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Elena Myers Court v. LLB GYM, LLC

United States District Court, E.D. Pennsylvania

June 28, 2018

ELENA MYERS COURT, Plaintiff,
v.
LLB GYM, LLC et al., Defendants

          MEMORANDUM

          GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE

         Introduction

         During 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 non-testifying expert.

         Despite 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.

         Background

         I. Hiring and Assault

         In 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.

         It 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 The charges were ultimately withdrawn.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.

         Before 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 license.

         On 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 defendants.

         II. Ms. Court's Expert and this Discovery Dispute

         During 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.

         Since 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 defendants.

         Ms. 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 ...


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