Plaintiff Wilfredo Maribona filed a negligence suit against Defendant Wal-Mart Stores East, LP. Maribona summarized his claim, asserting that he slipped due to the painted stop bar in the parking lot being slippery when wet from rain. Despite no accident report being filled out, the incident was recorded by store surveillance.
The Plaintiff enlisted Christopher Zimmerman (“Zimmerman”) as an expert witness, who asserted that the paint on the stop bar lacked sufficient slip resistance, and Wal-Mart had violated multiple building and other codes. In response, the Defendant hired Derrek-Ian Verlaan (“Verlaan”) as its rebuttal expert, contending that the stop bar was not slippery. Both parties sought to prevent the other’s expert from testifying.
The Court addressed three motions: (1) Plaintiff’s Daubert Motion to Preclude Expert Testimony of Derrek-Ian Verlaan; (2) Defendant’s Daubert Motion and Supporting Memorandum of Law to Strike the Opinion and Testimony of Plaintiff’s Expert Christopher Zimmerman; and (3) Defendant’s Motion for Final Summary Judgment.
Building Inspection Expert Witness
Christopher M. Zimmerman is a Florida State Licensed Building Inspector and a Florida State Licensed Plans Examiner with over 16 years of experience examining the permitting and construction process, including construction safety practices. He has obtained his Bachelor of Science degree in Criminology from Florida State University and has further enhanced his investigation skills during an internship with Florida Department of Insurance, Fraud Division. Zimmerman is currently a partner of Zimmerman Associates of Florida, where he provides research, inspection and expert witness services to owners, the legal profession and their clients, on matters concerning construction activity, property damage and personal injury.
Construction Expert Witness
Derrek-Ian G. Verlaan is a Certified Safety Professional and a Senior Staff Consultant with Engineering Systems Inc. in Fort Myers, Florida, where he has been performing scientific investigation, research, and consulting for over 20 years. His consulting practice areas include construction, safety, environmental, and fire. He investigates residential and commercial property losses related to structural, fire, water damage, mold, and corrosive drywall. He has obtained his Bachelor of Science from the University of West Florida.
Discussions by the Court
The Plaintiff asserted that Christopher Zimmerman possessed over 16 years of experience as a Florida State Licensed Building Inspector and Plans Examiner, specializing in permitting and construction processes, including construction safety and is qualified by the Court to provide testimony in these areas.
In an on-site inspection performed on July 7, 2021, approximately six months after the event, Zimmerman assessed the site under overcast weather conditions following rain. Without conducting destructive testing, he employed the methods typical of a building inspector, including visual inspection, tactile examination, and surface scratching. Zimmerman explained his methodology by visually examining and feeling the conditions on-site, touching the surface with his hands, and scratching it to identify any abrasive additive. He observed variations in the surface along the painted line, noting smooth areas and pitting likely caused during the spray application, as seen in photographs. Multiple pictures were taken to document various conditions in the area, including instances of cracking.
Zimmerman expressed the opinion that the pertinent paint striping lacked an abrasive additive, failing to provide slip-resistant construction. His first opinion identified the route as a primary access and egress route, marked for pedestrians, citing relevant codes and criteria. His second opinion asserted that Wal-Mart failed to furnish a consistently slip-resistant walking surface for the Plaintiff’s use under expected conditions and use. In a written opinion dated April 27, 2023, Zimmerman stated that a natural asphalt surface usually offers good slip resistance. However, when coated with paint without proper texturing or an abrasive additive, the slip-resistant characteristics diminish. The stop bar marking, having multiple layers of paint, concealed the natural abrasive features of the asphalt. Zimmerman found no evidence of an abrasive additive during his examination, describing the surface as smooth and nonporous. Such hard, smooth surfaces without sufficient abrasive additives are recognized as posing a slip hazard, especially when wet or contaminated.
The Defendant asserted that Derrek-Ian Verlaan, held certifications as a Certified Safety Professional and served as a Senior Staff Consultant with Engineering Systems Inc. in Fort Myers, Florida, bringing over 20 years of experience in scientific investigation, research, and consulting. Verlaan also engaged in property loss consulting related to insurance, fire investigation, and environmental consulting. Despite his extensive experience, he had not testified in Court before, and his testimony had never been disqualified.
