Court: United States District Court for the Western District of Washington
Case Name: Lister v. Hyatt Corp.
Citation: 2019 U.S. Dist. LEXIS 211764
The plaintiff retains a hospitality expert after she sustains injuries in a slip and fall accident in a hotel lobby. The expert, however, has an extensive human factors background. The defendant claims this disqualifies her. But the court explains, though her background could be more extensive, her human factor expertise is enough to qualify. The only testimony exclusion relates to an impermissible legal conclusion, not a lack of hospitality knowledge.
The plaintiff filed this lawsuit after a slip and fall at the defendant’s hotel. She claimed that she slipped and fell on vomit near the entrance to the women’s restroom in the lobby. The plaintiff reported injuries as a result of the fall. She retained a hospitality expert witness to testify about adequate housekeeping practices. Further, the expert intended to speak on the applicable standard of care in identifying and managing health hazards in the hospitality industry.
The Plaintiff’s Hospitality Expert Witness
The hospitality expert witness had a human factors background. She previously served as a research associate and a human factors engineering associate on several hundred legal cases. The expert was board certified as a safety professional and in professional ergonomics. She was also a certified XL Tribometrist (qualified to assess slip resistance on a walking surface) and a licensed project management professional. The hospitality expert witness was well acquainted with the risk management practices of hospitality businesses.
The defendant claimed the expert was not qualified to comment on the adequacy of the hotel’s housekeeping and housekeeping procedures. They further objected to the expert’s review of the inspection and cleaning cadences of their lobby and restrooms at the time of the incident. The defendant called to exclude the hospitality expert’s views on the hotel’s risk management program and comparison to the Safety by Design framework. The defendant argued that the expert did not explain why the framework extended to the hotel industry or this hotel in particular.
Second, the defendant argued that the expert’s initial opinion that wet flooring was a hidden hazard was unreliable. They explained she did not investigate the scene of the accident and did not check the coefficient of friction at the scene. Lastly, the defendant called to exclude the expert’s opinion that based on the information available to date, the plaintiff’s actions and/or inactions were consistent with foreseeable human behavior.
The court explained the expert was qualified to give testimony in this case. The fact that her background, including hospitality firms, could be more extensive than just hotels, did not disqualify her. Further, the expert clearly stated that the Safety by Design framework is part of a three-level hierarchical framework. Health and human factors professionals use this in developing a hazard management program. The court noted that the defendant’s objections on whether the framework extended to the hospitality industry affected the weight of the expert’s testimony. This could also be a potential area for cross examination.
The court also acknowledged that she did not examine the scene or perform on-site examinations, however, this did not justify omitting the expert’s testimony. Nevertheless, she was prohibited from claiming that the plaintiff was not responsible for the accident. The court explained the question of who was responsible for the accident and to what degree was the ultimate point of law in this case. Also, despite her expertise in human factors, the court allowed her to opine on the foreseeability of the plaintiff’s actions. The court explained such expert testimony did not overstep into the overarching question of law—foreseeability is usually a matter of fact.
The court granted in part and denied in part the defendant’s motion to exclude the hospitality expert’s testimony.
Key Takeaways for Experts
The expert here was challenged for having a slightly tangential background to what she was retained to speak on. The court finds the crossover is enough to admit her as an expert. But experts should use their professional judgment to ensure their backgrounds are a good fit for cases in areas that are not their primary specialty.