IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



AMANDA HARTZOG, individually,

and as next friend of JAHMIL PEREZ,

a minor



Plaintiffs, SX-04-CV-095



)

)

)

V. ) ACTION FOR: DAMAGES

)

UNITED CORPORATION, d.b.a. )

PLAZA EXTRA, )

)



Defendants. )



)



MEMORANDUM OPINION



This Case was initially filed on February 29, 2004. On July 1, 2005,

Defendant served Plaintiff with the First Demand for Production of Documents,

which included requests for experts’ curriculum vitae and expert reports. On

December 7, 2009, Defendant filed Motion and Brief in Limine to Exclude Plaintiff

from Naming Expert Witnesses. On December 16, 2009, Plaintiff served Defendant

with Notice of Expert Retention of Robert J. Anders as Retail Expert. On December

21, 2009, Plaintiff served Defendant with Notice of Lay Expert, Olasee Davis.



On January 25, 2010, Defendant filed a Motion and Brief to Strike Plaintiff's

“Lay Expert.” On February 25, 2010, Plaintiff filed a Memorandum in Opposition to

Defendant’s Motion to Strike “Lay Expert.” On March 9, 2010, Defendant filed a

Reply Brief Re: Motion to Strike Plaintiffs “Lay Expert." On March 16, 2010, a Court

Order rescheduled a Calendar Call for October 18, 2010, and set jury selection and



trial beginning on November 1, 2010, through November 26, 2010.

Hartzog v. United Corporation; SX-04-CV-095

MEMORANDUM OPINION - Page 2



Defendant argues against Plaintiffs “Lay Expert” on two alternate grounds.

First, Defendant argues that Plaintiff's failure to timely disclose, and non-compliance

with the reporting requirements under Rule 26(a)(2)(C)(i) and Rule 37(c)(1) of the

Federal Rules of Civil Procedure regarding expert witnesses. This argument is

subject to the same analysis and conclusion that this Court offered in response to

Defendant's Motion and Brief in Limine to Exclude Plaintiff from Naming Expert

Witnesses.



Defendant's second argument is that Dr. Davis, as a lay witness, should not

be allowed to testify regarding matters of scientific, technical, or other specialized

knowledge. Defendant relies on a reading of V.I. Code Ann. Tit. 5, 911(1-2), which

makes an analogy to the corresponding Federal Rule of Evidence 701.



This Court, finds that consistent with Defendant’s second argument, Plaintiff's

witness could be admitted, but that any testimony offered must be limited in scope to

lay testimony. Specifically, this Court finds that Dr. Davis should not be able to

testify on the toxicity of Diffenbachia because this would involve expert testimony

from a lay witness.



Limitations on what may be offered as Lay Testimony



Defendant cites the relevant statute governing the admission of Lay Witness

testimony as V./. Code Ann. Tit. 5, 911(1). As Defendant's brief points out, the

language of V./. Code Ann. Tit. 5, 911(1) is almost identical to FRE 707 provisions

governing allowable testimony by Lay Witnesses. Thus 971(1) states:



(1) If the witness is not testifying as an expert his testimony in the form



of opinions or inferences is limited to such opinions or inferences as

the judge finds (a) may be rationally based on the perception of the

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MEMORANDUM OPINION - Page 3



witness and (b) are helpful to a clear understanding of his testimony or

to the determination of the fact in issue.



Significantly, 911(7) is not identical to FRE 707. The Federal Rule explicitly

precludes lay witnesses from offering testimony “based on scientific, technical, or

other specialized knowledge...” FRE 701(c). Said preclusion is not articulated in

911(1).



Likewise, the language of V./. Code Ann. Tit. 5, 911(2) is almost identical to

FRE 702 provisions defining allowable Testimony by Experts. Thus 9177(2) states:



(2) If the witness is testifying as an expert, testimony of the witness in

the form of opinions or inferences is limited to such opinions as the

judge finds are (a) based on facts or data perceived by or personally

known or made known to the witness at the hearing and (b) within the

scope of the special knowledge, skill, experience or training possessed

by the witness.

Whereas FRE 702, “permits expert opinion testimony from a ‘witness qualified as an

expert by knowledge, skill, experience, training, or education’ when such specialized

knowledge will assist the trier of fact to understand the evidence or to determine a

fact in issue.” (Defendant’s Reply Brief)



Defendant avers that the Court should find that Lay Witness testimony, as

governed by Rule 911(1), may not be based on scientific, technical, or other

specialized knowledge just as it may not under FRE 701(c). Although section 911(1)

does not explicitly include this restriction, Defendant points to the decision in Mulley

v. People of the Virgin Islands, 2009 V.1. Supreme Lexis 34, in which the Court



recognized that “section 911(2)...indirectly incorporates the same standard for



determining when testimony is expert.... Thus, consideration under either rule would

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MEMORANDUM OPINION - Page 4



reach the same result.” As a result, Mulley recognizes the same limitation under the

V.I rule as specifically included in FRE 701(c).



