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Gaylor v. Georgia Department of Natural Resources

United States District Court, N.D. Georgia, Gainesville Division

September 12, 2014

GARY GAYLOR, Plaintiff,
v.
GEORGIA DEPARTMENT OF NATURAL RESOURCES, et al., Defendants.

ORDER

RICHARD W. STORY, District Judge.

This action is before the Court on Plaintiff's Motion in Limine to Exclude the Expert Testimony of Michael Palacio [92] and Plaintiff's Motion in Limine to Exclude the Expert Testimony of Mike Galifianakis [93]. The Court's rulings are set out below.

Background

Plaintiff Gary Gaylor asserts claims under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794, for alleged disability discrimination at Unicoi State Park and Lodge near Helen, Georgia, and Vogel State Park near Blairsville, Georgia (the "Parks"). Defendants are the Georgia Department of Natural Resources ("GDNR") and Becky Kelley, in her official capacity as Director of GDNR's Parks, Recreation, and Historic Sites Division.

Plaintiff alleges that his ability to walk is impaired by multiple sclerosis, which requires him to use a cane or a wheelchair, and that he has had difficulty accessing the goods, services, programs, and activities at the Parks due to architectural barriers. Specifically, Plaintiff alleges that on his visits to the Parks he encountered the following barriers to access, each of which violates applicable federal regulations: (1) inaccessible parking due to excessive slopes, lack of mounted signage, lack of proper access aisles, inadequate dimensions, and cracked pavement; (2) inaccessible paths of travel due to excessive slopes, abrupt changes in level, and lack of proper handrails; (3) inaccessible curb cuts due to the presence of vertical changes in level or "lips" and excessive slopes; (4) inaccessible ramps due to lack of proper handrails and excessive slopes; (5) inaccessible restrooms due to lack of accessible routes to enter the restrooms, lack of proper door hardware, lack of grab bars in water closets, and lack of flush valves on correct side; (6) inaccessible picnic and seating areas due to lack of accessible routes and inaccessible dimensions; and (7) inaccessible primary function areas such as beaches, trails, lakeside activities, guest services, theaters, and seating due to lack of accessible routes, ramps, and proper handrails.

Plaintiff retained Nicholas Heybeck as an expert witness. Mr. Heybeck is a licensed professional engineer and registered accessibility specialist who is also experienced and has received training with respect to cost estimation. In November 2013, Mr. Heybeck inspected the Parks and took numerous measurements and photographs. In December 2013, Mr. Heybeck produced a report for each Park in which he identified property components that, in his opinion, do not comply with the 1991 ADA Standards for Accessible Design, the 1997 Uniform Federal Accessibility Standards, and the 2010 ADA Standards for Accessible Design. For each property component, Mr. Heybeck provided (1) the location and precise measurements of the component, (2) the applicable regulations, (3) an explanation of how the component failed to satisfy the regulations, (4) photographic evidence, (4) a recommendation for barrier removal, and (5) a line-item estimated cost for the barrier removal project. In all, Mr. Heybeck identified 148 barriers at Unicoi and 58 barriers at Vogel. He estimated the cost of removing the barriers at Unicoi to be $708, 862 and the cost of removing the barriers at Vogel to be $399, 952, for a total barrier removal cost of $1, 108, 814.

In January 2014, Defendants produced the reports of two rebuttal experts: Michael D. Palacio and Mike Galifianakis. Mr. Palacio, a Certified Professional Estimator, critiqued Mr. Heybeck's estimates of barrier removal costs. Mr. Galifianakis, an attorney, opined that Mr. Heybeck failed to apply the appropriate Title II program accessibility standard, and that the Parks were in compliance with that standard. Plaintiff has moved to exclude the testimony of both experts.

Discussion

I. Legal Standard

The admission of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which provides:

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:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles ...

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