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Date: 05-18-2023
Case Style:
Case Number: 22-cv-2047
Judge: Eric F. Melgren
Court: United States District Court for the District of Kansas ( County)
Plaintiff's Attorney:
Defendant's Attorney: Brian C. Fries, David R. Frye, Jackson Hobbs, Taryn A. Nash Sherman
Description: Kansas City, Kansas civil rights lawyers represented Plaintiffs who sued Defendants on an Americans with Disabilities Act violation theory.
Each of the named Plaintiffs, two septuagenarians and one octogenarian, rent residential apartments in apartment complexes owned by Cross-Lines and operated by Young, Cross-Lines' property manager. Cross-Lines is a nonprofit corporation, with its mission statement having as its goal the provision of rental housing to elderly families and individuals. Because of its nonprofit status, Cross-Lines receives federal subsidies to purportedly allow it to offer lower rent.
The facts underlying Plaintiffs' claims are fairly straightforward. As colorfully stated in Plaintiffs' Complaint, the apartments' neglected condition leaves “elderly and disabled tenants captive to bed-bug infestations, decaying rodent bodies, flooding, leaking, and mold.” Plaintiffs initially filed nine claims against Defendants, with seven remaining after a successful partial motion to dismiss.
At present, Plaintiffs seek class certification as to six issues relating to the bed bug infestations at Cross-Lines. In support of their motion for class certification, they rely on the testimony of Jeffrey White. White has what can only be described as an impressive resume, having a masters degree in entomology, 17 years' experience in pest control, and numerous peer-reviewed publications and public speaking engagements on the subject.[1] White's credentials and expertise is not at issue in Defendants' Motion.
In preparation for testifying in this case, White reviewed bed bug infestation maps at CrossLines, treatment records by Blue Beetle, Focused, and ProPest, random pest control records to corroborate the other datasets, and Cross-Lines floor plans and Standard Operating Procedures. This dataset amounted to over 1,400 pages. On November 15, 2022, White conducted an inspection of the Cross-Lines apartment complex. Instead of inspecting the entire building, White chose 46 units that were a mix of those showing a history of bed bug infestation and adjacent units that had not reported bed bugs in 2022. The stated purpose of this inspection was to determine whether bed bugs infestations were going unreported and whether bed bugs were migrating to adjacent units. Over half of the inspected apartments showed bed bug activity, with many of those infested apartments never having reported bed bugs in 2022. Relying on the records, White opined that Cross-Lines has experienced a severe bed bug infestation, with as much as 30% of the building affected at one time. He also opined that many tenants likely did not report bed bug activity, citing a study of low income apartment building in New Jewelry showing that up to 70% of bed bug infestations went unreported.
As to the appropriate standard of care for treating bed bugs infestations and preventing reinfestations, White states that “clover-leaf” inspections of adjacent apartments are necessary to determine whether bed bugs remain after treatment. Without such inspections, White states that reinfestation of units due to re-migrating bed bugs is highly likely. He also opines that proactive building-wide inspections are necessary, while tenant preparation prior to treatment is helpful but not vital to successful treatment.
White also offers the following opinion on the proper measures property management should take to deal with the problem:
After consecutive years of no improvement (or worsening conditions) of the bed bug issue, it would be reasonable for a property management company to develop a plan that aims to reduce the bed bug infestation rate. That said, as noted by the above table, the property management company (Defendant Young Management Company) that has handled day-to-day property management at Cross-Lines since approximately September 2016 has failed to develop a proactive plan to reduce the bed bug infestation rate and continues to expose many, if not most or even all, of their residents to bed bugs infestation-and bites. There are pest control records noted that the pest management professional mentions to the property management company that a building-wide inspection would be highly recommended as well as surrounding unit inspections yet the property management company never follows through with the pest management companies recommendations.[2]
Finally, White offered testimony regarding the typical medical effects of bed bug bites. Relying on several studies and a treatise in his field detailing the medical effects from bed bug bites, White opined that “it is highly likely that many of the residents within the Cross-Lines Retirement Center had an increase in mental health issues due to the exposure to bed bug infestations.”
Although he lacks the formal education, publications, and public spotlight that White has, Defendants' expert, Poplin, has over 30 years' experience in pest control and currently runs his own pest control company. In his deposition, Poplin testified that he also has served as a pest control advisor to the federal government. Poplin conducted a building-wide inspection of CrossLines on December 20, setting bed bug traps that were then retrieved on December 27. This was after Cross-Lines had hired an exterminator to deal with the bed bug infestations found by White's inspection. Bed bugs were found in 24% of the units, while over half had what Poplin considered “clutter” or poor sanitation conditions. Prior to offering his report, Poplin did not review any of the records in this case. Nevertheless, Poplin testified that the lack of tenant preparation has always been a contributing factor to bed bug infestations at Cross-Lines.
Defendants also seek to admit Poplin's testimony as to the effect of the COVID-19 pandemic on the pest control industry. Namely, Poplin states that during the pandemic, residents would often refuse to let in pest control agents for fear of contracting COVID.
Poplin also wishes to provide expert testimony as to the appropriate standard of care for treating and preventing bed bug infestations, arriving at an opposite conclusion to White in nearly every way. First, he opines that clover-leaf inspections are unnecessary, while tenant preparation is absolutely key to success-in effect, the opposite of White. In support of these statements, Poplin opines that bed bugs do not migrate, although he later retracted this absolute in his deposition. Poplin further citizens White's methodology and opinion for a number of reasons irrelevant to this Order.
On February 24, 2023, Plaintiffs filed their motion for class certification. That same day, the parties each filed their respective Motions to Exclude the others' expert.
Coe v. Cross-Lines Ret. Ctr. (D. Kan. 2023)
Outcome:
IT IS THEREFORE ORDERED that Defendants' Motion to Exclude the opinions and testimony of Jeffrey White (Doc. 141) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Plaintiffs' Motion to Exclude the opinions and testimony and David Poplin (Doc. 153) is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
Plaintiff's Experts:
Defendant's Experts:
Comments: