On January 22, 2022, Sharon Marshall was dining at an Outback Steakhouse in Fort Smith, Arkansas, when she slipped, fell, and received serious injuries. She alleged that she slipped on soup that had spilled in the floor which Outback had negligently failed to clean up.
Outback has filed motions to exclude or limit the testimony of two of Marshall’s expert witnesses: Dr. Brian Goodman, who is one of her treating physicians, and Jason English, who is an industrial and safety engineer.
Pain Medicine Expert Witness
Brian Goodman, M.D. is a board-certified physician in pain medicine and
anesthesiology. He completed a fellowship in pain medicine. He frequently treats patients suffering from pain caused by slip-and-falls.
Safety Engineering Expert Witness
Jason English is a safety engineer who has two and a half decades of experience as a consultant who performs accident cause analysis, including fall protection and prevention from elevation as well as from the same level.
Discussion by the Court
A. Motion to Limit Testimony of Plaintiff’s Treating Physician Brian Goodman, M.D.
Goodman is a physician who has been providing Marshall with pain management treatment for spinal injuries which she alleges were caused by her fall at Outback. Furthermore, Goodman has also been retained to offer opinion testimony as an expert witness in this case. Specifically, those opinions include the opinion that the spinal injuries and associated pain that he has been treating were caused or worsened by Marshall’s fall at Outback.
However, Outback argued that Goodman should not be allowed to offer these opinions, for two reasons. Firstly, Outback contended that Goodman is not qualified to opine on what caused the injuries that are the subject of this case because he is not a spinal specialist, did not perform surgery in this case, and is not an orthopedic surgeon, neurologist, diagnostic radiologist, or biomechanical engineer. Secondly, Outback maintained that Goodman’s causation opinions are speculative and unreliable because they are based only on Marshall’s statements to him and not on “any sort of scientific analysis” nor on the review of “any additional medical records, depositions, photographs, or otherwise.”
Analysis
The Court found that Goodman was qualified to offer his opinions in this case. Specifically, he has been treating Marshall for pain that he believes was caused by the injuries that are the subject of this lawsuit.
As for Outback’s second argument regarding the reliability of Goodman’s methodology: the Court believed his methods were sufficiently reliable to satisfy the requirements of Rule 702. Outback fixates on the relatively small number of materials Goodman reviewed during the first period when he was treating Marshall, during which time it seems he was relying primarily on her reports to him of her pain to inform his decisions and was unaware of significant parts of her medical history including possibly even the fact of her fall at Outback. However, the critical question for the admissibility of Goodman’s opinions in this case is not what he knew or didn’t know at the time he began treating Marshall, but rather what informed his opinions at the time that he offered them for purposes of this litigation.
And Goodman has testified that before offering his most recent expert report in this case he reviewed many binders of materials containing Marshall’s medical history, both pre-fall and post-fall, and that his opinions in this case were informed by his review of those materials as well as his personal experience treating Marshall and her reports to him of her pain, and his experience treating patients with injuries from slip-and-falls more generally.
Motion to Exclude Plaintiff’s Expert Jason English
Marshall retained English to offer expert opinions about whether the spill caused her fall (he opines it did), and about whether Outback’s response to the alleged spill hazard and training of its employees to deal with such hazards was consistent with industry standards (he opines it wasn’t). Outback offered two arguments for excluding English’s opinions. First, they contended his opinions were not reliable. Second, they said his opinions were not specialized.
Analysis
Regarding reliability, Outback argued that English “is not a hospitality or restaurant expert,” and that his opinions are not based on any examination or testing of the specific floor and restaurant at issue in this case. On the first point, however, English holds a certification in the measurement and evaluation of pedestrian traction on walking surfaces, and is a member of the “ASTM International F13 Committee on Pedestrian/Walkway Safety and Footwear.” The Court determined that clearly has expertise in the topics on which he is opining.
As for testing on the specific floor where Marshall fell, English testified that
he saw no point in testing that floor. Instead, English based his analysis on the deposition testimony, photographs, and document discovery that were produced in this case.
According to English, “the floor in this particular case is just a common commercial flooring found not only in restaurants but other types
of commercial facilities as well.”
Regarding whether English’s opinions are specialized: Outback insisted that “[t]here is nothing specialized, scientific, or particularly technical about his opinion. He has simply looked at all the evidence of record and come to a conclusion. The jury can do the same.”
The Court disagreed. English’s report extensively discussed codes and industry standards around, for example, slip resistance, spills,
warning signs, and cleaning methods, and opined that Outback failed to meet them. He also discussed the “authoritative literature” on “ordinary human
factors” that can influence patrons’ awareness of hazards.
Held
The Court denied the Defendant Outback Steakhouse of Florida, LLC’s motion to limit testimony of Plaintiff’s treating physician Brian Goodman, M.D and motion to exclude Plaintiff’s expert Jason English.
Key Takeaway:
- Goodman took care to emphasize the difference between what information he relied on in forming his opinion of how to treat Marshall and what information he relied on in forming his opinions that were offered for purposes of this litigation.
- English’s report extensively discusses codes and industry standards around, for example, slip resistance, spills, warning signs, and cleaning methods.
Case Details:
| Case Caption: | Marshall V. Outback Steakhouse Of Florida, LLC |
| Docket Number: | 2:23cv2119 |
| Court Name: | United States District Court, Arkansas Western |
| Order Date: | April 11, 2025 |
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