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Keon Blake v. Securitas Security Services

May 1, 2013

KEON BLAKE,
PLAINTIFF,
v.
SECURITAS SECURITY SERVICES, INC.,
DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

On October 15, 2010, Plaintiff Keon Blake attended a dance at McKinley Technology High School in Washington, where he was a student. Defendant Securitas Security Services, Inc., a private contractor, was engaged to provide security for the dance. Some time that evening, after smoking what he believed to be marijuana, Blake jumped or fell from a third-floor balcony at the school, suffering serious injuries. He brings this action against Securitas, alleging that but for Defendant's negligent failure to appropriately seal off relevant areas of the school, he would not have been able to access the balcony.

During the course of discovery, both parties have named expert witnesses on different issues. Plaintiff has announced his intention to call Dr. William S. Garmoe, Ph.D., ABPP-CN, a neuropsychologist, as a rebuttal expert, and Defendant now moves to strike his testimony on grounds that Garmoe's report is not appropriate rebuttal or, in the alternative, that it fails to satisfy the reliability requirements of Fed. R. Evid. 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Agreeing that Garmoe's report is outside the scope of the opinions proffered by Defendant's experts, the Court will grant the Motion and strike his testimony.

I.Background

This is not the first time Garmoe's name has appeared in this case. Pursuant to the Court's Scheduling Order (ECF No. 8), Plaintiff served his initial Rule 26(a)(2) expert disclosure on January 15, 2013, listing Garmoe as a "Retained Expert" who was "performing neuropsychology testing on Keon Blake" and would "prepare a report discussing how Blake's injuries have affected his overall well-being and mental state." See Opp., Exh. 5 (Plaintiff's Rule 26(a)(2) Disclosure Statement) at 2. The disclosure statement did not include a report prepared by Garmoe outlining his opinions, their bases, or the facts and data upon which he relied. Id.

As a result, Securitas subsequently moved to strike Garmoe as an expert since Plaintiff's disclosure statement did not comply with the requirements of Fed. R. Civ. P. 26(a)(2). See Mot. in Limine to Strike Expert Testimony of William S. Garmoe (ECF No. 11). Instead of opposing such Motion, Plaintiff agreed not to call Garmoe as an expert witness. See Response to Mot. in Limine to Strike Expert Testimony of William S. Garmoe (ECF No. 13). Noting Plaintiff's concession, this Court granted Defendant's Motion in Limine by Minute Order on March 5, 2013.

On March 7, 2013, Defendant served its Rule 26(a)(2) statement, see Mot., Exh. B (Defendant's Rule 26(a)(2) Disclosure of Expert Testimony), listing two testifying experts: Michael Dorn, an expert on school safety and security, and Howard Levinson, an expert on security. Id. Several weeks later, Plaintiff served a rebuttal disclosure statement, again listing Garmoe as a testifying expert, this time including a report and other supporting documentation. See Mot., Exh. C (Plaintiff's Rebuttal Rule 26(a)(2) Statement). Once again, Securitas has filed a Motion to Strike.

II.Legal Standard

A district court has "'broad discretion in determining whether to admit or exclude expert testimony.'" U.S. ex rel. Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 895 (D.C. Cir. 2010) (quoting United States v. Gatling, 96 F.3d 1511, 1523 (D.C. Cir. 1996)). Federal Rule of Evidence 702, which governs the admissibility of such testimony, 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.

Id. Under Rule 702, trial courts are required to act as gatekeepers who may only admit expert testimony if it is both relevant and reliable. See Daubert, 509 U.S. at 589 (citing Fed. R. Evid. 702); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (applying Daubert's holding to non-scientific expert testimony); see also Calvetti v. Antcliff, 346 ...


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