Court: United States District Court for the District of New Mexico
Case Name: Lilley v. CVS Health
Citation: 2019 U.S. Dist. LEXIS 47985
This case involves a carjacking that took place in a CVS Pharmacy parking lot. The plaintiff claims that he was attacked while sitting in his car in the parking lot of an Albuquerque, NM CVS, just before midnight. The carjacker shot the plaintiff, causing severe injuries. The plaintiff alleged that the exterior security cameras of CVS did not capture the incident and that the parking lot was unsafe well before the accident date. The plaintiff alleged that the defendant, CVS, acted negligently as a business owner for failing to make reasonable efforts to ensure that the site, which includes the parking lot, remained safe with sufficient security. The plaintiff filed a premises liability lawsuit against CVS and retained a security expert witness to support his case.
The Security Expert Witness
The security expert witness was a crime prevention specialist, retired Albuquerque Police Department (APD) officer, Crime Free Multi-House coach, and former owner and manager of residential properties. The expert opined that since there was a criminal history of the CVS store, this established a dangerous condition that posed a possible risk of injury to the plaintiff. She further opined that the plaintiff could not have known that the parking lot was in a dangerous condition when he arrived at the store on the night of the incident. The expert also testified that CVS behaved unreasonably by not mandating workers to report dangerous crimes to the management of the parking lot and they could have taken 11 reasonable measures to protect their customers from harm.
One such initiative, for example, would mandate CVS to create a clear line of communication between retail staff and management to keep managers aware of all crimes committed inside and outside the store (parking lot). The expert offered another measure in which CVS adds legible, easily visible, well-lit exterior signs indicating that the pharmacy is under 24-hour observation and is subject to routine police patrols and bait vehicles. To form her opinions, the security expert focused on a compilation of coded police service calls to the CVS site and police reports originating from computer-aided dispatch records starting three years before the accident date.
The defendant argued that the security expert lacked specialized knowledge that would allow the jury to understand the evidence or to assess the material facts because she was not a commercial premises security expert. Specifically, the defendant argued that her expertise with residential property maintenance and law enforcement was immaterial to the security of commercial premises. The defendant claimed that the expert was inexperienced with the protection of industrial facilities, as evidenced by her lack of familiarity with industry standards.
The defendant also argued that the expert neglected to focus her judgments on adequate facts or data because her study did not refer to any industry sources, empirical data, or studies. The defendant further argued that she did not use any consistent methodology to draw her conclusions.
The court noted that Rule 702 uses the liberal definition of “expert” and the experience of the security expert in the field of crime prevention in real estate, whether as a residential property manager or as an APD police officer, sufficiently qualified her as an expert whose specialized knowledge would help the jury to understand the evidence or to determine the facts in question. The court further noted that the expert’s findings were based on more than 28 calls from APD for the three years before the carjacking and shooting. The amount of data was sufficient to establish the criminal history of the CVS pharmacy and the parking lot. Whether that data was qualitatively reliable went to the weight of the expert’s opinions, not its admissibility.
The court noted that the expert did not cite any industry standards, studies, publications, or research. The security expert did not explain how she concluded from the dispatch evidence that the parking lot had produced a dangerous condition. She neither clarified how or why she had formed her conclusion nor presented a framework that could be checked or submitted to peer review. The expert failed to explain how or why the crime data correlated with the store interior automatically determines the risk of a parking lot. There was, thus, an analytical gap between the data that the expert applied and the conclusions she reached.
The security expert witness’s testimony was excluded.