This matter asrises from a slip and fall incident that occurred on May 10, 2020, at the Smith’s grocery store located at 7130 North Durango Drive in Las Vegas, Nevada. Plaintiff, Sierra Golia-Huffman alleged that she slipped and fell on liquid in the floral department while holding her child. Smith’s has produced surveillance footage indicating that (1) Plaintiff walked through the area of incident twice within one minute, the first time being without any incident; (2) Plaintiff was carrying flowers she had just taken from a pot of water on her second time through the area, thereafter slipping and falling; and (3) Plaintiff got up and left the area of incident without letting any employees of Smith’s know that she suffered an incident and without showing any signs of distress.
Smith’s filed motions to exclude the testimony and opinions of Golia-Huffman’s retained forensic engineering and safety expert, Dr. Frank Perez and spine surgeon, William Muir, for a variety of reasons.
Forensic Engineering Expert Witness
Frank A. Perez has a doctorate in mechanical engineering and since 1995 has worked as a forensic engineer in mechanical engineering, accident reconstruction, human factors, and safety. He has previously testified in atleast 300 depositions and at least 100 trials as an expert witness.
Orthopedic Surgery Expert Witness
William S. Muir, MD is Board-Certified with the American Board of Orthopedic Surgeons & fellowship trained Pain Management Expert for 30 years. He graduated from Brigham Young University with honors after he completed a graduate program at Stanford University in physical therapy. He practiced physical therapy in Las Vegas for several years prior to attending medical school at the University of Nevada School of Medicine.
Discussion by the Court
Frank Perez
Unhelpful to the Trier of Fact
Smith’s argued that Perez’s opinions on the conditions of the Smith’s floral department floor should be excluded as unhelpful to the trier of fact because Perez tested and inspected the floor two years after Golia-Huffman’s incident, and because it is “common knowledge that water causes a floor to become slippery.
The Court held that Golia-Huffman sued Smith’s for negligence, based on the floral department floor being wet. So, Perez’s opinions regarding the slipperiness of the floral department floor when wet are pertinent to the negligence inquiry and helpful to the trier of fact. Also, Smith’s did not contend that anything changed in its floral department between Golia-Huffman’s incident and Perez’s examination.
Based on Speculation and Omitting Key Details
Smith’s argued that Perez’s opinions are based on speculation, not objective evidence, and because Perez omits important details from his analysis.
Smith listed a variety of Perez’s opinions that it argued “were not actually based on evidence,” as well as several issues it claimed Perez had omitted.
The Court held that the alleged problems with Perez’s report that Smith’s raises are more properly addressed during cross-examination.
Retail Standard of Care
Smith’s argued that “Perez is not qualified to discuss any type of retail standard of care that should have been exercised by [Smith’s] or its employees or agents” because he does not have any qualifications “regarding retail safety standards or standards regarding inspections of retail establishments, physical sweeping of stores, or experience with floral departments.”
The Court held that Perez’s extensive experience in premises liability cases, as well as his review of the evidence in this case, qualify him to testify as to his opinions on the retail standard of care Smith’s should have used.
Improper Rebuttal Testimony
Smith’s argued that in his third supplemental report, Perez includes opinions that are not proper rebuttal testimony and must be excluded because Perez should have included them in his initial report. These are Perez’s opinions on “the manner in which the water may have fallen on the ground” and his “opinions as to where the water came from that [Golia-Huffman] slipped on.”
In the parties’ third joint stipulation to extend discovery, the parties stated that they did not seek to extend the expert disclosure deadline, but instead “plan[ned] to work together to allow all experts to prepare proper supplemental disclosures.” The Court held that since Perez is responding to new evidence that was not available to him at the time of his initial disclosure, his supplemental reports are not excluded for offering opinions that should have been disclosed in his initial report.
William Muir
Smith’s moved to exclude medical expert Dr. William Muir’s testimony as untimely and lacking foundation. They argued that Muir’s reports are untimely because in his second supplemental report, he reviewed documents that were over two years old, but he did not explain why he included these documents in the second supplemental report instead of in his initial report. Smith’s acknowledged that the parties said they would work together to allow their experts to properly supplement their reports, but Smith’s did not consider a two-year delay a proper supplement. Smith’s also argued that several of Muir’s opinions are flawed because they lack foundation.
The Court held that the disclosures were timely per the parties’ agreed upon extension of the deadlines and refused to exclude Muir’s testimony for lack of foundation, as this goes to impeachment and may be addressed by Smith’s on cross-examination.
Held
The Court denied Smith’s motions to exclude the testimony and opinions of Golia-Huffman’s retained forensic engineering and safety expert, Dr. Frank Perez and spine surgeon, William Muir.
Key Takeaways:
- Perez’s opinions regarding the slipperiness of the floral department floor when wet are pertinent to the negligence inquiry and helpful to the trier of fact.
- Perez’s extensive experience in premises liability cases, as well as his review of the evidence in this case, qualify him to testify as to his opinions on the retail standard of care Smith’s should have used.
Case Details:
| Case Caption: | Golia-Huffman V. Smith’s Food & Drug Centers, Inc. |
| Docket Number: | 2:21cv1260 |
| Court: | United States District Court for the District of Nevada |
| Order Date: | July 29, 2024 |
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