This lawsuit arises out of the designation of Sassine Avenue as a “no truck route.” Plaintiff, Kirk Thomas, engages in various agricultural and commercial pursuits, many of which involve the use of his property. Consequently, commercial vehicles commonly travel to and from Thomas’s property.
Plaintiffs Thomas and KT Trucking and Cattle, LLC, asserted that the only safe way for a commercial vehicle to access Thomas’s property is via Sassine Avenue in Port Arthur, Texas. Port Arthur, however, has designated Sassine Avenue as a “no truck route,” which prohibits large commercial vehicles from using Sassine Avenue to enter Thomas’s property.
On March 15, 2024, Plaintiffs designated Raegan Droddy as a testifying expert. Plaintiffs anticipated that Droddy’s testimony would demonstrate that Sassine Avenue provides the only means for commercial vehicles to access Thomas’s property safely.
Defendants maintained that Droddy should be struck as an expert because he is not qualified to opine on the matters contained in his report. Alternatively, Defendants asserted that Droddy’s report was unreliable because it was based on insufficient facts and data. Therefore, Defendants asked this Court to strike Droddy as an expert.
Safety Expert Witness
Raegan Droddy is a retired Texas State Trooper with approximately 24 years of experience working for the Texas Department of Public Safety (“DPS”).
For 13 of his 24 years of experience, Droddy worked in the Commercial Vehicle Enforcement Service. Droddy also served as a crash scene investigator and taught multiple classes on Texas traffic laws and basic crash Investigations. Droddy currently owns and operates Droddy DOT Safety Consulting, Inc., where he conducts safety assessments and audits, provides safety presentations for trucking companies, and reviews company policies, procedures, shipping papers, driver qualifications, and crash paperwork.
Defendants contended that Droddy was not qualified to testify as an expert on the subject matter contained in his report because he did not have the requisite experience, education, or knowledge. Defendants asserted that Droddy’s report consisted of “numerous engineering opinions regarding the safety and availability of access to Thomas’s property.” Droddy did not have an engineering degree. Consequently, Defendants claimed that Droddy is not qualified to testify on the engineering opinions contained in his expert report.
Plaintiffs successfully neutralized Defendants’ concerns regarding Droddy’s qualifications in one broad-sweeping stroke. Droddy’s report did not contain opinions that require him to have an engineering degree. Droddy bases his report on his knowledge and experience that he acquired during 24 years of service with the DPS. Droddy’s report focused on basic measurements, observations, and data. Droddy’s report then analyzed those facts under the purview of his specialized knowledge of commercial vehicles, traffic regulations, and highway safety hazards. Droddy did not attempt to opine on the structural integrity of the road, nor does he attempt to apply complex mathematical formulas beyond his training and expertise. At its core, Droddy’s report opined on matters of traffic safety, not matters of engineering. Moreover, an engineering degree is not required to evaluate the safety of certain vehicular maneuvers.
Furthermore, the Court held that Plaintiffs have met their burden of demonstrating, by a preponderance of the evidence, that Droddy is qualified to testify on matters of traffic safety and commercial vehicles. Droddy has extensive education regarding commercial vehicles, including his attendance at the Commercial Vehicle Crash Inspection School as recently as 2023. Consequently, in light of Droddy’s extensive experience with commercial vehicles, commercial crash scene investigations, and highway law enforcement, the Court concluded that Droddy is qualified to testify on matters of traffic safety.
Droddy’s Reliability
Droddy discussed safety issues associated with commercial vehicles utilizing different roads to access Thomas’s property. As a result, the Court must evaluate whether Droddy’s report is predicated on sufficient facts and data. In his report, Droddy relied on his personal observations of Spur 93 and Sassine Avenue, the measurement of a KT Trucking vehicle, the width of the proposed access point on Spur 93, the relevant speed limits and traffic signals, photographs of Thomas’s property, online maps, and the Texas Department of Transportation and Safety’s most recent average daily traffic count for Spur 93. A review of Droddy’s report demonstrated that he methodically gathered facts to form the basis of his opinion. Additionally, Droddy’s report outlines the interplay between various facts and states the impact of those interactions on the safety of certain vehicular maneuvers. Accordingly, the analytical gap between the facts Droddy gathered and the conclusions he reached is narrow. Therefore, Plaintiffs have established that Droddy’s report is substantiated by sufficient facts and data.
Defendants, however, contended that Droddy’s report was unreliable because Droddy admitted that he was unsure whether he reviewed a map of Port Arthur’s “no truck” routes and that he did not review its zoning ordinances. Defendants also emphasize that Droddy failed to interview anyone besides Thomas when gathering facts and data.
The Court held that Droddy’s lack of consideration of certain documents and sources did not render his opinion unreliable.
Held
The Court denied the Defendants’ motion to strike Plaintiffs’ expert Raegan Droddy.
Key Takeaway:
Droddy is qualified to testify on matters of traffic safety considering his extensive experience with commercial vehicles, commercial crash scene investigations, and highway law enforcement.
Droddy’s report outlines the interplay between various facts and states the impact of those interactions on the safety of certain vehicular maneuvers. Accordingly, the analytical gap between the facts Droddy gathered and the conclusions he reached is narrow. The Court held that Droddy’s lack of consideration of certain documents and sources did not render his opinion unreliable.
Case Details:
Case Caption:
Thomas V. City Of Port Arthur, Texas
Docket Number:
1:23cv282
Court:
United States District Court for the Eastern District of Texas
This is a maritime personal injury case. Plaintiff Elvis Lopez alleged that on August 2, 2023, he was offloading cargo from the M/V Harvey Intervention in the scope of his employment with Harvey Gulf. While unloading the cargo, he tripped on the grating of the vessel’s stairs, which he alleges was “unstable because it was not braced and secured.” Lopez injured his knee, back, and neck in the fall. Harvey Gulf brought him to their company doctor, who performed surgery on the torn medial meniscus in his right knee.
Moreover, Lopez alleged that he complained of further pain in his neck and back, but that Harvey Gulf did not arrange for him to undergo MRIs of those areas. According to Lopez, Harvey Gulf released him to return to work too soon, and without obtaining a fit for duty release from the doctor. Lopez stated three causes of action in this case: (1) Jones Act negligence; and (2) general maritime negligence and unseaworthiness and (3) a claim for maintenance and cure.
Harvey Gulf moved to exclude the testimony of Lopez’s safety expert, Robert Borison. Borison provided a report in which he offered two opinions. First, he opined that Harvey Gulf allowed others to improperly install the fiberglass stair grating which Lopez tripped on. Specifically, Borsion opined that the installation of the grating did not meet American Society for Testing and Materials (“ASTM”) safety standards because the edges, where two panels of grating met, were not properly supported or fastened together. Second, Borison opined that Harvey Gulf failed to properly inspect the grating after its installation. He avers that testimony suggests that the grating moved or deflected when walked on, which should have put Harvey Gulf on notice that it was unstable and a tripping hazard.
Safety Expert Witness
Robert E. Borison possesses over 50 years of safety experience in industries related to the exploration, production, and transport of oil and gas, as well as the marine, general, and commercial sectors. His expertise encompasses safety issues across various settings, including production platforms, barges, structural and fabrication yards, as well as vessels/boats, commercial and industrial buildings, and building projects. Borison obtained his degree in Business Administration from Louisiana State University. He currently serves as the President of Total Safety Services, Inc.
To begin with, Harvey Gulf avers that Borison’s testimony should be excluded as it will not help the jury. It avers that “no expertise of any kind was required or used to render Borison’s opinions” and that “this incident falls well within the common knowledge of the jury.”
Lopez contended that Borison’s opinions are “based on specialized knowledge of ASTM standard specifications.” Harvey Gulf replied, arguing that Borison’s explanation of the ASTM safety standards is not helpful to the jury.
The Court notes that Borison has expertise in maritime safety matters. He has analyzed the application of ASTM standards to the facts of this case, which the Court finds would be beyond the knowledge of an average juror. Other distrct courts have indeed held that an expert’s knowledge and application of ASTM standards in a maritime trip and fall case is relevant and admissible.
The Court likewise finds that Borison’s testimony will likely be useful in explaining the ASTM standard and its application to the jury. The proper installation technique of fiberglass grating on a vessel is not within an average juror’s common knowledge. Thus, although this is a tripping case, the Court found that it is more complex than other tripping cases where Borison’s testimony was excluded.
The Court is not persuaded that the jury can use their “common sense” to determine whether the fiberglass grating was properly installed, with the correct use of grid overlap and fasteners.
Held
The Court denied Harvey Gulf’s motion to exclude Robert Borison’s testimony.
Key Takeaway:
Borison has expertise in maritime safety matters and his testimony will likely be useful in explaining the ASTM standard and its application to the jury. He has also analyzed the application of ASTM standards to the facts of this case.
By this suit, Plaintiff Anthony Guernon brought claims of negligence and negligence per se against Defendant Joel Barroso and for vicarious liability against Barroso’s Employer, Stevens Transport, Inc. (“Stevens Transport”), arising out of a motor vehicle accident which occurred on May 3, 2021, In El Paso County, Colorado. Following several extensions, the parties were required to designate rebuttal experts on or before August 26, 2024.
On that date, Defendants submitted a document in which they designated the following expert witnesses:
4. Margot Burns, a rehabilitation specialist and life care planner; and
5. James Desmond, an expert on the standard of care in the trucking industry.
Guernon objected that Karraker, Morgenstern and Stull, and Burns actually are affirmative, not rebuttal, witnesses, and therefore their designations are untimely and should be stricken. He further claimed Karraker and Morgenstern asserted opinions beyond their expertise.
Accounting Expert Witness
Jon Karraker is an expert witness in the field of accounting of personal injury losses in both the private and business sector.
Philip Stull completed his residency in orthopedic surgery at the New York Orthopedic Hospital/Columbia-Presbyterian Medical Center in New York City and graduated in 1993. He then received specialized training in sports medicine by completing a year-long fellowship at the University of Colorado and Aspen Valley Hospital in Aspen, Colorado. He has experience treating professional, collegiate, high school, and all levels of recreational athletes.
Margot Burns is a Clinical Case Manager, Clinical Supervisor, Behavioral and Vocational Specialist encompassing all phases of brain injury rehabilitation from acute neurobehavioral and coma management to post-acute and outpatient, community-based services. Burns holds a Master of Science in Rehabilitation Counseling and a Certificate in Life Care Planning.
James Desmond is a Certified Director of Safety Certificate, an OSHA 30 Hour General Industry Certificate, and a Driver Improvement Instructor/Trainer Certificate. Desmond is a Department of Transportation Designated Employer Representative, holds a Commercial Drivers’ License and is the President of Coastal Carrier Compliance and Consulting.
The Court cannot properly assess these arguments, however, because they are stated at such a high level of generality that they present no argument at all. Essentially, Guernon has done little more than state what he seeks to prove – that the witnesses are actually affirmative experts and/or that their opinions exceed their proper area of expertise. The Court is neither required nor inclined to consider such “cursory, unsupported, or otherwise inadequately briefed arguments.”
Moreover, the Court held that the difficulty in analyzing what little argument is discernable in the motion is compounded by Guernon’s failure to provide the Court with the allegedly problematic defense expert reports, his own experts’ reports for purposes of comparison, or any of the experts’ curriculum vitae.
Guernon’s belated submission of the challenged reports in connection with his reply brief does not cure his initial failure to produce them, especially when the reply does nothing more than invite the Court to peruse the documents itself for evidence in support of his prior, inadequate arguments. As a result, the Court denied the motion to strike the designations of these four experts as improper.
With regard to the fifth expert, Desmond, who will testify to the standard of care in the trucking industry, Guernon asserted his opinion is irrelevant because Stevens Transport has conceded vicarious liability for the actions of Barroso. Guernon pointed to nothing in the record demonstrating Stevens Transport has made such a concession, and Stevens Transport denies it has done anything other than acknowledge that if – and only if –Barroso ultimately is found liable for negligence, it will be vicariously liable for any damages caused thereby. The issues addressed by Desmond’s report therefore appear to remain in play in this lawsuit. Therefore, the Court denied the motion to strike his testimony.
Held
The Court denied the Plaintiff’s motion to strike or exclude the opinions untimely and improperly disclosed.
Key Takeaway:
Guernon objected that Karraker, Morgenstern and Stull, and Burns actually are affirmative, not rebuttal, witnesses, and therefore their designations are untimely and should be stricken. He further claimed Karraker and Morgenstern asserted opinions beyond their expertise. Essentially, Guernon has done little more than state what he seeks to prove – that the witnesses are actually affirmative experts and/or that their opinions exceed their proper area of expertise. The Court is neither required nor inclined to consider such “cursory, unsupported, or otherwise inadequately briefed arguments.”
Case Details:
Case Caption:
Guernon Et Al V. Barroso Et Al
Docket Number:
1:22cv2547
Court:
United States District Court for the District of Colorado
This case concerns a trip-and-fall accident. Pedero Sanders alleged that, on November 8, 2022, he was employed by Weeks Marine as a Jones Act seaman assigned to the dredge JS Chatry. He claimed that, in the course of his work, he tripped and fell while retrieving supplies from a shack on land.
According to Sanders, the supply shack is pulled into place at the worksite using “D-rings,” and he tripped over one of the rings that was supposed to be buried, but was not, resulting in bodily injuries.
Sanders filed this suit against Weeks Marine, alleging claims for Jones Act negligence, unseaworthiness, and maintenance and cure.
Weeks Marine filed two motions in limine to exclude the testimony and opinions of Sanders’ experts – one directed at Sanders’ safety expert, Robert Borison, and the other at Sanders’ economic loss expert, Max Lummis.
Safety Expert Witness
Robert Borison brings to the table over 50 years of safety experience in the industries relating to the exploration, production, and transport of oil and gas and the marine, general, and commercial industries. His expertise in safety issues on production platforms, barges, structural, fabrication yards, vessels/boats, commercial and industrial buildings, and building projects is extensive.
Max Lummis is a Certified Public Accountant licensed in Texas and Colorado, a Certified Valuation Analyst and a Certified Fraud Examiner. Lummis has worked as a forensic accounting professional since 2004. He founded LCS Forensic Accounting & Advisory (a certified public accounting firm) in 2012 and has been its managing member since. He has been disclosed as an economic damages expert witness on over 200 matters.
Weeks Marine’s motion to exclude Sanders’ safety expert Robert Borison
Borison reviewed the evidence in this case and performed “root cause” analysis in which he opines that Weeks Marine failed to provide Sanders with a safe vessel to work on because did not remove the shackle and D-ring from the supply shack’s skid after setting it up for service.
Weeks Marine argued that Borison’s testimony and opinions should be excluded because expert testimony is not necessary to understand the issues presented in this simple trip-and-fall case. Defendants contended that a trip-and-fall hazard is within the ordinary understanding of a lay juror and the issues can be resolved by employing common sense. Defendants also pointed out that Borison opined that it failed to provide Sanders with a safe vessel, which amounts to a legal conclusion for the factfinder to make.
Weeks Marine contended that Sanders underestimates the intelligence of the average juror, who can understand, without expert testimony, the circumstances surrounding a trip-and-fall accident and that a pre- task meeting (including a Job Safety Analysis) can be helpful to prevent accidents.
Weeks Marine also urged that Borison should not be permitted to testify about JSAs or why supply shacks are needed and how they are moved and placed because his report does not state any opinions on those topics.
Despite being qualified, Borison’s opinion does not relate to any specialized maritime activity or equipment for which expert testimony would be required. The average juror is certainly familiar with tripping hazards and can resolve the issues presented in this case without expert testimony. Further, Borison’s opinion on tripping hazards does not implicate industry standards that are not also within the understanding of jurors. Moreover, Borison cannot testify about JSAs or the use and movement of supply shacks because he does not discuss them in his report.
Weeks Marine’s motion to exclude or limit Sanders’ economic loss expert Max Lummis
Lummis issued a report with four calculations: (1) Sanders’ past lost wages from the date after the accident (November 9, 2022) to the expected trial date (November 18, 2024) in the amount of $197,153; (2) Sanders’ future lost wages through his average work- life expectancy of 61 years, discounted to present value, in the amount of $2,513,712; (3) Sanders’ future lost wages if he works until age 62, discounted to present value, in the amount of $2,616,386; and (4) Sanders’ future lost wages if he works until age 70, discounted to present value, in the amount of $3,442,865.
To calculate the lost future earnings, Lummis “increased projected pre-tax annual earning capacity each year from 2023 through Plaintiff’s average work life expectancy using an inflation-adjusted ‘real’ wage growth of 0.83%,” then he “discounted back to the expected trial date using an inflation-adjusted risk-free rate of 0.56%.”
Lummis’ Testimony and Opinions regarding Sanders’ Future Lost Wages should be Excluded
Weeks Marine sought to exclude or limit Lummis’ testimony and opinions regarding Sanders’ future lost wages, arguing that he doubly accounts for inflation. It contended that Lummis, without evidence of Sanders’ potential wage growth, speculatively increased Sanders’ annual wages by 0.83%, and then applied a 0.56% discount rate, which allows Sanders to “double-dip” on his future wage loss claim. Weeks Marine further argued that Lummis should not be permitted to testify as to Sanders’ future lost wages beyond his statistical work-life expectancy of 61 years because there is no evidence that he would work longer.
It also argued that Lummis should not be permitted to present evidence of future lost wages beyond Sanders’ statistical work-life expectancy because there is no evidence that Sanders would have worked that long. Finally, Weeks contended that Lummis should not be permitted to amend his report to provide new calculations because the time has passed for providing expert reports and he could have performed the calculations correctly in the first place.
Lummis’s calculations are wrong as a matter of law
The Court held that Lummis’ testimony and opinions on Sanders’ future lost wages are inadmissible because he doubly accounts for inflation. As noted above, Lummis increased Sanders’ annual income by a factor of 0.83%, and then discounted the income stream to present value using a 0.56% discount rate. The supposed annual increase was based entirely on the statistical wage growth rate developed by the Bureau of Labor Statistics (which rate Sanders admits is “inflation-adjusted”), not evidence of Sanders’ actual expected increased earnings due to personal merit or increased experience. In other words, Lummis’ calculations are wrong as a matter of law and must be excluded from trial.
The Court, however, allowed Lummis 14 days to amend his report utilizing the proper methodology.
The Court added that Lummis may testify at trial as to Sanders’ future lost wages up to ages 62 and 70, if Sanders first presents other evidence that he would have continued to work past his statistical work-life expectancy of 61 years. It held that Weeks Marine’s motion in limine to exclude Lummis’s testimony concerning Sanders’ future lost earnings up to ages 62 and 70 is denied.
Held
The Court granted Weeks Marine’s motion in limine to exclude Robert Borison’s testimony but granted in part and denied in part Weeks Marine’s motion in limine to exclude Max Lummis’ testimony.
Key Takeaway:
Borison’s sole opinion is that the exposed D-ring created a tripping hazard. This opinion does not relate to any specialized maritime activity or equipment for which expert testimony would be required.
Lummis’ calculations are wrong as a matter of law because he doubly accounts for inflation. Lummis increased Sanders’ annual income by a factor of 0.83%, and then discounted the income stream to present value using a 0.56% discount rate. The Court held that the supposed annual increase was not based on evidence of Sanders’ actual expected increased earnings due to personal merit or increased experience but on the statistical wage growth rate developed by the BLS, which rate Sanders admits is “inflation-adjusted”.’
Case Details:
Case Caption:
Sanders V. Weeks Marine, Inc.
Docket Number:
2:23cv7317
Court:
United States District Court for the Eastern District of Louisiana
Plaintiff Bailey Aldrich slipped and fell from a single step landing at a United States post office, injuring her foot. Aldrich testified that as a result of her fall, all of her weight landed on her right foot, and she broke three bones in the top of her right foot close to her ankle. She then landed on her bottom and was in immense pain. Aldrich believed that the condition that caused her fall was created by trucks running into the back of the landing.
Plaintiff’s liability expert, William Marletta, testified that the inspections performed by the United States Postal Service were deficient and that “anybody inspecting this should have been able to pick up that there were problems.” He added that there are issues that are not found or cited in inspections that could still be considered dangerous or defective conditions.
Defendant challenged Marletta’s opinions on several bases: that they (1) form inadmissible legal conclusions; (2) are not based on reliable principles and methods; and (3) are based on facts not in the record that are speculative and do not assist the trier of fact.
Safety Expert Witness
William Marletta is an internationally recognized safety professional with many professional honors including an “Award of Merit” from The American Society of Testing and Materials (ASTM) for his contributions to the development of standards, and was a world recipient of the American Society of Safety Engineers (ASSE) Safety Professional of The Year.
Marletta’s Opinions Form Inadmissible Legal Conclusions In Part
In one of his opinions, Marletta claimed that Defendant was “negligent in failing to properly maintain, repair, and/or replace the defective condition, or provide adequate warnings in accordance with The New York City Building Code, as well as good and accepted safe practice.”
The Court held that the word “negligent” impermissibly embraced a legal conclusion. However, the Court accepted Plaintiff’s suggested revision of the opinion to: “the owner(s) of the property and its agent (“Defendants”) failed to properly maintain, repair, and/or replace the defective condition, or provide adequate warnings.”
Marletta concluded that the loading dock “became a means of egress when [Plaintiff] was instructed to enter the accident area.” Marletta opined that there were “dangerous slopes that forward pitched the curb as a ramp.” Whether the loading dock was a means of egress and whether it was a ramp are questions of law to be decided by the Court because these are both legal terms used in the Building Code. Accordingly, the Court excluded these opinions.
Marletta interpreted various codes and statutes, including iterations of the Building Code and American Disabilities Act. Defendant argued that the applicability and interpretation of various codes and statutes are matters of law for the Court to decide.
The Court held that Marletta’s opinions provide information on standards and deviations from them. He cites code and statute violations as part of his overall analysis regarding Defendant’s alleged failure to maintain the step. Defendant has not identified any viable basis to exclude these opinions.
Whether the opinions are applicable to the instant matter, however, depends on if the Court determines that the loading dock is a means of egress and the landing is a ramp, which the Court lacks sufficient information to do at this juncture.
