United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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.
Thomson's Expert Report
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.
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.
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
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
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.
Thomson's Deposition Testimony
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.
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. 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.
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.
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.
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.
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. (Doc. 67) at 36. The POP
program required measuring the effects of the POP projects.
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
Thomson's August 24, 2018, Affidavit
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.”
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, ...