On September 30, 2021 at approximately 4:14 p.m., Defendant Marcus D. Jethrow, was operating a 2021 Volvo 760 tractor-trailer owned by Defendant Keep Trucking, LLC (Defendant Keep Trucking) traveling northbound on US 61 Hwy in Marion County, Missouri. At the same time, Keith Triplett (decedent) was operating a 1988 International Harvester grain hauler traveling east on County Road 338 in the process of crossing US 61 Hwy. The vehicles collided, and Triplett died as a result.
Triplett’s wife asserted claims of negligence in hiring, training, supervising, retaining, and entrusting Jethrow against Defendant Keep Trucking.
Plaintiffs asked the Court to exclude the testimony of the Defendants’ retained accident reconstruction expert witness, Kevin T. Johnson, for both Rule 26(a)(2)(B) and Daubert reasons.
Accident Reconstruction Expert Witness
Kevin Turner Johnson is accredited by A.C.T.A.R., the Accreditation Commission for Traffic Accident Reconstruction, testifies as an expert witness, and trains others in the accident reconstruction community. His 10 years of law enforcement experience, which included over 500 collisions investigated on-scene, lends additional perspective to collision analysis and police investigations.
First, Plaintiffs alleged that Johnson performed an avoidability calculation of what would have occurred if Jethrow had been traveling at exactly the posted speed limit of 65 m.p.h. and then suppressed it, not complying with required disclosures in Rule 26(a)(2)(B).
Johnson analyzed multiple data points to reach his conclusions in this case which would include but are not limited to: physical evidence on the roadway, damage patterns, distances traveled, electronic data from the vehicle showing speeds and braking, and the video of the collision and the event prior thereto.
Johnson’s report contained his analysis of available data and after performing accident reconstruction calculations, determined that Defendant Jethrow’s speed did not cause the accident. Plaintiffs presented no evidence that Johnson or Defendants suppressed anything here or that they did not comply with required disclosures in Rule 26(a)(2)(B). Therefore, the Court refused to exclude his opinion on Plaintiffs’ first point of argument.
Plaintiffs also took issue with the perception-response time analysis done and the traffic standards applied. Johnson focused his reconstruction analysis on a moment in time that the decedent was a hazard — i.e. when he was in the median failing to yield. Plaintiffs’ expert, meanwhile, focused his reconstruction analysis on a ten second window prior to the collision. Just because these analyses are different, the Court held that challenges to the factual basis of Johnson’s testimony go to credibility and the weight of the testimony which are subjects that may be raised during cross-examination.
Held
The Court denied Plaintiff’s motion to exclude the testimony of Defendants’ expert Kevin Johnson.
Key Takeaway
Challenges to the factual basis of Johnson’s testimony go to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.
Case Details:
Case Caption:
Triplett V. Keep Trucking, LLC
Docket Number:
2:25cv1
Court Name:
United States District Court for the Eastern District of Missouri, Northern Division
Plaintiff Judith Bean alleged that this action arose from a February 28, 2023, trip-and-fall incident at Walmart Supercenter Facility #5686, located at 1301 N. Victory Place, Burbank, California, and asserted causes of action for negligence and premises liability.
Walmart filed a motion in limine to preclude Plaintiff’s expert witnesses, Alex J. Balian and Kuba Glazek, Ph.D., from testifying about certain topics. Plaintiff filed a motion in limine to exclude improper opinions by Walmart’s rebuttal safety expert, Michael V. Nichols.
Retail Store Expert Witness
Alex J. Balian has been in the retail industry as an owner, operator, and consultant for more than 65 years.
He has testified as a safety and operations expert in all areas of retail store operations and public facilities involving supermarkets, commercial buildings, restaurants, warehouse facilities, home improvement stores and specialty stores for more than thirty years.
He has qualified as a retail safety expert and given expert testimony in state and federal courts in matters pertaining to retail operations throughout the United States.
Kuba J. Glazek has a Ph.D. in Brain and Cognitive Sciences. He has researched, published, presented, and consulted on human factors since 2006 and has applied his background in human cognition and scientific methods to analyze a variety of legal cases, including but not limited to premises, transportation, construction, industrial, products, sports, dram shop, and warnings cases.
Michael V. Nichols has a Bachelor of Science in Occupational Health & Safety, along with ample experience in retail security and safety. He has been practicing as a Safety Consultant since 1992, conducting safety inspections and consulting on liability and workers’ compensation.
