Blanton v. The Cafero Company et al

Filing 87

ORDER denying Defendant's 83 MOTION to Strike Portions of Video-Taped Trial Deposition of Richard T. Hughes, P.E. Signed by Judge Robert C. Chambers on 10/30/2017. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

DEBBIE J. BLANTON,
Plaintiff,
v.

CIVIL ACTION NO. 3:15-10113

HUNTINGTON MALL COMPANY,
Defendant.
ORDER
Pending before the Court is Defendant’s Motion to Strike Portions of Video-Taped Trial
Deposition of Richard T. Hughes, P.E. (ECF No. 83). In addition to the briefing filed regarding
this motion, the parties also made additional arguments at the final settlement conference held
before the Court earlier today. Defendant requested that two different sections of testimony be
struck. After reading the pleadings and attached exhibits, and hearing argument, the Court does
not find support for the motion. Accordingly, for the reasons stated below, the Court DENIES
Defendant’s pending motion.
First, Defendant moves to strike a portion of Mr. Hughes’s testimony in which he suggested
carpet would have been a safer flooring material. Defendant claims that this was outside the bounds
of Mr. Hughes’s expert report. However, Mr. Hughes report clearly states that carpet would have
been more slip-resistant. Indeed, at the hearing, Defendant noted as much and moved to withdraw
that portion of the motion to strike.
Second, Defendant moves to strike a different portion of Mr. Hughes’s testimony because
Defendant claims that Mr. Hughes was providing “legal conclusions regarding the Plaintiff’s duty

to keep a lookout.” Def.’s Mot. to Strike, ECF No. 83, at 2. The Court disagrees with this
interpretation of Mr. Hughes’s testimony. Mr. Hughes stated, consistent with his apparent
experience and study in his given field, that people generally act in certain ways and that public
places should be designed with that general behavior in mind, in order to mitigate potential
hazards. The Court finds that Mr. Hughes properly testified within the bounds of his expertise and
did not provide mere legal conclusions. Additionally, later in the deposition, after Defendant had
lodged its objection for stating a legal conclusion, Defendant asked Mr. Hughes to state his
understanding of the law on a slightly different matter. Ex. to Def.’s Mot. to Strike, ECF No. 83-3,
at 56. Even if Mr. Hughes had stated the law before, Defendant cannot lodge an objection to the
statement of law where it does not like the answer, but elicit a statement of law where it may
benefit Defendant.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unpresented parties.

ENTER:

October 30, 2017

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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