must be qualified, and their testimony must be both reliable and relevant.
Kumho Tire, 526 U.S. 137, 141 (1999). Although Adelman is qualified in the area of event safety,
his testimony is excluded primarily because his opinions are all legal conclusions that invade the
province of the jury, Specht v. Jensen, 853 F.2d 805, 809–10 (10th Cir. 1988). His testimony is
also excluded because his opinions would not aid the jury in understanding a fact in issue, are not
based upon sufficient facts or data, are not the product of reliable principles and methods; and
because Defendant SMG failed to satisfy its burden at each stage of the analysis.
IT IS THEREFORE ORDERED that Plaintiff Boulac’s Motion to Exclude Testimony
of Defendant’s Purported Expert, Steven A. Adelman (Doc. 98), is GRANTED.

/s/
WILLIAM P. JOHNSON
UNITED STATES DISTRICT JUDGE

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