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Lilley v. CVS Health

United States District Court, D. New Mexico

March 22, 2019

WILLIAM LILLEY, Plaintiff,
v.
CVS HEALTH, CVS PHARMACY, CVS CAREMARK, and JOHN DOES 1-4, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon Defendant CVS Pharmacy, Inc.'s “Defendant's Motion to Strike Expert Witness” (Motion to Strike), filed July 26, 2018, in which Defendant CVS Pharmacy, Inc. (CVS) moves to strike Plaintiff's liability expert witness, Elizabeth Thomson. (Doc. 60). On August 9, 2018, CVS filed a “Notice of Errata Substituting Exhibit” (Notice of Errata). (Doc. 65). Plaintiff filed a response on August 24, 2018, and CVS filed a reply on September 7, 2018. (Docs. 67 and 72). Having considered the Motion to Strike, the Notice of Errata, and the briefing, the Court grants the Motion to Strike.

         A. Background

         On May 1, 2014, just prior to midnight, a carjacker shot Plaintiff in the parking lot of an Albuquerque CVS pharmacy store. Plaintiff alleges that the CVS exterior cameras did not detect the incident and that the parking lot was dangerous “well before the incident date.” (Doc. 1-1) at ¶¶ 17 and 19. Plaintiff asserts that Defendants acted in a negligent manner by breaching “a duty to use reasonable efforts to make the Location, which includes the parking lot, safe for business patrons by providing enough security to protect Plaintiff against the foreseeable acts of third persons.” Id. at ¶ 24.

         1. Thomson's Expert Report

         The Court set a December 7, 2017, deadline for Plaintiff to disclose his experts. (Doc. 18). On December 8, 2017, Plaintiff filed a notice disclosing his liability expert witness, Elizabeth Thomson. Thomson is a crime prevention consultant, former Albuquerque Police Department (APD) sergeant, Crime Free Multi-Housing instructor, and a former residential property manager and owner. (Doc. 31); (Doc. 60-2) at 7; (Doc. 60-3) at 1-4.

         Thomson opined in her December 7, 2017, expert report that (1) the criminal history at the CVS store produced a “dangerous condition” which created “a foreseeable risk of injury” to Plaintiff; (2) Plaintiff could not have determined that the parking lot was in a dangerous condition when he arrived at the store on the night of the incident; (3) CVS acted unreasonably by not requiring employees “to report dangerous crimes in the parking lot to management;” and (4) CVS could have taken eleven “reasonable” measures which would have protected Plaintiff from harm. (Doc. 60-1) at 1-3.

         One such measure, for example, required that CVS create a formal line of communication between store employees and management to keep management apprised of “all crimes committed inside and outside the store (parking lot) in order to detect any patterns of criminal activity.” Id. at 2. Another measure required that CVS install “legible, easily visible, well-lit exterior signs indicating that the store is under 24 hour surveillance and subject to routine police patrols and/or bait vehicles.” Id. at 2. A third measure required CVS to install

[l]egible, easily visible, well-lit exterior signs warning customers that the location and its parking lot have been subject to criminal activity and customers should remove valuables, lock their vehicles, and proceed at their own risk.

Id. A fourth measure required that CVS install exterior “No Trespassing” signs citing the applicable city ordinance. Id. at 3. Yet another measure required that CVS hire a security guard “for dangerous periods, including dusk till dawn.” Id. An additional measure required that CVS “add and/or position exterior surveillance cameras in such a way that the parking lot and entire perimeter can be observed by staff or off-site surveillance team….” Id.

To formulate her opinions, Thomson relied on
a summary of coded calls for police service to the CVS location and police reports derived from three years of CAD [computer aided dispatch] data commencing three years prior to the incident date of May 1, 2014.

Id. at 1. Thomson attached to her report a list of 28 APD case numbers with corresponding incident numbers. (Doc. 72-1) at 1. She “also reviewed CVS's responses to Discovery in this case.” (Doc. 60-1) at 3.

         2. Thomson's Deposition Testimony

         Thomson acknowledged in her deposition that she did not base her report on any industry standards because she understood none existed. (Doc. 60-2) at 19. Also, Thomson did not choose to examine APD CAD data for a three-year period. Id. Rather, Thomson was simply provided with CAD data for a three-year period. Id. Additionally, Thomson did not distinguish between crimes which occurred in the parking lot and those which occurred in the store. Id. at 23. In fact, Thomson noted that “violent crimes” are related to organized retail crime like shoplifting. Id. at 12.

         Thomson testified that she does not use a personal or professional standard for determining if an area is a high crime or low crime area. Id. at 8-9. Instead, Thomson focuses on whether crime is a problem in an area.[1] Id. at 9. Although Thomson was aware of a standard methodology for determining what constitutes a high crime area and that the APD crime analysis unit adheres to standards, Thomson did not know what those APD standards are. Id. at 11.

         Thomson recommended at her deposition that employees not only report crime to corporate managers but that employees also report the lack of crime. Id. at 16. Thomson did not base this recommendation on an industry standard. Id. Rather, she based the recommendation on “reasonable care” and her experience. Id.

         Thomson testified that she was not aware of any data showing the efficacy of exterior signs indicating a store was under surveillance and subject to police patrols and bate vehicles. Id. at 24. Thomson also testified that no industry standard exists which describes a reasonable sign to warn patrons of the risk of harm. Id. at 26. Moreover, Thomson testified that she did not have any data or study to support the efficacy of either posting “No Trespassing” signs” citing the applicable city ordinance or installing exterior surveillance cameras. Id. at 27 and 28. Thomson further acknowledged that no standard exists with respect to the presence of a security guard. Id. at 5.

         As a police sergeant, Thomson participated in the Albuquerque Retail Asset Protection Association (ARAPA). ARAPA assisted businesses, including large pharmacies like CVS, by providing crime prevention strategies based on property assessments and crime statistics. Id. at 3-4. Every month, Thomson and ARAPA conducted a problem-oriented policing (POP) project at a business or area with a high incidence of crime. Id. at 4.

         A POP project required Thomson to examine data from the APD crime analysis unit. Id. The APD crime analysis unit engaged in predictive crime analysis and produced crime analysis maps, i.e., heat maps. Id. Thomson also examined the environmental design of the targeted property to evaluate crime prevention strategies.[2] (Doc. 67) at 36. The POP program required measuring the effects of the POP projects. Id.

         Finally, having analyzed an even “bigger data set” than she had at the time she wrote her expert report, Thomson testified that she continued to find a pattern of criminal activity at the CVS from 2009 to 2014. Id. at 17 and 29.

         3. Thomson's August 24, 2018, Affidavit

         In her August 24, 2018, affidavit, Thomson opined that it was ‘“Moderately' to ‘Highly' foreseeable” that the May 1, 2014, shooting and carjacking would occur in the CVS parking lot. (Doc. 67) at 28. Thomson used the terms “moderately” to “highly” foreseeable as “defined by noted security/loss prevention/crime prevention expert Chris McGoey….” Id. Thomson trained under McGoey “in an educational seminar setting.” Id.

         Thomson explained that her methodology “is accepted in the fields of Loss and Crime prevention, as well as [her] training and experience in both property management and law enforcement.” Id. Thomson's methodology consisted of first analyzing “factors known to affect foreseeability of criminal activity” such as “hours of operation, ...


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