Marletta’s Opinions Are Based on Sufficient Facts
Marletta relied on the following materials when forming his expert opinions: (1) photographs of the accident area; (2) inspection and maintenance problem reports; (3) Plaintiff’s deposition testimony; (4) depositions from Post Office employees; (5) various other litigation materials provided to him by Plaintiff’s counsel; and (6) an onsite inspection on November 15, 2022.
Lack of Visual Cues
Marletta concluded that a lack of visual cues was the proximate cause of Plaintiff’s accident. Defendant claimed that Marletta’s opinion should not be persuasive, because, for example, Plaintiff was not looking down at the time of the accident. The Court refrained from excluding this opinion because Defendant had not pointed to any reason why the materials Marletta relied upon were insufficient.
When Marletta concluded that the “excessive height of the single-step riser was a proximate cause” of Plaintiff’s injury, the Court held that Defendant’s criticisms go to the weight, not the admissibility, of the proffered testimony.
Untested Conjecture
Defendant took issue with Marletta’s statement that the landing was a “smooth, hard surface” and that when a “smooth, hard surface is combined with water or a foreign substance left laying on its surface, conditions are ripe for a slip and fall accident.” Defendant argued that Marletta’s testimony that “it would not surprise [him]” if there were water or a foreign substance on the landing is “untested conjecture.” Marletta cannot testify as to unsupported beliefs about whether there was water or a foreign surface on the landing. But the Court, at this juncture, will not exclude the opinion that when a smooth, hard surface is combined with water or a foreign substance, conditions are ripe for an accident.
Location of the Accident
When Defendant pressed for exclusion because Marletta was unable to identify with certainty the location of the accident, the Court held that Marletta identified generally where Plaintiff’s accident occurred; it is not entirely uncertain where Plaintiff fell. The Court, as finder of fact at trial, will determine how much weight to assign to the fact that Marletta determined the average roughness of the landing.
Similarly, Marletta noted that the “loading dock and curb had worn metal, excessive slopes, garbage and filth, an excessive riser, and more.” Although Defendant argued that there is no evidence that these conditions existed or contributed to the accident, the Court will determine what weight, if any, to assign this opinion at trial.
Marletta’s statements are not connected to the facts of the case
Marletta opined that conditions “contrary to our expectation” can contribute to a slip and fall. He concluded that the “normal cone of vision of the pedestrian” makes hazards on walking surfaces difficult to distinguish. Marletta also concluded that surface changes are “difficult to distinguish due to the to view perspective of the pedestrian.” The Court held that Defendant’s conclusory arguments that Marletta’s statements are not connected to the facts of the case fail to establish that these opinions were not based upon reliable data and methodology or will not assist the Court as the finder of fact.
The Court also saw no reason to exclude Marletta’s opinion that that “these departures from codes, rules, regulations and good and accepted safe practice were the proximate cause(s) of the accident.”
Defendant’s Other Arguments to Exclude Marletta’s Expert Testimony Are Unavailing
Marletta opined that “there was a failure to adequately train employees in safe practices that prohibited pedestrians from entering into dangerous areas.” Defendant’s only argument was that this testimony did not raise any material issue of fact, which the Court held was not a basis to exclude the testimony.
Defendant also quibbles with Marletta’s statement that additional warning signs should have been posted in the area of the accident. Defendant argued that the landing was painted in yellow, therefore providing a warning and that Plaintiff was aware of the step. The Court, once again, held that Defendant did not point to any basis to exclude this opinion.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude William Marletta’s testimony.
Key Takeaways:
Any gaps or inconsistencies in Marletta’s report go to the weight of the evidence, not its admissibility, as Marletta’s report is based on sufficient facts and data.
When an expert offers an opinion relevant to applying a legal standard, the expert’s role is limited to describing sound professional standards and identifying departures from them.
A district judge in Oklahoma noted the expert witness’ extensive background in event safety at live events but barred him from testifying because he never inspected the area where Plaintiff fell and ignored relevant statutes and codes.
Plaintiff Boulac sought damages for injuries she allegedly sustained at the Bank of Oklahoma Center (“BOK Center”) in Tulsa, Oklahoma. Boulac was covering the NCAA Basketball Tournament as a member of the CBS Sports crew. She tripped on a cheerleader mat in a walkway.
On February 26, 2024, Defendant SMG identified Steven A. Adelman as an expert to provide an opinion on whether SMG breached or satisfied its duty of care owed to Boulac under Oklahoma law.
Adelman concluded that SMG met its duty of care by ensuring the mat was wholly outside the marked walkway designated for production workers and Boulac failed to meet her duty to maintain reasonable situational awareness. In other words, Boulac’s breach of her own duty of care was a proximate cause of her unfortunate injuries.
Plaintiff Boulac contended that Adelman should be permitted to testify because he lacked the knowledge, skill, experience, or education to qualify as an expert; Adelman’s opinions did not help the jury to understand the evidence or determine the facts in issue; and Adelman’s testimony was not supported by sufficient facts or data, or the product of reliable methods.
Safety Expert Witness
Steven A. Adelman has practiced as an attorney with Adelman Law Group, PLLC, “focusing on risk and safety at live events throughout North America” since 2010. He is the vice president of an international trade association Event Safety Alliance, since 2012. He is the principal author of “Crowd Management,” “Event Security,” “Event Safety Alliance Reopening Guide,” and editor of the forthcoming “Event Safety Guide,” second edition. Adelman was also an adjunct faculty member at Arizona State University, teaching “Risk management in Venues,” and an online “Sports Facilities Management” course.
Defendant SMG retained Adelman to offer testimony about “event safety standard of care.” Plaintiff Boulac contended Defendant SMG “was attempting to pass a litigation-experienced lawyer as an expert witness in a premises liability case.”
Qualifications
Adelman describes himself as “an authority regarding safety at live events, particularly crowd management and event security.” Adelman focuses on risk and safety at live events throughout North America. Plaintiff Boulac argued that Adelman’s “education and work history demonstrated that he lacked the necessary experience to opine on event safety standards of care or Human Factors Engineering principles and definitions.” Adelman testified to never taking any classes on live event operations or crowd management, either during school or since graduation from law school. He admitted to not having any licenses or certifications in these, or the event safety fields.
The Court, however, concluded that Adelman was qualified in the area of event safety because of his extensive background in event safety at live events, including many publications and his position as the vice-president of an international trade association.
Reliability and Relevance
The Court held that Defendant SMG failed to meaningfully satisfy its burden at each step of the Daubert analysis and instead focused solely on the supposed difference between “back of house” and “front of house” standards of care.
To begin with, Adelman’s three opinions—Defendant SMG met its duty of care, Plaintiff Boulac failed to meet her duty, and Plaintiff Boulac breached her duty of care— were all legal conclusions.
Next, the Court concluded that Adelman’s testimony would not help the jury understand the evidence or to determine a fact in issue. As Adelman acknowledged (and as Plaintiff Boulac pointed out), “there is no standard of care that requires venue operators to store thick mats any particular distance away from brightly marked paths of travel in a back of house production area such as BOK Center during an NCAA tournament.”
The Court also agreed with Plaintiff Boulac that testimony on situational awareness did not require specialized knowledge and would be commonly known and easily understood by the jury.
The Court held that Adelman’s opinions were based upon the various court documents filed in this case (complaint, motion for summary judgment, discovery responses), BOK Center contracts, incident reports and depositions. Adelman never inspected the area where Boulac fell and ignored relevant statutes and codes. In conclusion, Adelman’s testimony was not supported by sufficient facts or data, or reliable principles and methods.