Defendant also cites the authority of the Utah Appeals court, which held that

when a witness’ testimony is based on “scientific, technical, or specialized

knowledge, that witness must be qualified as an expert under rule 702....” State v.

Rothlisberger, 95 P.3d 1193, 1198-99 (Utah 2004). The Utah Appeals court

decision is instructive because Utah has identical evidentiary provisions as the Virgin

Islands regarding lay and expert testimony.



This Court finds Defendants’ arguments persuasive. In the Plaintiffs Notice of

Lay Expert, Olasee Davis, Plaintiff states that she will call Dr. Davis as a Lay Expert

and notes that due to his type of work and education, he “understands and teaches

about the toxicity of Diffenbachia.” This Court finds that to be able to testify about

the toxicity of Diffenbachia would require the witness to have “scientific, technical

and specialized knowledge.” Furthermore, to testify about the Diffenbachia’s “grave

danger to children, and the need to warn of the plant’s toxic nature to customers who

can easily touch the plant as they waik by in the store” would also require

specialized knowledge. In the Rothlisberger decision, the Utah Court held that “it’s]

clear that when a witness seeks to testify regarding matters that are necessarily

based on that witness's "scientific, technical, or specialized knowledge," that witness

must be qualified as an expert under rule 702 of the Utah Rules of Evidence, and all

reliability, reporting, or otherwise applicable statutory commands must then be



followed with respect to that testimony.”

Hartzog v. United Corporation; SX-04-CV-095

MEMORANDUM OPINION - Page 5



This Court also finds support for the argument that the FRE 701(c) limitation

is indirectly incorporated into Rule 911(1) based on the fact that the Legislature of

the Virgin Islands has since repealed Title 5, Virgin Islands Code, Chapter 67,

Admissibility of Evidence, Uniform Rules of Evidence, and replaced it with the

Federal Rules of Evidence on March 23, 2010, which the Governor approved on

April 7, 2010. The Legislature took this action “to reflect...revisions or to address the

current trends in the law,” so by doing so, “the legal community and the Territory

would greatly benefit from adopting the Federal Rules of Evidence which will

alleviate the current ambiguity and discrepancies in the application of the law.”

Furthermore, given that Mulley had already recognized that the FRE 701(c) would

apply albeit “indirectly,” this Court finds that the Legislative repeal of URE and

replacement with the FRE strikes with a strong policy argument against the

argument that 701(c) should not apply.



Plaintiff cites many pre-2000 cases. In light of the 2000 amendment to Rule

701, Mulley, and that the Legislature of the Virgin Islands has since repealed the V.1.

evidence statutes and replaced them with the Federal Rules of Evidence, the Court

finds it is not necessary to delve into these prior cases.



“Lay Expert”: must not conflate expert and lay opinion testimony



The Defendant directs this Court to a citation from Donlin v. Philips Lighting

North America Corp., 581 F.3d 73 (3d. Cir. 2009), of the FED.R.EVID. 701 advisory

committee's notes for the 2000 amendments, which states: “[s]ubsection (c) was

added in 2000 to ‘eliminate the risk that the reliability requirements set forth in Rule



702 will be evaded through the simple expedient of proffering an expert in lay

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MEMORANDUM OPINION - Page 6



witness clothing...{and] to prevent a party from conflating expert and lay opinion

testimony thereby conferring an aura of expertise on a witness without satisfying the

reliability standard for expert testimony set forth in Rule 702.”



In the present case, the Plaintiff filed on December 21, 2009 a Notice of “Lay

Expert” shortly after the Defendant filed on December 7, 2009 a Motion and Brief in

Limine to Exclude Plaintiff from Naming Expert Witnesses. The close sequential

timing of these motions evidences that Plaintiff's filing came in response to the

Defendant's Motion, and that Ptaintiff's intent was to name an expert witness in the

event that this Court ruled against Defendant’s motion. Furthermore, as noted in the

Defendant's Reply Brief Re: Motion to Strike Plaintiff's “Lay Expert,” “If Plaintiff

intended only to call Dr. Davis to testify regarding his factual observations in this

case, there would have been no need to file any type of notice.” The Court agrees

that there would be no requirement to file such notice.



