United States District Court, N.D. New York
July 15, 2004.
SUSAN MEINEKER and SYBIL McPHERSON, individually and on behalf of all others similarly situated, Plaintiffs,
HOYTS CINEMAS CORPORATION, Defendant. UNITED STATES DEPARTMENT OF JUSTICE, Intervening Plaintiff, v. REGAL CINEMAS, INC.; REGAL ENTERTAINMENT GROUP; and HOYT CINEMAS CORPORATION, Intervening Defendants.
The opinion of the court was delivered by: DAVID HURD, District Judge
In 1998, plaintiffs Susan Meineker and Sybil McPherson
("plaintiff")*fn1 brought suit against defendant Hoyts
Cinemas Corporation ("defendant"), alleging that the wheelchair
seating at certain movie theaters violated Title III of the
Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.
This case has been the subject of nearly six years of litigation.
Familiarity with both the facts and procedural history are,
Following reversal of summary judgment in favor of defendant by
the Second Circuit Court of Appeals, Meineker v. Hoyts Cinema
Corp., 69 Fed. Appx. 19 (2d Cir. 2003), rev'g, 216 F. Supp.2d 14
(N.D.N.Y. 2002), plaintiff moved for relief under Fed.R. Civ.
P. 60(b)(2) of an earlier decision excluding the testimony and
report of their expert, Meineker v. Hoyts Cinema Corp.,
154 F. Supp.2d 376 (N.D.N.Y. 2001). Oral argument was heard on April
29, 2004, in Albany, New York. Decision was reserved.
The basis upon which plaintiff moves for relief is the
discovery of new evidence, in the form of a 1991 letter from
defendant or persons acting under their control to the Maine
Human Rights Commission in which the 1989 Society of Motion
Picture and Television Engineers engineering guidelines were
adopted as the industry standard regarding sightlines in movie
theaters. See Fed.R.Civ.P. 60(b)(2) (permitting relief from
a prior order on the basis of "newly discovered evidence which by
due diligence could not have been discovered. . . ."). Plaintiff
claims that the existence of this letter undercuts the main
rationale used to exclude her expert that the expert's use of the SMPTE
guidelines was precluded because they were not the industry
standard regarding theater design.
Plaintiff misreads the decision excluding her expert. The
primary basis of the decision which, incidentally, excluded
both sides' experts was that expert testimony is not needed in
this case. "Alternatively," the opinions of the experts were
excluded on reliability grounds, specifically, because it was
found that there was no industry standard on which he could base
an opinion, and because his opinion was developed "for this
case," and was not "based directly on preexisting research
conducted independently of the litigation." Meineker,
154 F. Supp.2d at 379-80 (emphasis added). Thus, regardless of whether
the alternative basis for excluding plaintiff's expert remains
valid after the Second Circuit's decision and no opinion is
expressed on the same the primary basis does remain valid.
There is no dispute that this lawsuit is governed by Section
4.33.3 of the Accessibility Guidelines for Buildings and
Facilities ("Section 4.33.3"). At issue are two requirements in
Section 4.33.3: (1) that wheelchair-bound persons be provided
with "lines of sight comparable to those for members of the
general public," and (2) that seating for wheelchair-bound
persons "be an integral part of any fixed seating plan." To
resolve this case, two tasks need accomplished. First, both parts
of Section 4.33.3 need to be interpreted to develop the standard
applied to Hoyts's theaters. Second, that interpretation needs to
be applied to Hoyts's theaters.
It is beyond dispute that the first task interpreting Section
4.33.3 needs no expert testimony to be accomplished. In this
regard, the Second Circuit's remand is instructive. The panel
vacated summary judgment in defendant's favor and remanded the
case for resolution of two issues, the first of which is whether
the interpretation of Section 4.33.3 by the Department of Justice, which appeared for the first time on
appeal as amicus curiae and has now intervened, should be
afforded deference. Regardless of whether the question is
determining if deference is appropriate, or, if not,
independently interpreting Section 4.33.3, the decisions to be
made are uniquely judicial. In other words, the existence of the
1991 letter even if it contradicts earlier submissions filed by
defendant does nothing to change the bedrock principle,
undisturbed by the Second Circuit, that interpreting Section
4.33.3 is a uniquely judicial function to be undertaken as a
matter of law.*fn2
Applying the interpreted Section 4.33.3 to defendant's theaters
likewise requires no assistance from expert witnesses. Initially,
it is noted that plaintiff apparently seeks to offer the expert
testimony on an ultimate issue to be decided in this case
whether the theaters violate Section 4.33.3 and, therefore, the
ADA. See Docket No. 119, Attach. 2, p. 6 ("As directed by the
Second Circuit, this Court must ultimately determine whether
[defendant] provided comparable lines of sight from the
wheelchair spaces at Crossgates Theaters. Plaintiffs' expert
relied solely on the SMPTE guidelines to demonstrate that the
lines of sight from the wheelchair spaces were not comparable to
those of the general public" (emphasis added). Resolving ultimate
issues is within the sole province of the finder of fact, either
by motion or a bench trial.