Held
The Court granted the Plaintiff Boulac’s motion to exclude the testimony of Defendant’s purported expert, Steven A. Adelman.
Key Takeaways:
Whether Defendant SMG reasonably knew or should have known of the alleged dangerous condition, and whether it acted reasonably in mitigating and protecting against the danger, are factors in determining whether an owner is liable to an invitee under Oklahoma law. This led to the Court rejecting all of Adelman’s three opinions—Defendant SMG met its duty of care, Plaintiff Boulac failed to meet her duty, and Plaintiff Boulac breached her duty of care.
Adelman contended that Boulac failed to meet her duty to maintain reasonable situational awareness. The Court held that testimony on situational awareness did not require specialized knowledge.
The Court found that Adelman never inspected the area where Boulac fell and ignored relevant statutes and codes. In this regard, Adelman’s testimony was based on subjective belief or unsupported speculation
A district judge in Texas allowed a truck safety expert to testify about safety regulation compliance after stating that his testimony did not consist of methodological flaws.
Plaintiff Antoine Manson alleged that on March 20, 2021, at about 3:00 a.m., he was traveling on Loop 1604 in Bexar County, Texas when he was struck by Defendant Mariel A. Arias-Padilla (“Defendant Driver”), who was driving a commercial motor vehicle within the course and scope of her employment with Defendants B&S Trucking of Jackson, LLC (“Defendant Company”) and JJ&C Express Corp.
The force of the impact allegedly caused Plaintiff to lose control and subsequently crashed into the median concrete barrier. Plaintiff alleged that he suffered major injuries as a result.
Plaintiff sought to exclude the testimony of Rodney Ellis, Defendants’ expert witness. The Defendants designated Ellis as a commercial vehicle safety and safety regulation compliance expert. The Defendants stated that Ellis may testify regarding “commercial vehicle safety, hiring, training, supervision, risk management, loss prevention, regulatory compliance, operations, driver qualifications, driver safety procedures, hours of service regulations, and driving techniques.”
Safety Expert Witness
Rodney Dean Ellis II has been involved in the trucking industry as a licensed commercial truck driver and safety consultant since 1991, performed “dozens of audits of commercial motor carriers/shippers,” and received professional training by several transportation associations.
Plaintiff did not appear to challenge Ellis’ qualifications to testify. Rather, Plaintiff disputed Ellis’ conclusion that while Defendant Driver “was in off duty status, the global positioning data in the driver log records indicated that she had a co-driver who drove the tractor-trailer while she was off-duty.”
Plaintiff asserted that in reaching this conclusion, Ellis ignored key evidence including i) the driver logs do not indicate a co-driver; ii) Defendant Driver provided conflicting deposition testimony regarding the presence of a co-driver; and iii) the police report does not indicate the presence of such a co-driver.
Defendants countered that Ellis relied on several parties’ depositions (including Defendant Driver), driver logs, global positioning data contained within the driver logs, and an “Interview with [Driver Defendant] Mariel Arias-Padilla.”
Based on this information, Ellis testified he concluded there was evidence of a second driver because there was no unidentified driver movement of the vehicle in the logs, supporting that another driver with identifying credentials was logged into the system; that the logs contained no error messages consistent with Defendant Driver logged out but no other driver logged in; and that the data shows another driver logged into the database, though it does not specify which driver.
Moreover, the Court held that the Plaintiff did not identify any methodological flaws with Ellis’ work. Rather, Plaintiff pointed to extrinsic evidence—such as conflicting testimony from Defendant Driver or the police report—to undercut Ellis’ interpretation of the driver logs.
In conclusion, the Court found Ellis’ opinion reliable, because the driver logs were crucial in determining whether Defendant Driver was fatigued at the time of the accident.
Held
The Court denied the Plaintiff’s motion to exclude Defense Expert Rodney Ellis.
Key Takeaway:
The Court, citingHolcombe v. United States, 516 F. Supp. 3d 660, 675 (W.D. Tex. 2021), held that an opposing party’s “doubts about the bases” of an expert opinion did not render an expert opinion “unsupported,” and such questions affected “the weight to be assigned to that opinion rather than admissibility.”
A district judge in California barred a safety expert witness from testifying about lack of intentional discrimination despite being qualified to offer an opinion on the subject matter.
Plaintiff Melvin Patterson is deaf. He brought this action under Title III of the Americans with Disabilities Act and the California Unruh Civil Rights Act against Defendants Six Flags Theme Parks, Inc., Six Flags Entertainment Corp., and Park Management Corp. (collectively, Defendants).
Plaintiff alleged Defendants discriminated against him by refusing to provide an American Sign Language (ASL) interpreter for planned visits to Defendants’ amusement park, Six Flags Discovery Kingdom in Vallejo, California.
Plaintiff contended that Minnick is not qualified, his anticipated testimony is unreliable and unhelpful, his testimony contains pure conclusions of law, and he improperly offered opinions as to other witnesses’ state of mind.
Safety Expert Witness
Robert F. Minnick is a safety, compliance, and engineering technical executive with broad-based experience in designing, implementing, and sustaining improvements for resort hotels, theme parks, and entertainment facilities worldwide.
Specifically, he is an expert in ADA compliance and provides consulting services to theme parks to improve the customer experience for persons with disabilities and barrier removal. He previously worked as a technical director of safety and accessibility at Walt Disney Parks & Resorts in Florida, among other positions. He previously worked as a technical director of safety and accessibility at Walt Disney Parks & Resorts in Florida, among other positions.
Minnick describes the following opinions in his report, which the Court has numbered for ease of reference:
“After examining the documents listed [in my report], I do not find any evidence of discrimination by the Defendant. I saw evidence of one Six Flags Guest Relations employee getting confused about their service offerings for persons with disabilities, but no intentional discrimination.”
“Requests for ASL interpreters are very rare at Six Flags Discovery Kingdom. . . . Since requests are so rare, it’s not surprising to this expert that a seasonal employee such as Mercedes Wilson in the Six Flags Operations Office would be confused about the range of service offerings for the deaf or hard of hearing.
“Melvin Patterson appears to be angling for a fight with Six Flags Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his season pass expenditure.”
“Park operations require [seven to fourteen days’] lead-time to understand and process the service request, contact a sign language contractor, schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.”
“Same day service for a rare request is not a reasonable accommodation.”
Minnick’s testimony goes to the ultimate issues of law
As a preliminary matter, Defendants have shown that Minnick is at least minimally ‘qualified as an expert’ under Rule 702 based on his experience and knowledge regarding ADA compliance and accessibility in theme parks and other businesses from 2002 until today, despite his lack of ‘granular’ experience.
To begin, opinions (1) and (5)—that there is no “evidence of discrimination by the Defendant” and that same-day interpretive services are not reasonable—are “inappropriate subjects for expert testimony.”
Minnick offered legal conclusions—that there was no discrimination and offering same-day ASL interpretive service is not reasonable. The Court held that his testimony inappropriately goes to the ultimate issues of law and is therefore inadmissible.
Nor would opinions (1) and (5) “help the trier of fact to understand the evidence or to determine a fact in issue.” As described in his report, opinions (1) and (5) are based on Minnick’s review of discovery production and evidence in this case, including depositions, responses to interrogatories, and pleadings.
He does not explain how he used his expertise to evaluate that evidence. For that reason, it is unclear what helpful testimony Minnick could provide that is outside “the common knowledge of the average layman.”
