PHILADELPHIA – SeaWorld’s Sesame Place Philadelphia have received partial dismissal of opposing counsel’s expert witness, in litigation which charged that employees of the park discriminated against the plaintiff’s daughter, a Black child, during a meet-and-greet session with some costumed characters.
Quinton Burns (individually and as next friend of K.B., a minor, and on behalf of a class of similarly situated individuals) of Baltimore, Md. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on July 27, 2022 versus SeaWorld Parks & Entertainment, Inc. and SeaWorld Parks & Entertainment, LLC (doing business as “Sesame Place Philadelphia”) of Orlando, Fla., plus John Does 1-4.
“On June 18, 2022, Father’s Day, the Burns accepted SeaWorld’s offer to purchase two weekend admission tickets to SeaWorld’s amusement park, Sesame Place Philadelphia. The Burns performed their contractual duties by tendering remuneration in a bargained for exchange to experience SeaWorld’s Sesame Place Philadelphia attraction. SeaWorld’s offer which the Burns accepted included, the benefit and privilege of enjoyment of the amusement rides and ‘exclusive Sesame Street themed entertainment’ offered at Sesame Place, including but not limited to amusement park shows featuring ‘Meet and Greets’ with Sesame Street-themed costume character performers,” the suit said.
“By the terms of the contract between the Burns and SeaWorld, SeaWorld’s costume character performers were obligated to ‘Meet and Greet’ with SeaWorld’s customers to include Burns. Similarly, the Burns was entitled to SeaWorld’s performance of the contract by way of its costume character performers to ‘Meet and Greet’ with the Burns. During the Burns’ visit to Sesame Place, they attempted to participate in a ‘Meet and Greet’ with SeaWorld’s costume character performers dressed as Sesame Street characters ‘Elmo’, ‘Ernie’, ‘Telly Monster’ & ‘Abby Cadabby.’ SeaWorld’s costume character performers dressed as Sesame Street characters ‘Elmo’, ‘Ernie’, ‘Telly Monster’ & ‘Abby Cadabby’ intentionally refused to perform SeaWorld’s contract with the Burns and the Class by refusing to engage with them and ignoring them and all other Black guests in attendance.”
The suit maintained that the class of the lawsuit would include any Black guest of Sesame Place Philadelphia over the past four years who suffered disparate or discriminatory treatment by employees of the park.
A spokesperson for Sesame Place issued a statement in response to the lawsuit.
“We will review the lawsuit filed on behalf of Mr. Burns. We look forward to addressing that claim through the established legal process. We are committed to deliver an inclusive, equitable and entertaining experience for all our guests,” the statement said.
In a Nov. 2, 2022 answer to the complaint, the defendants doing business as Sesame Place Philadelphia denied that it or its performers discriminated against the plaintiffs in any fashion, and countered that not only had the plaintiffs failed to state claims upon which relief could be granted, but also that their request for injunctive relief was invalid.
“Plaintiffs allege that defendants violated their civil rights and are liable for negligence because certain costumed Sesame Street characters allegedly did not personally interact with them during ‘Meet and Greets’ or Parades at Sesame Place Philadelphia. Plaintiffs’ claims fail because an admission ticket to Sesame Place provides no contractual right to personal interactions with costumed characters on demand, and because plaintiffs have not alleged that the costumed characters treated them differently than other park guests. And plaintiffs’ negligence claim fails because plaintiffs fail to identify any applicable legal duty and make only conclusory allegations about breach without providing any factual support,” the answer stated, in part.
According to the defense, the plaintiffs have “not alleged facts to demonstrate that they experienced disparate treatment by the at-issue costumed characters, let alone that the characters acted with the required intentional racial animus at the time of the interactions” – and because “there is not a sufficient likelihood that named plaintiffs will again be wronged in a similar way (by visiting the park again), they are not entitled to seek injunctive relief, on behalf of themselves or the class.”
