Plaintiff Logan Demboske (“Demboske”) alleged in this premises liability action that he slipped and fell on or about January 30, 2023, on “a transitory foreign substance.”
Demboske has retained David Collette as a walkway expert. In Collette’s expert report, he contended that Demboske slipped and fell on a liquid contaminant on a vinyl floor, coated with floor finish, and was injured on January 30, 2023. Collette opined that the walkway where Demboske slipped and fell was a dangerous condition caused by Greer’s unreasonable standard of care that created a pedestrian slip hazard.
Autry Greer & Sons, Inc., filed a motion to exclude Collette’s opinions on several grounds. First, Greer sought to have the opinions excluded as untimely. Second, Greer argued Collette’s opinions failed to meet the admissibility standards set forth in Federal Rule of Evidence 702.
Walkway Safety Expert Witness
David Collette has a degree in Mechanical Engineering and is a qualified Walkway Auditor. He has over 18 years of experience in developing, commercializing, analyzing, and troubleshooting walkway solutions including chemistry, tools, mats (walk-off, bath), cleaning processes, coatings, treatments, and flooring material selection. Collette is a Walkway Audit Certificate Holder and has a Certificate in Assessing Walkway Safety from the University of Northern Texas.
Discussion by the Court
Collette’s Untimely Report
The Court found Collette’s opinions should be excluded under Federal Rule of Civil Procedure 37(c)(1) because they are incomplete and, thus, untimely. Collette has not provided his entire case list, his case notes, or his billing statements as per the requirements of Rule 26. Despite having two (2) additional months to produce Collette’s written report, the Court found no basis for Demboske’s failure to produce Collette’s full case list, case notes, or invoices.
Federal Rule of 702
As stated above, Collette sought to offer two opinions in this case, a hazard opinion and a breach of the standard of care opinion.
Hazard Opinion
Collette was questioned about his opinion regarding the condition of the walkway at length during his deposition. Repeatedly, Collette admitted that his opinion boils down to this – “water on floor finish is a hazard.” According to Collette, his hazard opinion is not based on Greer selecting the wrong flooring or that the floor was unsafe for any reason. Indeed, the flooring in Greer’s store is a vinyl composition tile (“VCT”) floor – the same type of floor found in large, big-box stores, such as Walmart and Target. Collette’s testimony is simply that standing water makes the finished floor slippery.
The Court held that Collette’s opinion that the floor was a hazard when slippery is a matter “in the realm of common sense” making his opinion a “superfluous” one which provides “no benefit to the trier of fact.”
Also, Demboske’s counsel expressly represented to the Court that she does not seek to have that opinion admitted at trial or for Collette to testify about that opinion. For sake of completeness, the Court finds that even without counsel’s concession, the hazard opinion would be excluded as unhelpful.
Greer also argued Collette’s hazard opinion is unreliable because Collette did not test the flooring until February 5, 2024, more than one year after Demboske’s fall which is why Collette did not know whether the floor finish was the same as at the time of the accident. Because Collette lacks sufficient information about the condition of the floor at the time of the accident, his hazard opinion is also not reliable.
Opinion Regarding Greer’s Breach of the Standard of Care
The second opinion Collette sought to offer is that the hazard condition referenced in his first opinion – that is, that the finished floor was slippery when wet – was caused by Greer’s breach of the standard of care. According to Collette, Greer breached the standard of care by failing to have defined and published procedures, policies, and training programs on slip and fall hazard identification, sweeps, and cleaning. Greer argued this opinion should be excluded under Rule 702 because Collette relies on facts that are not in the record and also, the opinion goes to an ultimate legal issue, which is not within the province of an expert opinion.
The Court held that while Collette may be able to provide testimony regarding industry standards for maintaining, cleaning, and inspecting floors, he cannot opine that Greer breached the standard of care or that such breach caused the hazard condition or injuries. Such testimony is not admissible because
it would usurp the District Court’s pivotal role in explaining the law to the jury.
Held
The Court granted Greer’s motion to strike and to exclude David Collette as an expert witness.
Key Takeaways:
- For sake of completeness, the Court found that even without counsel’s concession, Collette’s hazard opinion would be excluded as unhelpful. As stated above, in assessing helpfulness, “expert testimony is only admissible if it concerns matters that are beyond the understanding of the average layperson and offers something more than what lawyers can argue in closing arguments.”
- Collette’s breach of the standard of care opinion was excluded because it concerned the ultimate issue for the jury to decide.
Case Details:
| Case Caption: | Demboske V. Autry Greer & Sons Inc |
| Docket Number: | 3:23cv24717 |
| Court: | United States District Court, Florida Northern |
| Order Date: | July 15, 2024 |
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