Perhaps more importantly, expert testimony is simply not
needed. If the DOJ's interpretation of Section 4.33.3 is given
deference, no specialized knowledge is needed to apply that
interpretation. If the DOJ's interpretation of Section 4.33.3 is
not given deference, no specialized knowledge is needed in order
to apply the section. The latter conclusion, used as the primary basis for excluding plaintiff's expert, was
not disturbed by the Second Circuit. That the SMPTE guidelines
may be relevant to the issues identified by the Second Circuit
for resolution does nothing to change this fact. No help is
needed in applying Section 4.33.3 to the facts of this case.
Therefore, because knowledge of the 1991 letter to the Maine
Human Rights Commission would not have changed the decision to
exclude plaintiff's expert, the motion under Rule 60(b)(2) must
be denied. See United States v. Int'l Bhd. of Teamsters,
247 F.3d 370, 392 (2d Cir. 2001) (stating that, in order to
successfully move for relief under Rule 60(b)(2), a plaintiff
must demonstrate, inter alia, that the new evidence is "`of
such importance that it probably would have changed the outcome'"
of the decision from which the party seeks relief) (quoting
United States v. IBT, 179 F.R.D. 444, 447 (S.D.N.Y. 1998)
(internal citation omitted)).*fn3 For the same reason,
exercise of any equitable power to revisit the decision excluding
plaintiff's expert is unnecessary and inappropriate.
However, strong displeasure at what is viewed as a
misrepresentation made by defendant must be highlighted. In the
1991 letter, which was signed by Harold Blank and Raymond J.
Gaudet, Hoyts's Assistant Vice President and Director of
Construction, respectively, for defendant, it was acknowledged
[i]ndustry standards regarding sightlines are best
described in the attached article which appeared in
the SMPTE JOURNAL (SOCIETY OF MOTION PICTURE AND
TELEVISION ENGINEERS) during the month of June, 1990.
This article details the SMPTE Engineering Guideline for Design of Effective Cine Theatres. It
will be referenced throughout this letter as EG
18-1989. This article fully establishes an industry
(Docket No. 119, Attach. 9, p. 2) (emphasis added); see also
id. ("`Visibility' as described in the SMPTE Engineering
Guideline EG-18-1989 is as follows . . .); id. ("SMPTE defines
the vertical sightline `C' as . . .); id. at 3 ("`Viewing
angle', according to the SMPTE EG-18-1989 guideline . . .); id.
at 4 ("`Image Size' according to the SMPTE EG-18-1989 Guideline
. . .).
Ten years later, in an affidavit dated February 20, 2001,
submitted by defendant in opposition to plaintiff's motion to
exclude its expert, Harold Cleveland, Hoyts's Senior Vice
President of Development, stated the following:
I am advised that plaintiffs have argued that the
SMPTE guidelines provide long-standing industry
standards for the design of movie theaters. That is
not the case. The consensus in the theater industry
has always been that the SMPTE guidelines do not
provide standards for the design and construction of
movie theaters. In fact, professionals in the theater
industry were quite surprised when plaintiffs began
raising SMPTE guidelines in legal actions brought
under the [ADA], because these guidelines have
never been considered to be standards for theater
design, either voluntary or mandatory. In my work on
the [National Association of Theater Owners]
Standards Committee, I have not become aware of any
architect or theater owner that follows or relies on
the guidelines in designing and constructing movie
(Docket No. 119, Attach. 8, ¶ 5.) (emphasis added).
Defendant argues that no intentional misrepresentation occurred
because, essentially, Cleveland began working for defendant in
1997 and the company is so large that the 1991 letter got lost in
the shuffle. (Docket No. 146, Transcript of Oral Argument, Apr.
29, 2004, pp. 13, 17). The defendant (as with any litigant) has
an unwavering duty to refrain from submitting documents that are
false, misleading, or purposively incomplete, no matter the
company's size or length of history. Whether the SMPTE guidelines
provided an industry standard was an issue on which both parties focused, so it was
incumbent on defendant not only take a side, but to make sure
that the side it took comported with its own history. Defendant
had a duty to seek out those individuals employed by it that had
the relevant knowledge on the issue, including Gaudet, who was a
signatory to the 1991 letter and who has filed submissions in
this very case. As a person intimately, if not centrally,
involved with the construction and/or renovation of defendant's
theaters, it would be preposterous not to ask his opinion on the
issue. If defendant did not so question Gaudet, or other relevant
persons with knowledge, then it has at least committed a
misrepresentation by omission, or concealed a fact, however
relevant. Thus, defendant's argument against an intentional
misrepresentation occurring, even if technically true, is a
distinction without a difference.
Nevertheless, because interpreting and applying Section 4.33.3
needs no expert assistance, plaintiff's motion for relief from
the decision excluding her expert will be denied.
Accordingly, it is
ORDERED that plaintiff's motion for relief from the decision
excluding her expert from testifying and rendering a report is
IT IS SO ORDERED.