On June 5, 2023, U.S. District Court for the Eastern District of Pennsylvania Judge Wendy Beetlestone ordered the defendants’ dismissal motion be granted in part, with respect to most of the plaintiffs’ negligence claims and denied otherwise.
In response to an amended version of the complaint filed on Sept. 28, 2022, the defendants provided an answer on June 19, 2023, which denied the plaintiffs’ allegations in their entirety, and additionally proffered seven affirmative defenses.
“Plaintiffs and the putative class members fail to state a claim upon which relief can be granted. Plaintiffs’ and the putative class members’ claims alleged in the amended complaint may not properly be certified or maintained as a class action. Plaintiffs and the putative class members lack standing to assert some or all of the claims raised in the amended complaint. Plaintiffs’ negligence claim alleged in the amended complaint is barred by the Pennsylvania Human Relations Act, which excludes state law claims that arise solely from alleged discriminatory conduct that could have been brought pursuant to the PHRA,” the defenses stated.
“Some causes of action and relief asserted in the amended complaint by some plaintiffs and putative class members are barred by the doctrine of laches. As a result of some of the plaintiffs’ and some of the putative class members’ conduct, words, and/or actions, some plaintiffs and some putative class members have waived their right to participate in a class action. Plaintiffs’ and the putative class members’ claims are barred, in whole or in part, because they did not suffer any actionable injury or because such injury was not caused by defendants.”
Furthermore, the defendants “accordingly reserve the right to amend this answer to add, withdraw or modify defenses based upon legal theories that may be divulged through clarification of the claims at issue, through discovery or through further legal analysis in this litigation.”
On Dec. 18, the defendants filed a motion for summary judgment, arguing that “after more than a year of discovery, including the production of thousands of pages of documents and fifty depositions, plaintiffs do not have evidence establishing the essential elements of their claims.”
“As to their Section 1981 claim, after the Court’s motion to dismiss ruling, plaintiffs must show that a costumed character refused to interact with them. Many of the named plaintiffs cannot do so. Their own videos show, and they admitted in their depositions, that the costumed characters at issue did interact with their children, just not in the way they thought their children wanted to be interacted with. That theory did not survive the motion to dismiss hearing when plaintiffs’ counsel admitted that plaintiffs are not arguing that guests are entitled to the personalized interactions they desire,” the summary judgment motion stated, in part.
“As to the other named plaintiffs whose scenarios include a costumed character’s alleged refusal to interact, the factual evidence shows that there were legitimate non-discriminatory reasons why. It was not because of the race of the child, but because the costumed character performer could not see the child due to the positioning of the costume’s field of vision, because they did not have time to provide an individual interaction because they had to move to their next mark along the parade route, or because of the positioning of the children along the parade route. Plaintiffs therefore cannot show the necessary discriminatory intent. They also cannot show the violation of any contractual right. While it is certainly the case that there is a right not to be discriminated against at a theme park like Sesame Place, that right is provided by federal and state law, not by the only alleged contracts at issue here – plaintiffs’ tickets/season passes. Here, plaintiffs may have had what they consider to be negative interactions, but they cannot show that those interactions were the product of intentional race discrimination or that they resulted in the impairment of a contractual right, and thus have failed to establish the essential elements of their Section 1981 claim.”
The defendants added that, in their view, because plaintiffs cannot establish their Section 1981 claim, their negligence per se claim based on it fails both for that reason, and for being pre-empted by the Pennsylvania Human Relations Act.
UPDATE
On Feb. 21, Beetlestone issued a partial granting and partial dismissal to a defense motion seeking to strike the reports and testimony of the plaintiffs’ expert, Dr. Michael L. Lindsey, who interviewed the named plaintiffs in this case, many of their children and other family members, to assess the extent to which they suffered trauma from the alleged racial discrimination that they suffered at defendants’ property.
Lindsey is a lecturer in the Psychology Department at Southern Methodist University in Dallas, Texas and the President of Nestor Consultants, Inc., which offers multiple services, including psychological evaluations and diversity trainings.
