United States District Court, D. Nebraska
MEMORANDUM & ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Exclude, ECF No.
42, filed by Plaintiff Zach Hillesheim. For the reasons
stated below, the Motion will be denied.
29, 2018, Defendant, O.J.'s Cafe, Inc. (O.J.'s Cafe),
filed a Motion for Summary Judgment, ECF No. 34. In support
of that Motion, O.J.'s Cafe asserts that
Hillesheim's claim is moot because O.J.'s Cafe
retrofitted its premises to eliminate any conditions that
allegedly violated ADA accessibility requirements. In support
of O.J.'s Cafe's contention that Hillesheim's
claim is moot, O.J.'s Cafe submitted the Supplemental
Expert Report of Larry Fleming, ECF No. 36-7. Hillesheim
seeks to exclude the Supplemental Report and related
testimony under Federal Rule of Evidence 702 on the basis
that it is not the product of reliable principles and
Cafe argues that the Court should not exclude Fleming's
Supplemental Report or testimony for purposes of O.J.'s
Cafe's Motion for Summary Judgment because Hillesheim
failed to depose Fleming regarding his methodology after
Fleming issued his initial report, using the same
methodology. O.J.'s Cafe also cites Fleming's vast
experience and argues that his methodology is reliable even
if it does not appear to be in strict compliance with
methodology contained in the ADA Accessibility Survey Forms
and Instructions (“ADA Instructions”) published
by the U.S. Department of Justice.
Rule of Evidence 702, which governs the admissibility of
expert testimony, states:
A witness who is qualified as an expert by knowledge, skill,
experience, training or education may testify in the form of
an opinion or otherwise if . . . (c) the testimony is the
product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the
facts of the case.
Evid. 702. The district court possesses a gatekeeping
function in evaluating the reliability of expert testimony.
Lauzon v. Senco Products, Inc., 270 F.3d 681, 685
(8th Cir. 2001). “The proponent of the expert testimony
must prove its admissibility by a preponderance of the
evidence.” Id. (citing Daubert v. Merrell
Dow Pharm., 509 U.S. 579, 592 (1993)).
assessing reliability, the Court should consider the factors
outlined in Daubert including whether the proposed
expert's theory, methodology or technique: 1) can be and
has been tested; 2) has been subjected to peer review and
publication; 3) has a known or potential rate of error; and
4) is generally accepted by the relevant community.
Bland v. Verizon Wireless, (VAW) L.L.C.,
538 F.3d 893, 896 (8th Cir. 2008) (citing Ahlberg v.
Chrysler Corp., 481 F.3d 630, 635 (8th Cir. 2007).
“[A] trial court may consider one or more of
the more specific factors that Daubert mentioned
when doing so will help determine that testimony's
reliability.” Kumho Tire Co., v. Carmichael,
526 U.S. 137, 141 (1999). (emphasis in original). This list
of factors is not exclusive, and this Court is allowed
“great flexibility” in its analysis. Jaurequi
v. Carter Mfg. Co., 173 F.3d 1076, 1082 (8th Cir. 1999)
(citing Daubert, 509 U.S. at 593, 594). The
reliability inquiry is “designed to ‘make certain
that an expert, whether basing testimony upon professional
studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.'”
Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757
(8th Cir. 2006) (quoting Kumho Tire Co., 526 U.S. at
initial report and Supplemental Report make clear that he
only addressed the areas identified by Hillesheim as
non-compliant with ADA Accessibility Guidelines
(“ADAAG”) 1991 or 2010. Fleming Supp. R., ECF No.
36-7, Page Id. 149, 155; Fleming Expert R., ECF No.
41-1, Page ID 283. In his Supplemental Report, Fleming
concluded that O.J.'s Cafe's premises are now ADA
argues Fleming's conclusions in the Supplemental Report
were not the product of reasonable methods because the
Supplemental Report does not show he used the methodology
contained in the ADA Instructions. Pl.'s Mem., ECF No.
43, Page ID 293-94. Specifically, Hillesheim contends that
nothing in the Supplemental Report suggests Fleming took
cross-slope measurements, or sought out the steepest slopes,
or cleared away rocks or debris prior to taking measurements.
record shows that Fleming is an architect with over thirty
years of experience in the field of ADA accessibility.
Fleming Decl., ECF No. 36-3, Page ID 115. He stated that at
the time of his initial inspection, he found slopes exceeding
2% in O.J.'s Cafe's parking area and access aisles in
violation of ADA Accessibility Guidelines
(“ADAAG”)  4.6.3. Fleming Expert R., ECF
41-4, Page ID 283. His opinions in his Supplemental Report
were based on his review of O.J.'s Cafe's retrofits
after his initial August 8, 2017, inspection. Fleming Supp.
R., ECF No. 36-7, Page ID 149. His Supplemental Report stated
that he “found the accessible parking space and access
aisles had slopes that did not exceed 2%.” Id.
Fleming stated it is his opinion that the allegedly
non-compliant conditions cited by Hillesheim in his Complaint
and expert's report have been fully retrofitted and that
“[a]ll of those elements now comply with the
requirements of ADAAG.” Fleming Supp. R., ECF No. 36-7,
Page ID 155. Fleming's photographs make it clear that,
during his June 20, 2018, inspection, he took measurements of
the parking area, access aisles, and ramp, using a digital
level. Fleming Supp. R., ECF No. 36-7, Page ID 150-54. The
ADA Instructions referenced by Hillesheim state that the most
effective way to measure slope is to use a digital level. ADA
Instructions, ECF No. 44-1, Page ID 305. The inclusion of
this method in the ADA Instructions shows that determining
slope by ...