Minnick’s opinions are properly for the trier of fact
Next, opinions (2) and (3) are about another person’s state of mind. Questions of state of mind are properly for the trier of fact.
The Court held that Minnick therefore cannot testify at trial “that a seasonal employee such as Mercedes Wilson in the Six Flags Operations Office would be confused about the range of service offerings for the deaf or hard of hearing.”
Nor may Minnick testify at trial that Plaintiff “appears to be angling for a fight with Six Flags Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his season pass expenditure.”
Minnick provided no analysis on how rare the requests for ASL interpreters are—for example, on average, how many requests do Defendants receive per week, month, or even year? Nor did he explain or know how much time it would take to find an ASL interpreter in the area, such that same day requests or requests made less than seven days in advance cannot be reasonably honored. In conclusion, Opinion (2) also lacked any analytical foundation.
Minnick did not explain the basis of his opinion or what method he used to reach it
What remains, then is opinion (4), i.e., that “[p]ark operations require [seven to fourteen days’] lead-time to understand and process the service request, contact a sign language contractor, schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.” Minnick did not explain the basis of this opinion or what method he used to reach it. He did not describe any research. Nor did he know how many days it took for an average or typical amusement park, let alone these particular Defendants, to obtain an in-person sign language interpreter or even an interpreter via the use of Video Remote Interpreting services. Nor did he testify about the industry standards for the amount of time needed to honor requests for ASL interpreters.
Instead, he explained that Disney, his former employer, “asks for two-week notice” because that particular theme park attracts a lot of international guests, and it would take time to find appropriate foreign language sign language interpreters—for example, a British sign language interpreter or a Chinese sign language interpreter.
He also testified vaguely at his deposition that the relevant standard “depends,” and he said theme parks “need to establish their policy . . . based on availability of services around the park.” Although he states different theme parks have different policies “based on their experience,” he does not appear to know what Defendants’ experience is and why Defendants’ policies are reasonable, if they are, in light of those experiences.
Held
The Court granted Plaintiff’s motion in limine to exclude Robert F. Minnick’s expert testimony.
Key Takeaways:
An expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law. Expert testimony that consists of legal conclusions is unhelpful and inadmissible. Robert Minnick’s testimony-that there was no discrimination and offering same-day ASL interpretive service is not reasonable-inappropriately goes to the ultimate issues of law and is therefore inadmissible.
Minnick’s opinions about there being no discrimination would not help the trier of fact to understand the evidence or to determine a fact in issue. His opinions are based on his review of discovery production and evidence in this case, including depositions, responses to interrogatories, and pleadings. He does not explain how he used his expertise to evaluate that evidence.
Minnick’s opinion that requests for ASL interpreters are very rare at Six Flags Discovery Kingdom lacked analytical foundation. He provided no analysis on how rare the requests for ASL interpreters are—for example, on average, how many requests do Defendants receive per week, month, or even year? Nor did he explain or know how much time it would take to find an ASL interpreter in the area, such that same day requests or requests made less than seven days in advance cannot be reasonably honored.
The Plaintiff, William Austin, III, sustained injuries while disembarking from the dredging vessel W308 RS WEEKS (the “vessel”). The Plaintiff alleged that, during his course of employment with Sontheimer Offshore/Catering Co. and Weeks (collectively, the Defendants), he suffered severe and permanently disabling injuries. The Plaintiff contends that the Defendants were negligent in various aspects, including failure to properly supervise, direct, and control operations, provide or utilize safe equipment, offer adequate assistance, ensure safe egress from the vessel, give adequate warning of known dangers, and provide a safe working environment. Under the Jones Act, the Plaintiff claims that Weeks had a duty to furnish a safe workplace, a competent and adequate crew, safe gear, equipment, and a seaworthy vessel. The Plaintiff argues that Weeks’ alleged failures, coupled with the unseaworthiness of the vessel, were the proximate causes of his injuries.
On December 19, 2023, Weeks filed a Daubert motion seeking to exclude testimony from the Plaintiff’s maritime safety expert, Robert E. Borison. Weeks asserted that Borison’s testimony was unhelpful, conclusory, and usurped the role of the factfinder. On December 26, 2023, the Plaintiff provided Weeks with a supplemental report from Borison. In response, Weeks filed another motion aiming to exclude Borison’s supplementary report. Weeks contended that the Plaintiff submitted the supplemental report because they acknowledged that Borison’s initial report contained opinions that did not meet the requirements of Federal Rule of Evidence 702. Weeks argued that the information in the supplemental report was available to Borison when the original report was prepared, and it would be impermissible to use this information to undermine Weeks’s Daubert motion. Additionally, Weeks contended that the report should be excluded as it allegedly violated the Court’s scheduling order.
In response, the Plaintiff argued that Borison was qualified to testify and would offer testimony that is both helpful and non-conclusory regarding safety policies. The Plaintiff also contended that Borison’s supplemental report should not be excluded despite its untimeliness. The Plaintiff explained that the delay was a result of the Defendants’ procrastination in producing the vessel’s captain for a deposition and the Plaintiff’s difficulties in locating specific photographs. Furthermore, the Plaintiff asserted that none of the “new” information in the supplemental report was unknown to Weeks, thereby causing no prejudice to them.
On December 27, 2023, Weeks requested an extension of its expert report deadline until January 8, 2024, to allow time for supplementing its expert report if deemed necessary after reviewing Borison’s supplemental report. The Plaintiff did not oppose this extension request, and the Court granted Weeks’ motion for an extension.
Safety Expert Witness
Robert E. Borison possesses over 50 years of safety experience in industries related to the exploration, production, and transport of oil and gas, as well as the marine, general, and commercial sectors. His expertise encompasses safety issues across various settings, including production platforms, barges, structural and fabrication yards, as well as vessels/boats, commercial and industrial buildings, and building projects. Borison obtained his degree in Business Administration from Louisiana State University. He currently serves as the President of Total Safety Services, Inc.
Discussion by the Court
Weeks contested the relevance of Borison’s proposed testimony under Rule 702, asserting that his opinions pertained to common-sense matters unrelated to his expertise. Weeks argued that Borison’s opinions encroached upon the factfinder’s role and included impermissible conclusions of law.
Weeks contended that Borison’s testimony was unnecessary and unhelpful, asserting that it delved into common-sense matters that did not necessitate expert testimony and usurped the factfinder’s role. In response, the Plaintiff argued that Borison’s extensive experience, with testimony in over eighty-five cases related to maritime safety, qualified him to educate the jury on relevant rules, regulations, and acceptable practices pertinent to the case.
The U.S. Fifth Circuit Court of Appeals has outlined that expert testimony ought to be excluded when the jury can effectively assess a situation through common experience and knowledge, as stated in Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir.1990). The primary consideration for the Court is whether the expert testimony consists of conclusions derived from common sense or serves to explain technical issues that aid the jury in understanding the relevant facts of the case.
Weeks relied on a precedent where another section of the Court concluded that Borison could not testify because his opinion didn’t require or utilize any expertise, and it wouldn’t assist the jury in resolving any case issues. However, in the current case, Borison’s opinion, as outlined in his report, asserted that Weeks breached health and safety requirements by failing to provide a “safe means of access.” His opinion clarified that a ladder should have been supplied as a secure method of disembarking the vessel. Defining what constitutes a “safe means of access” in accordance with maritime safety standards and the maritime industry is not a matter of common sense the Court was readily familiar with. Borison’s specialized knowledge and experience in marine safety were asserted to be crucial in illuminating this specific issue.