Nichols also taught Accident Investigation, Cal-OSHA Law, and Workers’ Compensation at Cal State Dominguez Hills University for fifteen (15) years. As a safety expert witness, he has testified over 130 times and given more than 1300 depositions since 1992.
First, Walmart argued that Balian, a “retail-safety” expert, cannot offer opinions regarding “human factors” because he has no expertise in that field.
Second, Walmart argued that Balian cannot offer opinions regarding prior incidents because his deposition testimony shows that he did not study the prior incidents to verify whether they were substantially similar and therefore probative.
Third, Walmart argued that Balian should be precluded from testifying that Walmart engaged in a “conscious and wanton disregard” for Plaintiff’s safety because he admitted at his deposition that he used the term in a non-legal way.
Finally, Walmart’s notice of the motion in limine further sought to exclude Plaintiff’s human factors expert, Kuba Glazek, Ph.D., on the ground that his testimony is unnecessary.
II. Plaintiff’s MIL No. 4
Plaintiff sought to exclude certain testimony by Walmart’s rebuttal retail safety expert, Michael V. Nichols, on the grounds that his opinions are beyond his designation as a rebuttal expert and/or are inadmissible credibility, advocacy, legal conclusion, and factual determination conclusions that invade the province of the jury or attempt to contradict Walmart’s binding admissions.
The Court’s Analysis
The Court found that a considerable amount of the content in Balian’s report, Glazek’s report, and Nichols’ rebuttal report will be inadmissible testimony at trial as improper legal conclusions or determinations that invade the province of the jury.
Accordingly, the Court will not permit any expert witness for either party to testify as to their conclusions regarding issues for the jury to decide, including: whether the stackbase at issue was “unsafe,” a “trip hazard,” a “dangerous condition,” or below industry safety standards; whether Walmart’s policies and/or training was adequate or met industry standards/a standard of care or whether Walmart employees could have prevented the incident.
Given that the Court found much of what Walmart objected to in Balian’s report and what Plaintiff objected to in Nichols’ report improper for reasons other than the reasons underlying the motions in limine, the Court need not specifically rule on each of the grounds in the respective motions in limine.
To the extent that Walmart sought to exclude Glazek from testifying as to human factors on the grounds that his testimony is unnecessary and cumulative, the Court denied Walmart’s motion. Glazek may provide testimony based on his specialized knowledge, such as to limits on visual perception, human behavior, etc., that would be helpful to the jury to interpret the evidence. But Glazek may not interpret the evidence for the jury. To the extent that Plaintiff sought to exclude Nichols’ testimony as outside of the scope of rebuttal, the Court denied Plaintiff’s motion at this time. Plaintiff may raise such an objection to specific testimony at trial.
Held
The Court denied Walmart’s fourth motion in limine to preclude certain testimony by Alex Balian and Kuba Glazek as well as Plaintiff’s fourth motion in limine to exclude certain testimony by Michael Nichols.
Key Takeaway
To avoid expert witnesses invading the province of the jury, the Court does not permit expert witnesses to interpret the factual evidence in this case. Instead, expert witnesses may testify about industry standards, customs, best practices, and norms, and specialized knowledge relating to relevant topics.
Expert witnesses may be asked hypothetical questions to elicit expert opinions on the aforementioned topics but may not be asked to make conclusions about the facts or evidence of the instant case, as these are issues for the jury to decide.
Case Details:
Case Caption:
Judith Bean V. Walmart Inc.
Docket Number:
2:24cv8871
Court Name:
United States District Court for the Central District of California
Plaintiff was a guest at Defendant’s beachfront hotel in Miramar Beach over the Fourth of July holiday weekend in 2024. Defendant owned the dry sand portion of the beach in front of the hotel, and it rented chairs and other concessions to hotel guests using the beach.
On the morning of July 6, Plaintiff entered the water of what is now known as the Gulf of America from the hotel’s private beach despite seeing a yellow flag warning beachgoers to exercise caution in the water due to the presence of “moderate surf and/or currents.” Plaintiff went out to hip-deep water, and after 10 to 15 minutes, she exited the water without any issue.
After lunch, Plaintiff re-entered the water despite noticing that there were more waves than there were in the morning. Plaintiff went further out into the water than she did in the morning, but when the weather started to worsen and the water became more turbulent and “murky,” Plaintiff decided to head back to the beach.
