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Doe v. AE Outfitters Retail Co.

United States District Court, District of Maryland

January 8, 2015

Jane Doe
AE Outfitters Retail Co.,

Timothy J. Sullivan United States Magistrate Judge

Dear Counsel:

This matter is before the Court on Defendant AE Outfitters Retail Company’s (“AE”) Motion to Strike Plaintiff’s Rebuttal Expert Witness Disclosures (“Motion”) (ECF No. 22).[1]Having considered the Motion, Plaintiff Jane Doe’s (“Ms. Doe”) response in opposition (ECF No. 25), and AE’s reply (ECF No. 27), I find that a hearing is unnecessary. See Loc. R. 105.6. For the reasons set forth below, AE’s Motion will be denied.

The deadlines for disclosures under Fed.R.Civ.P. 26(a)(2) in this case were as follows:

September 11, 2014:

Plaintiff’s Rule 26(a)(2) disclosures

October 9, 2014:

Defendant’s Rule 26(a)(2) disclosures

October 23, 2014:

Plaintiff’s rebuttal Rule 26(a)(2) disclosures

(ECF No. 18.)

In her initial expert witness disclosures dated September 11, 2014, Ms. Doe designated Jack F. Dowling (“Mr. Dowling”) as an expert in security, [2] and stated that he would testify consistent with his report “that the criminal invasion of privacy and sexual assault Plaintiff experienced was patently foreseeable. . . .” (ECF No. 22-2 at 4.) Ms. Doe also stated that Mr. Dowling would testify as to the lack of security provided by AE and that he “may also testify regarding opinions offered by Defendant’s experts.” (Id.) Ms. Doe’s disclosure stated that she “reserve[d] the right to designate additional experts and/or to supplement this designation upon the completion of discovery.” (Id. at 5.)

AE made its expert disclosures on October 9, 2014. (See ECF No. 22-3.) AE designated an expert in security, James McNamara (“Mr. McNamara”), and stated that, consistent with his report, he would testify that “the alleged invasion of privacy of Plaintiff was not reasonably foreseeable, ” that AE’s security was reasonable, and that AE’s fitting rooms were “standard within the industry.” (Id. at 2-3.) AE also designated Mat Sabella (“Mr. Sabella”) as a “hybrid fact/expert witness” with expert opinions on “fitting room design in the retail clothing industry.” (Id. at 3.) Finally, AE designated Scott McBride (“Mr. McBride”) as a “hybrid fact/expert witness” in the field of loss prevention and security. AE did not provide expert reports for Mr. Sabella or Mr. McBride, but instead designated the experts’ deposition transcripts as containing their expert opinions. (Id.)

Ms. Doe made her rebuttal expert disclosures on October 23, 2014.[3] (See ECF No. 22-4.) She designated Steven Stern (“Mr. Stern”) “to testify in response to the opinions offered by Defendant’s experts.” (Id. at 3.) Specifically, Ms. Doe stated that Mr. Stern would state that the “photographing and/or videotaping [of] a customer in a fitting room equipped with a partial fitting room door was foreseeable.” (Id.) In addition, Mr. Stern would testify that “there is a strong likelihood” that photographs or videos of Ms. Doe would be posted to the Internet. Finally, Mr. Stern would testify that the “costs associated with monitoring the Internet for such images” were high and that the removal of any images from the Internet is costly and difficult. (Id.)

In its Motion, AE seeks (1) a finding by the Court that Ms. Doe’s disclosure was untimely, that the lateness is without substantial justification, and that the disclosure is prejudicial to AE; and (2) an order directing that Mr. Stern’s opinions may not be offered as evidence. In support of this request, AE argues that the “issue of foreseeability is an element in Plaintiff’s case in chief, ” and that Mr. Stern should have been designated as an expert on this issue in Ms. Doe’s initial disclosures. (ECF No. 27 at 2.) AE maintains that Ms. Doe designated a different expert (Mr. Dowling) as to the issue of foreseeability and the designation of Mr. Stern to “present new or different opinions” on the same subject violates the scheduling order. (Id. at 3.) AE also argues that Mr. Stern’s opinions about the likelihood of images being posted to the Internet, and the costs of monitoring for and removing such images, are “totally new opinions” concerning issues that were not “raised or discussed be Defendant’s expert.” (Id.)

Ms. Doe makes a number of arguments in opposition to AE’s Motion. (See ECF No. 25.) Principally, Ms. Doe argues that even assuming that her rebuttal disclosures were untimely, AE has not been prejudiced. In addition, Ms. Doe contends that on the whole, her rebuttal disclosures respond to AE’s expert disclosures. Finally, Ms. Doe notes that she expressly reserved the right to supplement her expert designations, and that this reservation was made in light of the parties’ agreement to delay expert discovery and the supplementation of expert reports until the conclusion of fact discovery. (Id. at 3.)

I must first determine whether Mr. Stern’s opinions constitute rebuttal evidence, or whether they are untimely initial disclosures. A rebuttal expert offers “evidence . . . intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C).” Fed.R.Civ.P. 26(a)(2)(D)(ii). Mr. Stern expresses opinions on two issues. First, he has an opinion about the foreseeability of this incident. Second, he has an opinion about the costs of monitoring for and seeking the removal of any images of Ms. Doe from the Internet. I will address these opinions in turn.

The question of Mr. Stern’s foreseeability opinion may be disposed of easily. AE designated three experts, at least one of which (Mr. McNamara) offered an opinion as to the issue of foreseeability. Mr. McNamara states that the invasion of Ms. Doe’s privacy was not reasonably foreseeable because for the three years preceding the incident, “no similar crimes had occurred at the American Eagle Outfitter store, or in the entire York Galleria Mall.” He also opines that the only “sexually motivated crimes” that happened at the York Galleria Mall were incidents of indecent exposure, which were factually dissimilar to this incident. (See ECF No. 22-3 at 8-10.) Mr. Sabella, who is designated as an expert in “fitting room design in the retail clothing industry, ” and Mr. McBride, who AE designated as an expert “in the field of loss prevention and security, ” did not submit expert reports. It is unclear whether either of the two have opinions about the issue of foreseeability.

To rebut Mr. McNamara’s opinion that the invasion of Ms. Doe’s privacy was unforeseeable, Ms. Doe offers the opinion of Mr. Stern. (ECF No. 22-4.) Mr. Stern states that contrary to Mr. McNamara’s report, the issue of “fitting room voyeurism” has been documented in dozens of news stories across the country. In addition, Mr. Stern states that there are an “overwhelming number of public and paid websites dedicated to ‘fitting room voyeurism’ . . . on the Internet.” (Id. at 10.) The last point Mr. Stern makes on the issue of foreseeability is that the gaps between the door and the floor and ceiling “allow[] readily available technology to slip under or over the door and into the dressing room stall” to film the person inside. (Id. at 11.) I find that these opinions are proper rebuttal opinions. Mr. McNamara based his opinion that this incident was not foreseeable on the lack of similar incidents around AE’s store at this location. To rebut this opinion, Mr. Stern ...

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