Subsequently, Weeks contended that Borison’s report lacked thorough analysis as it did not consider whether the water taxi captain should have assigned a deckhand to assist the Plaintiff during the transfer and did not assess the feasibility and safety of repositioning the tug closest to the vessel’s bow ladders. The Court observed that this challenge pertained to the foundation and source of Borison’s opinion, suggesting that it should be addressed through cross-examination rather than exclusion.
Weeks additionally asserted that Borison’s opinions went beyond factual analysis and ventured into offering legal conclusions, thereby impinging on the factfinder’s ability to draw its own conclusions. Weeks referenced Rule 704(a), which stipulates that testimony in the form of an opinion or inference, otherwise admissible, is not objectionable because it addresses an ultimate issue for the trier of fact. However, Weeks argued that Fifth Circuit case law makes it clear that Rule 704(a) does not permit a witness to provide legal conclusions, citing Shawler v. Big Valley, L.L.C., 728 F. App’x 391 (5th Cir. 2018).
Weeks argued that Borison’s statements, asserting that supervisors “failed to install, or request to install, a gangway” and that captains should have provided specific instructions, were improper conclusions. However, these statements did not constitute legal conclusions regarding Weeks’ negligence. The Court found that that Borison’s testimony was permissible as he did not offer opinions on unseaworthiness, negligence, or causation.
The Court was not persuaded that Borison had crossed the line by providing legal conclusions. The Court held that Borison offered expert opinion testimony that could potentially assist the jury in determining the ultimate legal question, specifically, legal fault. The Court acknowledged that the admissibility of such testimony depended on how the actual questions and answers were framed during the trial, as it could be either objectionable or not in specific circumstances. The Court indicated that it would be better positioned during the trial to assess whether Borison genuinely reached legal conclusions that fall within the jury’s purview or if he instead presented admissible opinions intended to suggest a particular legal conclusion.
As previously mentioned, Weeks sought to strike Borison’s supplemental report. Weeks argued that the supplemental report should be stricken due to procedural violations, untimeliness, and the perceived unnecessary nature of the additional opinions.
Weeks contended that it was procedurally impermissible for the Plaintiff to attempt to address the issues raised in Weeks’ Daubert motion through a supplemental report. Since the Court had previously addressed Weeks’ motion to exclude and deemed Borison’s original conclusions admissible, the Court did not have to consider this argument as the supplemental report does not remedy the alleged defects in the original report.
Weeks argued that the supplemental report introduced new opinions based on evidence previously available to Borison, characterizing it as an impermissible attempt for a “second bite at the apple” to offer opinions complying with Federal Rule of Evidence 702. Weeks contended that the supplemental report violated the case management order and should be excluded. In response, the Plaintiff argued that the delay in the supplemental report was due to defense counsel’s tardiness in producing Captain Isaac Martinez (“Captain Martinez”) for a deposition and the Plaintiff’s difficulty in locating photographs that he took of the scene. The Plaintiff further asserted that there was no prejudice or unfair surprise to Weeks regarding the information presented in the supplemental report.
Contrary to Weeks’ claim that exclusion is mandatory, the decision to admit or exclude evidence produced in violation of the Court’s scheduling order is within the Court’s broad discretion. In exercising this discretion, the Court takes into account several factors, including the importance of the evidence, the prejudice to the opposing party of including the evidence, the potential for curing such prejudice through a continuance, and the explanation provided for the party’s failure to disclose.
Concerning the first factor, the Plaintiff clarified that the supplemental report incorporated photographs taken by the Plaintiff at the scene and details obtained during Captain Martinez’s depositions regarding responsibility for methods of transferring personnel on and off the dredge. The Plaintiff asserted that Borison’s testimony would significantly assist in explaining safety statutes, industry guidelines, and Weeks’s safety rules to the jury. However, the Plaintiff did not explicitly elaborate on how the information in the supplemental report was crucial to the case. As a result, this factor did not weigh in either direction.
Regarding the second and third factors, Weeks argued that the supplementation of the report would cause prejudice, but failed to specify any particular harm beyond the timing issue of its expert report being due one day after receiving the supplemental report. However, Weeks later requested a ten-day extension to produce a supplemental expert report if deemed necessary after reviewing Borison’s supplemental report. The Court granted this extension, thereby remedying any identified prejudice, and no further continuance was sought or deemed necessary.
Regarding the fourth factor, the Plaintiff clarified that the delayed disclosure was attributed to the postponed deposition of Captain Martinez and the Plaintiff’s challenges in locating photographs of the accident scene. While Plaintiff did not take Captain Martinez’s deposition until after the original report, the Plaintiff had possession of the accident photographs throughout the entire period as they were found on an old mobile phone that proved challenging to locate. The Plaintiff explained that some of the information was available at the time of the initial report, while some was not. Consequently, this factor did not strongly favor either direction.
Upon evaluating the four factors discussed earlier, the Court concluded that excluding the supplemental report was inappropriate. This decision was based on the limited prejudice to Weeks and the possibility of remedying any identified prejudice by allowing Weeks to submit its own supplemental report.
Held
The Court denied Weeks’ Daubert motion to exclude Borison’s testimony. Additionally, the Court also denied Weeks’ motion to strike Borison’s supplemental report. 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 legal proceedings involving the injuries sustained by the Plaintiff while disembarking from the dredging vessel, the Court addressed Weeks’ motions to exclude testimony from the Plaintiff’s maritime safety expert, Robert E. Borison, and to strike Borison’s supplemental report. Weeks argued that Borison’s testimony was unhelpful and conclusory, and the supplemental report was procedurally flawed, untimely, and contained unnecessary opinions. However, the Court denied both motions, ruling that exclusion was inappropriate. The Court emphasized the importance of its discretion in such matters and considered factors such as the importance of the evidence, prejudice to the opposing party, the possibility of curing such prejudice, and the explanation for the delayed disclosure. While Weeks claimed potential prejudice, the Court found it to be limited, and any identified issues were remedied by granting Weeks an extension to submit its own supplemental report. Overall, the Court determined that excluding Borison’s testimony and the supplemental report was not warranted, allowing for a comprehensive presentation of expert evidence during the trial.
This case involved a lawsuit filed by the Plaintiff Daniel G. Mann against Defendant Quiktrip Corporation for negligence related to a slip and fall incident. On July 20, 2022, the Plaintiff initiated legal proceedings by filing a Petition in the Circuit Court of St. Louis County. The complaint alleged common law negligence against Quiktrip in connection to an incident on February 17, 2021, when Mann fell on a Quiktrip property in Maryland Heights, Missouri. Subsequently, on October 4, 2022, Quiktrip exercised its right to remove the case to the federal Court, citing diversity jurisdiction under 28 U.S.C. § 1441. Following this, on December 14, 2022, the Plaintiff filed a Consent Motion for Leave to File a First Amended Complaint, which was granted by the Court. In accordance with the granted motion, Plaintiff’s First Amended Complaint focused on a single cause of action, asserting negligence against Quiktrip. The basis for this claim was rooted in premises liability, specifically related to the Plaintiff’s fall on February 17, 2021.
Quiktrip initiated a motion to exclude the expert report, testimony, and opinions of the Plaintiff’s designated expert, Christopher E. Janson, a Certified Safety Professional with over thirty years of experience in safety, intended to provide a safety analysis to determine if there were conditions deemed defective or unreasonably dangerous.
In his report, Janson outlined several general opinions:
1. On the morning of February 17, 2021, QuikTrip employee Tommy Burrow attempted to clear snow and ice from the exterior steps and sidewalk and put down ice melt on the morning of the incident before 8:15 am.