While heading back, Plaintiff allegedly got stuck in an “underwater trench” that was at least waist-deep. While Plaintiff was stuck in the trench, she was allegedly hit by a wave that knocked her forward and caused her to strike her head on an adjacent nearshore sandbar with such force that she suffered a severe cervical spine injury that rendered her quadriplegic.
Defendant filed Daubert motions to limit or exclude the testimony of two of Plaintiff’s experts, John Fletemeyer, Ed.D., and Gary Deel, Ph.D.
Aquatic Safety Expert Witness
John Robert Fletemeyer, Ed.D. has been continuously and professionally involved in aquatic safety for more than 50 years and have acquired several professional certifications including instructor certifications from the American Red Cross (First Responder, BLS, CPR and AED Instructor), YMCA of the USA Lifeguard Instructor, World Lifesaving Training Officer, licensed EMT, NAUI Instructor, PADI instructor, USLA Certification Accreditation officer, and Swift Water Rescue Specialist.
He has been awarded several postgraduate degrees including graduate degrees from the University of Wisconsin (M.A.), University of Cape Town (M.S. Honors) and Florida International University (Ed.D). He has held teaching and research positions at Broward College, Nova University and Florida International University.
Fletemeyer has been retained in over 500 criminal and civil cases involving drowning and serious aquatic incidents.
Gary Lee Deel spent ten years in professional work within the hospitality industry, including hotels, motels, resorts, restaurants, amusement parks, attractions, casinos, golf courses, dayclubs, nightclubs, meetings and events, and other aspects of the industry which are commonly integral to hotel and resort operations.
He has also spent more than 16 years teaching hospitality management for various hospitality schools including the UCF Rosen College of Hospitality Management, the UF Tourism and Hospitality School, and the UNLV Harrah Hotel College.
Fletemeyer’s expert report broadly opined that Defendant was “grossly negligent for not providing guests with any comprehensive and effective beach safety program that prevents foreseeable injuries and drowning/near drownings from occurring.”
1. Qualification
Defendant argued that Fletemeyer is unqualified to opine on “offshore hydrodynamics, sandbar-formation science, and the design, staffing, and operation of professional open-water rescue systems.” The Court agreed in part.
Fletemeyer did not appear to be qualified in the areas of “hydrodynamics” or “sandbar-formation science,” and Plaintiff represents he will not offer opinions on those issues. Thus, consistent with that representation, Fletemeyer may not opine on how certain underwater terrain and features—such as underwater trenches and sandbars—are formed. Nor may he opine on the science of how water and wave forces interact with the human body.
That, however, did not preclude Fletemeyer from testifying about the risks posed by aquatic conditions like trenches and nearshore sandbars. Indeed, Fletemeyer’s extensive experience—which includes work as a beach patrol supervisor and beach patrol chief for about 28 years with over 50,000 hours supervising beaches and observing hazardous water conditions, along with work as a consultant for over 30 government and private entities (including other Hilton hotels) investigating aquatic injuries and evaluating aquatic safety programs—more than adequately qualifies him to offer opinions about aquatic safety issues and trench/sandbar risks on Florida beaches.
Fletemeyer is also qualified to opine on “professional open-water rescue systems” because, as Defendant acknowledged, Fletemeyer’s “background is strongest in lifeguard operations, beach-safety education, and drowning-prevention advocacy.” Moreover, Fletemeyer has worked with “several hotels” to conduct aquatic safety audits and train staff. Thus, contrary to Defendant’s argument, Fletemeyer is adequately qualified to opine on matters pertaining to the design and implementation of open-water rescue systems.
2. Reliability
Defendant argued that Fletemeyer’s opinions are unreliable because they are primarily based only on his own experience and research. For the most part, the Court disagreed.
Fletemeyer is entitled to rely on his experience, and that experience includes designing aquatic safety programs “consistent with the standards at other resorts,” which include “multiple, coordinated layers of hazard identification, guest education, staff training, and emergency planning specifically directed at the nearshore trench/sandbar hazard and its associated injury risks.”
The Court did not overlook Defendant’s argument that Fletemeyer “relied almost entirely on his own experience … and own 1999 book” rather than invoking a “recognized risk-assessment framework, coastal-engineering protocol, or specific industry standard for beachfront hotels in Florida.”