Lindsey also received a law degree from Villanova Law School and a Ph.D in Clinical Psychology from Hahnemann University. He has taught classes on, among other topics, developmental psychology, child psychology, research methods and the role of ethics and diversity in psychology.
Lindsey is also a member of the American Psychological Association’s Law and Society Division and a member of the planning committee for the International Academy of Law and Mental Health, according to Beetlestone.
The defendants challenged Dr. Lindsey’s reports’ compliance with Daubert requirements and those of Federal Rule of Evidence 702, these being: “1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2) The testimony is based on sufficient facts or data; 3) The testimony is the product of reliable principles and methods; and 4) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”
The judge then turned her attention to the defense’s motion.
“SeaWorld first argues that, because he is not a licensed psychologist and does not maintain a clinical practice, Dr. Lindsey is not qualified to deliver his opinions as a matter of law. That is not the case because Rule 702’s plain text does not tie the qualification requirement to licensing. It merely requires that the expert have ‘scientific, technical, or other specialized knowledge…’ These are ‘disjunctive’ pathways to satisfying the qualification requirement. Consistent with Rule 702’s text, courts repeatedly have advised that lack of a degree or license affects the weight of an expert’s testimony as determined by the jury, not his or her qualification,” Beetlestone said.
“Dr. Lindsey’s lack of a professional license is not dispositive. And while Dr. Lindsey does not have a clinical practice, he has extensive experience both lecturing on and researching issues related to developmental psychology and consulting on the precise type of psychological issues relevant to his reports. That is sufficient to give him ‘skill or knowledge greater than the average layman’ as necessary to qualify him as an expert per Rule 702.”
Beetlestone added that “reliability, on the other hand, poses greater challenges to Dr. Lindsey’s reports.”
SeaWorld maintained that they are not based on ‘any methodology…let alone a methodology’ that satisfies Daubert and its progeny. And, further that they do not reliably show – indeed, they do not show at all – a causal relationship between the alleged racial discrimination plaintiffs suffered at Sesame Place and the trauma he said they have suffered.
Next, SeaWorld argued that Dr. Lindsey’s decision to interview the plaintiff families in a group, without ever speaking with the children alone, renders his reports inadmissible. Finally, SeaWorld took issue with Dr. Lindsey’s nearly identical recommendations that the plaintiff parents receive therapy.
“Dr. Lindsey’s reports contain three separate findings, the last of which drives his recommendations that the plaintiffs receive therapy and, especially, punitive damages: 1) His professional experience and the scientific literature show that, in general, adverse childhood experiences (ACEs) ‘may cause trauma’; 2) According to that literature, when ACEs in general ‘do result in trauma,’ they should be treated with trauma-informed care; 3) Based on Dr. Lindsey’s ‘professional opinion…SeaWorld has created traumatic experiences for these identified family members.’ Implicit in his final finding is: (1) That what allegedly happened to the plaintiff children at Sesame Place constituted ACEs; (2) That those ACEs are the sort, in general, that cause trauma; and, (3) That those individual ACEs in fact caused trauma for the plaintiff children. The question is whether these conclusions are ‘based on the ‘methods and procedures of science’ rather than on ‘subjective belief or unsupported speculation,” Beetlestone said.
“Not every step in Dr. Lindsey’s analysis passes muster. His conclusions at the first step in this chain are plainly based on a reliable methodology. As plaintiffs point out, the APA has made clear that Dr. Lindsey’s chosen method of assessment, a clinical interview, is a widely-accepted tool for that purpose. Even if, as SeaWorld argues, his script might not have constituted a ‘structured diagnostic interview’ per the APA’s handbook, this technique, although subjective, can still be sufficiently scientifically grounded to be reliable. Here, the interview protocol included several questions to both sets of interviewees aimed at understanding what happened to the plaintiff children at Sesame Place, how it made them feel at the time, and how they have processed the events since, all of which would help him, based on his decades of professional experience and interaction with the relevant scientific literature, evaluate whether they constituted ACEs. Dr. Lindsey’s conclusion that the events at Sesame Place constituted ACEs thus is ‘based on the methods and procedures of science,’ not just ‘subjective belief.”