2. QuikTrip had established policies and procedures for maintaining outdoor areas, including inspecting them for snow and ice conditions.
3. QuikTrip’s policies and procedures seemed to align with recognized standards for identifying and controlling slip and fall hazards.
4. Surveillance video footage for the relevant day did not show a QuikTrip employee inspecting the steps in question for at least one hour before Mann’s fall, despite documentation suggesting otherwise.
5. QuikTrip allegedly failed to adhere to its policies and procedures by not ensuring the inspection of the steps and associated landings.
6. If QuikTrip had performed the required upkeep walks as per its policies and procedures, Mann’s fall could have been prevented.
7. Mann’s fall was attributed to the unreasonably dangerous condition of the steps as maintained by QuikTrip.
Quiktrip presented two main arguments for the exclusion of Janson’s report, testimony, and opinions. Firstly, Quiktrip contended that Janson’s opinions lacked reliability in their principles and methods. Quiktrip asserted that the initial four opinions are factual statements, while the remaining three opinions did not possess a scientific or technical basis and would not provide the jury with insights beyond their own evaluation of the evidence. Quiktrip supported this argument by referencing the case Hall v. Target Corp., 8:22-cv-0914-KKM-AAS (M.D. Fla. July 21, 2023) where the Court excluded a majority of Janson’s opinions, deeming them speculative, not grounded in proper methodology, and surpassing industry standards. Secondly, Quiktrip argued for the exclusion of Janson’s opinions on the basis that they encroach upon the jury’s role and are generally speculative. Quiktrip maintained that the opinions in question are inadmissible as the jury can adequately weigh the evidence without the assistance of an expert.
The Plaintiff contended that Quiktrip’s motion to exclude expert testimony under Federal Rule of Evidence 702 should be denied, emphasizing that the admission of such testimony is permissive. In response to Quiktrip’s assertion that Janson’s opinions lacked reliable scientific principles and methods, the Plaintiff argued that the first four opinions were based on Janson’s knowledge, information, and experience applied to the case’s evidence, without directly addressing the reliability issue. Additionally, the Plaintiff argued that Janson’s remaining opinions were appropriate as they would assist the jury in understanding Quiktrip’s policies and procedures, particularly the alleged violations. The Plaintiff pointed to conflicting testimony from Quiktrip’s employees, suggesting confusion about the policies, and asserts that experts are permitted to testify on policy violations. Finally, the Plaintiff contended that Janson’s testimony, even if addressing the ultimate issue in the case, should be allowed as it aids the jury in its deliberations. The Plaintiff also contended that rules, standards, or training materials of a Corporate Defendant were invariably admissible. However, the Court emphasized that the admissibility of Janson’s testimony concerning those procedures was not necessarily influenced by the admissibility of such corporate documents.
Safety Expert Witness
Christopher E. Janson has over 30 years of experience as a safety professional. He holds a Bachelor of Science degree in Industrial Science from Truman State University and a Master of Science degree in Industrial Safety Management from the University of Central Missouri. Janson is a Certified Safety Professional (CSP). He is currently the Principal of Haines, Janson & Associates, LLC, which provides forensic and safety consulting services to attorneys, industry and insurance companies.
Discussions by the Court
The Court determines that the Plaintiff has not successfully demonstrated, by a preponderance of the evidence, the admissibility of Janson’s expert opinions. The Court’s assessment is that Janson’s opinions either consist of straightforward statements of fact, speculative conclusions lacking proper methodological support, or are otherwise deemed irrelevant and, consequently, not beneficial to the jury.
The Court deemed Janson’s opinions 1, 2, and 4 as mere statements of fact, making them impermissible as expert opinions. The determination of whether Burrow cleared the steps and applied snow melt, as well as Quiktrip’s policies and procedures for upkeep walks, could be established through other admissible evidence or by the policies and procedures themselves. The surveillance video itself provided insights into whether a Quiktrip employee inspected the area before the Plaintiff’s fall. The Court noted that the facts in question, including Burrow’s actions, Quiktrip’s policies, and the content of surveillance video footage, did not require expert testimony to be established. Drawing a parallel to the Hall case, the Court asserted that, akin to that precedent, Janson’s opinions concerning these factual matters should be excluded.
The Court found that the Plaintiff’s attempt to draw parallels between Janson’s opinions and those permitted in the Hall case was not persuasive. In Hall, Janson’s testimony was limited to statements such as “wet floors can be a slip and fall hazard” and “while walking, pedestrians look towards their objective, not directly in front of their feet, unless something draws their attention to that area.” These opinions were deemed acceptable as they pertained to industry standards of care. However, the Court noted that Janson’s report in the present case lacked similar opinions, and the Plaintiff did not successfully demonstrated how the opinions in Hall were comparable to those in question. As the Plaintiff has not established, by a preponderance of evidence, that these opinions did indeed necessitate Janson’s expert testimony, Opinions 1, 2, and 4 were deemed to be excluded.
The Court acknowledges that Opinion 3, though potentially an opinion, lacked demonstrated relevance to the issues in the case. While it is considered appropriate for a safety expert to testify on recognized standards for identifying and controlling slip and fall hazards, the Court concluded that whether Quiktrip’s policies and procedures met such standards did not have a bearing on the company’s potential liability in this negligence action. Consequently, the Court deemed the opinion inadmissible, subject to reconsideration.
The Court determined that Opinion 5 was not the type of opinion necessitating expert testimony. The jury was deemed capable of evaluating the presented evidence and deciding whether Quiktrip adhered to its own policies and procedures regarding the inspection of the steps. The Plaintiff’s argument suggesting the need for an expert due to alleged confusion in Quiktrip’s policies was deemed unconvincing. The Court asserted that the conflicting deposition testimony cited by the Plaintiff was evidence that could be presented directly to the jury, requiring no expert assistance for evaluation, as it did not involve scientific or technical knowledge. Similar to the discussion on Opinion 3, the Court was not persuaded that the issue of whether Quiktrip violated its upkeep walk procedures was relevant to the ultimate issue in the case. Consequently, Janson’s Opinion 5 was also excluded.
The Court concluded that Opinions 6 and 7 were speculative, lacking an explanation of the principles or methodology used by Janson to formulate them. Janson’s report failed to elucidate any scientific or technical basis for his opinion that a proper upkeep walk would have prevented the Plaintiff’s fall, as well as the assertion that the fall was caused by an unreasonably dangerous condition of the steps. The Plaintiff had not presented evidence demonstrating that Janson employed recognized principles or methodologies to derive these speculative conclusions. Consequently, as the Plaintiff had not established by a preponderance of evidence that Janson’s opinions relied on reliable principles and methods, Opinions 6 and 7 were also excluded.
Held
The Court granted Quiktrip Corporation’s Motion to Exclude the Expert Report, Testimony, and Opinions of Christopher E. Janson. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
The Court found that Janson’s opinions lacked reliability, with some being considered as simple statements of fact that did not require expert testimony. Additionally, opinions deemed speculative and lacking a clear scientific or technical basis were excluded. The Court emphasized that Janson’s opinions failed to provide insights beyond what the jury could determine through available evidence, and some were deemed irrelevant to the issues in the case. Ultimately, the Court ruled that Janson’s entire report, testimony, and opinions would be excluded, granting Quiktrip’s motion in this regard. This decision underscores the importance of establishing the relevance, reliability, and necessity of expert opinions in legal proceedings to ensure their admissibility.