When Verlaan was engaged, the pavement markings at the Wal-Mart store had already been repainted, preventing him from inspecting the accident scene. Instead, he relied on a video of the incident, still photographs taken by Zimmerman, and six months’ worth of company slip and fall information for the location. His analysis revealed that out of 336 people traversing the pavement markings, including the stop bar, the Plaintiff was the only one to slip. Verlaan examined the video for partial slips or slip recoveries among the 118 people who physically stepped on the stop bar, conducting a statistical analysis to determine their steps. This analysis was connected to published research correlating certain levels of coefficient of friction with reduced slipping risks. However, Verlaan did not conduct a slip coefficient test because the surface had changed.
Verlaan conducted a gait analysis of the video footage, noting that the Plaintiff did a partial split while holding a shopping cart. Based on discovery materials, Verlaan opined that reflective cracks in the paint could disperse surface water on the pavement markings, reducing the potential for slips due to hydroplaning. Additionally, he found that the stop bar was not slippery, as no other slip and falls were reported or observed in the preceding six months. Verlaan concluded that the walking surface was slip-resistant, and the Plaintiff’s slip was deemed an atypical random event, supported by video analysis and estimated incident rates.
The Court emphasized the criteria for admissible expert testimony: qualifications, reliable methodology, and helpfulness to the trier of fact. In this case, both parties contended that the opposing expert failed to meet these requirements. However, the Court determined that both Zimmerman and Verlaan were qualified based on their education, training, and experience. Arguments challenging their qualifications were dismissed.
The Court determined that Plaintiff successfully demonstrated the reliability of Zimmerman’s methodology and the helpfulness of his testimony regarding the first opinion. Any perceived shortcomings were deemed matters that go to the weight of the testimony and the admissibility of drawn conclusions or second opinion, which could be addressed during the trial. Conversely, the Court found that Defendant failed to establish the reliability of Verlaan’s methodology or the helpfulness of his testimony. Verlaan conducted no site examination of any kind, relying instead on counting people who did not slip during an arbitrary two-hour period to draw speculative conclusions. The relevance of the numbers of individuals who didn’t slip at or near the pertinent time was acknowledged, but it was not based on his expert testimony.
The Defendant filed a motion for summary judgement. Responses in opposition were also filed but ultimately the motion for summary judgement was denied. The Court citing, Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1169 (11th Cir. 2023), held that, under Florida law, a Plaintiff must establish four elements to sustain a negligence claim: (1) the Defendant owed a ‘duty, or obligation, recognized by the law, requiring the Defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks’; (2) the Defendant failed to conform to that duty; (3) there is ‘a reasonably close causal connection between the nonconforming conduct and the resulting injury’ to the claimant; and (4) some actual harm. The record indicated genuine disputes on material facts, and it did not support the conclusion that the Defendant was entitled to judgment as a matter of law. Consequently, the Court denied the motion for summary judgment.
Held
The Court ruled on three motions: 1) Plaintiff’s Daubert Motion to Preclude Expert Testimony of Derrek-Ian Verlaan was granted; 2) Defendant’s Daubert Motion and Supporting Memorandum of Law to Strike the Opinion and Testimony of Plaintiff’s Expert Christopher Zimmerman was denied; and 3) Defendant’s Motion for Final Summary Judgment was also denied.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In the negligence suit brought by Wilfredo Maribona against Wal-Mart, expert testimony played a crucial role in shaping the arguments of both parties. Plaintiff’s expert, Christopher Zimmerman, utilized his 16 years of experience as a Florida State Licensed Building Inspector and Plans Examiner to assert that the painted stop bar lacked sufficient slip resistance, supporting his opinions with a thorough on-site inspection and visual assessments. Zimmerman’s methodology and qualifications were deemed reliable by the Court. On the other hand, the Defendant’s rebuttal expert, Derrek-Ian Verlaan, faced challenges in establishing the reliability of his methodology, as he conducted no site examination of any kind and relied on counting people who did not slip during a specific period. The Court found Verlaan’s approach lacking and irrelevant to his expert testimony. The Court’s emphasis on qualifications, reliable methodology, and helpfulness to the trier of fact underscores the critical role of expert testimony in negligence claims. Ultimately, the Court’s decision to deny the Defendant’s motion for summary judgment highlights the importance of genuine disputes on material facts in negligence cases, emphasizing the role of expert opinions in establishing liability and potential negligence.
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