However, putting aside the fact that an expert can rely on his own experience and that his book is published in a peer-reviewed press, Fletemeyer did refer to industry standards when he discussed how he evaluated Defendant’s aquatic safety programs against the “commonly adopted practices” at comparable resorts.
The Court also did not overlook Defendant’s argument that Fletemeyer failed to conduct “tests, measurements, or quantitative analysis” as to the Gulf’s forces that day or the sandbar, but such analysis is not required for Fletemeyer’s experience-based testimony.
However, the Court agreed with Defendant that Fletemeyer provided no reliable basis for his opinion that the proposed safety measures would have prevented Plaintiff from being injured by the sandbar or made her injury less likely. Nor did he explain how his experience led to his conclusion.
3. Helpfulness
Defendant argued that some of Fletemeyer’s opinions are unhelpful because they are impermissible legal conclusions and invade the province of the jury. The Court agreed in part.
Here, Defendant argued that some of Fletemeyer’s opinions—such as his opinions that Defendant was “negligent” or “grossly negligent” and that Plaintiff’s injury occurred in an area that Defendant had a “duty” for guest safety—are impermissible legal conclusions.
The Court agreed. Thus, Fletemeyer will not be permitted to couch his opinions in that manner.
Defendant also argued that some of Fletemeyer’s opinions improperly commented on witness credibility and usurped the role of the jury. Plaintiff conceded that Fletemeyer’s “characterization” of certain testimony as “questionable” and “his inference that [Defendant] ‘failed to take notice’” of the hazards are “immaterial remarks.”
Gary Deel
Deel is a hospitality operations, safety, and risk management professional and academic. His expert report includes three main opinions, which were more succinctly summarized in his affidavit as follows:
[Defendant] had a responsibility to ensure a reasonably safe environment for guests entering the Gulf and failed to meet this responsibility.
[Defendant] knew or should have known of the recurring danger of concealed trenches and sandbars, but it failed to warn guests adequately.
[Defendant] failed to implement reasonable safety measures and failed to investigate or remediate known hazards, demonstrating systemic safety-management failures.
1. Qualification
Defendant challenged portions of Deel’s opinions by arguing that he is unqualified to opine on the “foreseeability of underwater trenches and sandbars,” the design of professional beach rescue programs that would have prevented the incident, and the “hydrodynamic effects of the underwater topography” because he lacks formal education or training in coastal science and open-water lifeguard operations. The Court agreed.
Deel spent ten years in the hospitality industry working in areas such as hotel operations, safety, security, and risk management, and he has spent sixteen years teaching those same subjects at various universities. That experience provided Deel sufficient qualifications to render opinions on hotel risk management practices, but Plaintiff has not shown that his experience qualifies him to render reliable opinions on the foreseeability or danger of underwater trenches/sandbars within the Gulf’s waters, rip-current formation, or open-water lifeguard operations.
On the latter point, although Deel supposedly relied on “aquatic-safety literature and beach-management practice” to opine that Defendant knew or should have known about the “specific and recurring danger of concealed underwater trenches and sandbars in the Gulf waters,” the “industry standards” he cited for that proposition did not mention that type of hazard.
That said, Deel is more than adequately qualified to opine about industry practices relating to risk identification and management. Thus, while he cannot testify as to the dangerousness of underwater trench and sandbar configurations, he may opine, for example, about whether Defendant complied with (or deviated from) industry standards when it did not “inspect the Gulf waters,” conduct a “risk assessment or safety inspection of its beach operations,” or have “established procedures governing guest safety in the water.”
2. Reliability
Defendant argued that Deel’s opinions are unreliable because they lacked a sound methodology and failed to identify industry standards.
Deel cited several standards for his methodology and explained that those standards, combined with his experience in the hospitality industry, require a systematic review of available data and a determination as to whether certain safety practices sufficiently mitigate known hazards.
Defendant did not critique those “process-oriented guidelines” about structuring investigations and conclusions; it merely argued that Deel’s opinions did not establish substantive hotel safety standards.
Deel is entitled to rely on his own experience so long as his methodology is sound, and it is here because he identified a methodology, cites specific “standards of care” from “authoritative sources” (that he knows from his experience in the industry), and evaluates whether Defendant’s risk management program was consistent with those standards.