Certainly, the Court finds ambiguous the Plaintiff's term “Lay Expert’ as it

seems to conflate the very ideas the lay person and the expert. The Plaintiff's

combination of the adjective “lay,” which means non-expert, to the noun “expert” is

illuminating and troubling. It is difficult to conceive of another situation or set of

circumstances that on its face falls squarely into path of the advisory committee's

goai to prevent the admission of “an expert in lay witness clothing.”



Personal Knowledge Exception



Plaintiff relies on int’! Rental & Leasing Corp. v. McClean, 303 F.Supp.2d 573



(D.V.1. 2004) to support its contention that Dr. Davis should be allowed to testify on



the toxicity of the Diffenbachia plant. In the Plaintiffs Memorandum in Opposition to

Hartzog v. United Corporation; SX-04-CV-095

MEMORANDUM OPINION - Page 7



Defendant's Motion to Exclude Lay Expert, she states that Dr. Davis’ testimony

regarding his “lay opinion on the toxicity of the Diffenbachia plant, its dangerous

effect if the sap gets on humans, specifically on children, and the need for retailers

such as Plaza Extra to have warning signs on the piant identifying it as extremely

dangerous for small children” should be permitted based on her reading of Donlin,

which states:

“When a lay witness has particularized knowledge by virtue of his

experience, he may testify — even if the subject matter is specialized or

technical — because the testimony is based upon the layperson’s

personal knowledge rather than the specialized knowledge with the

scope of Rule 702.” Donilin at 81.

Plaintiff argues that Dr. Davis should be permitted to give his lay opinion because he

has particular knowledge of horticulture and the toxicity of the Diffenbachia plant.

However, the Plaintiff has misinterpreted “particularized knowledge” and “personal

knowledge.”



In Doniin, the Plaintiff was only a temporary employee and “did not develop

an in-depth knowledge of the company’s salary structure, advancement

opportunities, pay raises, or employment patterns.” /d at 82. The Plaintiff's

testimony consequently failed to meet the personalized knowledge exception. The

court held that the Plaintiff had “crossed the line into subject areas that demand

expert testimony.” /d at 83. See also Lightning Lube, Inc. Witco Corp., 4 F.3d 1153,

1175 (3d Cir. 1993) (company founder allowed to testify regarding future business

performance because of his in-depth experience with the business’ contracts,



operating costs and competition); /n re Merritt Logan, Inc., 901 F.2d 349, 360 (3d



Cir. 1980) (principal shareholder of business properly testified concerning business

Hartzog v. United Corporation; SX-04-CV-095

MEMORANDUM OPINION - Page 8



projections where he was intimately involved with the investments and management

of the business); Teen-Ed, Inc. v. Kimball Int'l, Inc., 620 F.2d 399, 403 (3d Cir. 1980)

(company’s licensed public accountant was allowed to testify regarding lost profits

based on his personal knowledge of company’s balance sheet).



Further, these cases address fact patterns in which the lay witnesses were

involved employees, managers or a principal shareholder of the businesses.

Personal knowledge was based on their knowledge of these businesses with which

they were involved. In the present case, Dr. Davis does possess specialized

knowledge about plants such as the Diffenbachia. However, nowhere does it say

that Dr. Davis was involved with the placement of warning signs of plants in Plaza

Extra stores, that he physically inspected the alleged Diffenbachia plant, or that he

examined the Plaintiff's son.



In Int'l Rental, “the general manager of a business that regularly makes



decisions on the costs of repairing vehicles, and personally viewed the damaged



vehicle,” was permitted to testify that “he has sufficient expertise and knowledge to

give estimates on the cost of repairing his company’s vehicle.” The key to personal

knowledge in /nt’! Rental is that the general manager had physically inspected the

damage vehicle. Although the Plaintiff cites this case to support her position, the

case cuts against her argument and supports the Defendant’s argument because, as

noted above, Dr. Davis did not personally view the plant or examine the Plaintiff's

son.



To conclude, in the present case, the Court finds that it shail limit testimony



to factual observations and descriptions of why Dr. Davis suggested the plant was

Hartzog v. United Corporation; SX-04-CV-095

MEMORANDUM OPINION - Page 9



the Diffenbachia. However, Dr. Davis should not be able to testify about toxicity of

plant, about the danger the plant poses to children, or whether retailers should have

signs in the window. To testify on these matters the Plaintiff should have had Dr.



Davis qualified as an expert witness. An appropriate Order of even date follows.



DATED this 3* day of July, 2010.



The Hon. Miguel A. Camacho, Magistrate

of the Superior Court of the Virgin Islands



VENE .NELAZQUEZ, ESQ.



Clerk lin LY

( Court “hb”



Da