United States District Court, E.D. Pennsylvania
E.K. PRATTER UNITED STATES DISTRICT JUDGE
discovery in this negligent-hiring case, plaintiff Elena
Myers Court designated Stephen Barth as her testifying expert
on hiring standards in the hospitality industry. Mr. Barth
produced a report, which Ms. Court cited in her failed
opposition to the hotel defendants' successful motion for
summary judgment. Once only the gym remained as a defendant
in the case, Ms. Court re-designated Mr. Barth as a
Mr. Barth's non-testifying designation, the gym
defendants have moved to take a videotaped trial deposition
of him. The Court denies the motion because Mr. Barth's
re-designation as a non-testifying expert shields him from
such a request.
Hiring and Assault
2014, the Loews Philadelphia Hotel contracted with the 12Fit
Gym to operate a spa in the hotel. 12Fit, in turn, hired
Jerome McNeill as a massage therapist without conducting a
criminal background check.
turns out that Mr. McNeill had a checkered past. In 2007, he
was arrested and charged with raping a minor. The charges
were ultimately withdrawn. In 2013, he was convicted of
reckless endangerment for fleeing a police officer on a
motorcycle. In 2014, shortly before joining 12Fit, Mr.
McNeill was fired from his job as a massage therapist at Hand
& Stone Spa for sexually assaulting a patron, leading to
criminal charges as to which he was acquitted in late 2016.
hiring Mr. McNeill, 12Fit did not verify Mr. McNeill's
employment history. Nor did 12Fit contact his prior employer,
Hand & Stone, to ask why Mr. McNeill no longer worked
there. The extent of 12Fit's research on Mr. McNeill was
to note that he had a then-valid Pennsylvania massage
September 14, 2014, Mr. McNeill sexually assaulted Elena
Myers Court, a Loews hotel guest, during a massage session.
Ms. Court sued both the Loews Hotel and the 12Fit Gym,
alleging negligent hiring, supervision, and retention. At the
summary judgment stage in late 2017, the Court dismissed the
Loews defendants from the case, leaving only the gym
Ms. Court's Expert and this Discovery Dispute
discovery, Ms. Court designated Stephen Barth as her expert
on the applicable standard of care. Mr. Barth, an alleged
expert on legal and safety issues in the hospitality
industry, produced a report concluding that the hotel and gym
had each breached their duties of care. Ms. Court then cited
the Barth report in her opposition to the hotel
defendants' motion for summary judgment. She did not cite
Mr. Barth in her opposition to the gym defendants' motion
for summary judgment.
the summary judgment phase of the case, Ms. Court has decided
not to call Mr. Barth at trial and has
“de-designated” him as a testifying expert. Ms.
Court and her counsel have confirmed this intention in
unequivocal terms. Now, the gym defendants claim that they
wish to use Mr. Barth as a witness. They have asked that he
appear for a videotaped trial deposition in lieu of live
testimony at trial. Evidently, Mr. Barth has written a
textbook on hospitality law that undercuts the report he
prepared in this case and is therefore favorable to the gym
Court has refused to make Mr. Barth available on the ground
that he is now a non-testifying consulting expert. In
response, the gym defendants filed this motion to compel,
requesting an order for Mr. Barth to appear “for a
videotaped trial deposition to address his expertise ...