The Court did not overlook Defendant’s argument that Deel did not identify a specific industry standard requiring a Florida beachfront hotel to survey underwater sandbars, monitor rip currents, and give hazard-specific warnings. However, the industry standards he cited required hotel operators to establish systematic processes of risk identification and management, including identifying water hazard risks, preparing emergency procedures, and warning guests of hazards. And, according to Deel, those standards apply to both pools and beaches. Thus, Deel reliably applied his methodology to reach his conclusions.
That said, the Court agreed with Defendant that Deel’s opinion that Plaintiff’s injury resulted from Defendant’s “systemic breakdown in safety management” and that had Defendant conformed with industry standards, the incident “more than likely could have been prevented” is ipse dixit because, like Fletemeyer’s causation opinion, there is a substantial analytical gap between the facts and conclusion offered.
3. Helpfulness
Defendant argued that some of Deel’s opinions are impermissible legal conclusions and unhelpful. The Court agreed in part.
Like Fletemeyer, Deel may not couch his opinions as impermissible legal conclusions or invade the province of the jury. Thus, Deel may not opine that Defendant, by commercially controlling the beach, had a “duty” to ensure a reasonably safe environment or how far that duty extended; that Defendant held “a legal right to use and control” the beach; or that Defendant “knew or should have known” about the underwater trench/sandbar hazard being foreseeable. However, as discussed above, he may opine—without phrasing his opinions as legal conclusions—on whether Defendant deviated or complied with industry risk management standards.
Defendant also argued that Deel’s opinions will be unhelpful to the jury because Florida hotels owe no duty to warn of naturally occurring conditions like rip currents and sandbars. But as was the case with Fletemeyer, to the extent Defendant is wrong about the law, Deel’s opinions will be helpful to the jury in determining whether Defendant breached the duty it owed to hotel guests like Plaintiff.
Held
The Court granted in part and denied in part Defendant’s Daubert motions to limit or exclude the testimony of Dr. John Fletemeyer and Dr. Gary Deel.
Key Takeaway
Fletemeyer merely asserted a conclusion and asked the Court to take his word for it based on his experience. That, however, is not enough because it is well established that “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” If admissibility could be established merely by the ipse dixit of an admittedly qualified expert, the reliability prong would be, for all practical purposes, subsumed by the qualification prong.
In this facially simple premises liability lawsuit, Plaintiff Stephanie Lewis sought to recover damages incurred when she tripped and fell on the front walkway of Samuel B. Heggie, Jr.’s home while she was delivering a pizza in February 2020. Samuel Heggie having died during the pendency of this lawsuit, the Plaintiff now proceeds against the Estate of Samuel B. Heggie, Jr., represented by Patrick Heggie as the Administrator ad Litem.
Plaintiff filed a motion in limine to exclude the testimony of Defendant’s liability expert, Brian Grieser, while the Defendant filed a motion in limine to exclude the testimony of Plaintiff’s expert, David Johnson.
Engineering Expert Witness
David Patrick Johnson P.E., CSP is a Licensed Professional Engineer in the State of Tennessee and a Certified Safety Professional. He has over 32 years of experience in safety engineering, including work involving walkway safety and sidewalks.
Brian C. Grieser P.E., C.P.S.M., CSP, CPE has extensive experience in conducting evaluations in a wide range of product, occupational, and premises projects involving litigation as well as proactive consulting. His assessments have included walkway slip resistance; recreational boat design; watercraft occupant safety; towed watersports safety; time and motion studies; work sampling; human vibration and acceleration exposure; sound measurement and analysis; and human movement, climbing, and stability analysis.
Grieser is a member of several professional societies including the Human Factors and Ergonomics Society, ASTM International, the Society of Naval Architects and Marine Engineers, the American Boat and Yacht Council, and USA Water Ski & Wake Sports.
It is undisputed that the Plaintiff tripped on a vertical displacement—i.e., a raised lip—of approximately 0.8 inches in the front walkway leading from Heggie’s driveway to the front door of Heggie’s house. It is also undisputed that Heggie was aware of the condition of the front walkway. The parties dispute whether the defect in the walkway (or sidewalk, as the parties refer to it) created an unreasonably dangerous condition.
David Johnson
A. The Parties’ Arguments
Johnson opined that the pedestrian falls on sidewalks are often the result of the failure of the property owner or other responsible person to maintain the sidewalk in a reasonably safe condition. According to Johnson, if cracks in sidewalks are greater than 1/4 inch, this can create a trip hazard because it is unexpected; if such variances are found, repairs should be made.