Beetlestone opined that by “Dr. Lindsey’s own estimation, not all ACEs cause trauma, and the ACEs that do not cause trauma do not necessarily require trauma-informed care” and that “without a reliable method for determining whether the ACEs that Dr. Lindsey identified caused trauma in the specific instances he was tasked with examining, then, his conclusion that ‘SeaWorld created traumatic experiences for’ plaintiffs would not rest on a reliable basis.”
“Dr. Lindsey’s methodology falters, however, at the final step in this logical chain. Here, his reports’ findings shift in scope from the general to the individual, concluding that ‘SeaWorld has created traumatic experiences for these identified family members.’ Because his interview protocol contains no mechanism for assessing the causal link underlying this conclusion, Dr. Lindsey’s reports were not based in the scientific method in this respect. Although Dr. Lindsey’s interview protocol does contain plenty of questions that would allow him to elicit the plaintiff children’s emotions and how they now relate to amusement parks, it does not contain any mechanism for isolating the causes of those sentiments. Dr. Lindsey’s failure to ask the plaintiff parents about their children’s psychosocial history is especially telling in this respect, given that he admitted in his deposition that ‘a clinician’ would ‘want to get some sense of history and what [symptoms] may be pre-dispositional.’ Here, he conceded, ‘those didn’t exist,” Beetlestone stated.
“On top of that, he admitted in his deposition that he did not review plaintiffs’ videos of some of the interactions between the children and the costumed characters, which could have helped him better understand the severity of the ACEs being described. Nor can the scientific literature he cited bridge the gap at this step because these studies discuss the potentially traumatic impact of ACEs that involve racism, not the actual traumatic nature of the ACEs that Dr. Lindsey identified. Accordingly, Dr. Lindsey will not be permitted to testify on whether the ACEs he identified caused the symptoms of trauma that he observed. He may, however, testify that, based on his scientifically-based interview protocol, his review of relevant scientific literature, and his years of professional experience, the alleged discriminatory events at Sesame Place were ACEs of the sort that tend to cause trauma. He also is free to testify that, based on this information, the plaintiff children’s symptoms are consistent with trauma. Finally, he can be questioned about his opinion that many of the interviewees and their family members would benefit from therapy. He cannot, however, attribute the symptoms he observed to the alleged discrimination that took place at Sesame Place alone.”
Beetlestone ordered that the defendants’ motion be granted, in that Dr. Lindsey is precluded from testifying on: (1) Whether defendants, its employees, or its agents were the cause of the trauma symptoms that he observed during his clinical interviews of plaintiffs; (2) Whether the alleged incidents of racial discrimination at Sesame Place Philadelphia constitute intentional discrimination; or, (3) Whether plaintiffs are entitled to punitive damages, as his opinions on these issues are hereby stricken, and that the motion be denied in all other respects.
For counts of discrimination in violation of 42 U.S.C. Section 1981 plus a state law claim of negligence per se and breach of contract, the plaintiffs are seeking a long list of various reliefs, including $25 million in damages, an unconditional apology for the conduct complained of, an injunction preventing the continuation of such conduct, discrimination education and sensitivity training for Sesame Place employees, attorney’s fees, costs, pre- and post-judgment interest and other relief as may be appropriate under the circumstances.
The plaintiffs are represented by Martell Harris and Phylecia R. Faublas of The Trial Law Firm in Pittsburgh, Jason B. Duncan of Duncan Legal Group in Harrisburg, plus William H. Murphy Jr., Andrew K. O’Connell, Malcolm P. Ruff and Ronald E. Richardson of Murphy Falcon & Murphy, in Baltimore, Md.
The defendants are represented by Leigh Michael Skipper, Aleksander W. Smolij, John M. Simpson, Michelle Pardo, Rebecca Bazan and Joseph K. West of Duane Morris, in Philadelphia and Washington, D.C.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-02941
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com