Johnson concluded that the walkway would be considered substandard and hazardous by ANSI and ASTM standards.
The Defendant characterized Johnson’s opinions as largely concerning matters of common sense dressed up with technical language, or “common experience gilded by the expert’s credentials.” As for reliability, the Defendant contended that (1) many of Johnson’s opinions consisted of verbatim quotations from insurance company websites that Johnson found doing a Google internet search that Johnson himself characterized as “doing some research on some different aspects of trip-and-fall cases” and (2) Johnson’s references to various “safety standards” and “codes” are unreliable, insofar as he admits that none of the standards he cites apply to single-family residences, and none has been adopted by any Tennessee court or Sumner County authority.
In response, the Plaintiff argued that Tennessee courts have held that whether a sidewalk is unsafe can be established by expert testimony.
B. Discussion
1. Relevance
Several of Johnson’s opinions are based on the failure of the walkway to meet various international standards and codes, including (1) the International Residential Code (“IRC”), which incorporates by reference the International Property Maintenance Code and had been adopted by Sumner County at the time of the incident; (2) the American Standards for Testing and Materials (ASTM) F 1637-2013 Standard Practice for Safe Walking; (3) the American National Standard Institute (“ANSI”) standard 1264.2-2006; (4) standards promulgated by the National Institute of Occupational Safety and Health (“NIOSH”); and (5) the International Code Council (ICC)/ANSI A117.1-2017-American National Standard for Accessible and Usable Buildings and Facilities.
In his deposition, Johnson conceded that the ANSI and NIOSH standards apply to workplaces, not residences. The ICC/ANSI standards to which he refers pertain to accommodations for persons with disabilities. These standards are irrelevant in this case, which involves a private residence, and Johnson’s reliance on them is misplaced and, moreover, will not assist the jury in determining whether the Defendant was negligent.
The Plaintiff contended that the IRC code has been adopted by Sumner County and so is clearly applicable. However, the standard contains nothing outside what the common law negligence standard of care establishes. An expert is not required to establish the common law negligence standard.
Finally, regarding the ASTM F 1637-2013 Standard Practice for Safe Walking, the plaintiff argues that the question of whether this standard has been adopted by Sumner County is irrelevant, because it is a national standard and provides a relevant guide for determining the reasonableness of the Defendant’s conduct in failing to repair the walkway. However, this is not a negligence per se case. The Court finds that this standard, too, is irrelevant to the question of whether the Defendant in this case exercised reasonable care.
2.Reliability
The Court found that Johnson’s opinions as a whole will not assist the jury in determining any fact at issue in this case. Moreover, insofar as he appears to have derived many of his opinions directly from insurance company websites, from which he quotes verbatim, and from a manual drafted by a lawyer and intended as litigation support in premises liability cases, those opinions did not rest on a reliable foundation.
The Plaintiff simply has not established that Johnson’s proposed opinions are the “product of reliable principles and methods” or that they “reflect a reliable application of the principles and methods to the facts of the case.”
Brian Grieser
The Defendant sought to offer the expert opinions of Brian Grieser, a consultant with Applied Safety + Ergonomics, a Rimkus Company, to rebut the testimony of the Plaintiff’s expert. He sought to offer the following opinions:
As Lewis approached the area of her fall, the subject condition would have been in her field of view and available to be seen.
Because of the contrast in color, texture, and depth related to the section of the concrete sidewalk that had settled, the subject condition would have been conspicuous and detectable against the neighboring unsettled concrete.
From a human factors perspective, it is reasonable to expect that a pedestrian will encounter pavement conditions that will need to be attended to during normal everyday walking.
Immediately prior to the incident, Lewis did not give sufficient attention to where she was walking, which contributed to her incident.
Had Lewis paid sufficient attention to the area where she was walking as she approached the settled pavement, she could have changed her gait or path to avoid tripping and falling on the subject condition.
Given that the subject condition would have been conspicuous and was a common condition, no additional warning was needed to inform Lewis of its presence.
Johnson’s opinions conflict with published research related to pedestrians successfully navigating sidewalks outdoors with elevation changes substantially greater than 1/4-inch.
Johnson cited several standards in his report that were not applicable to the subject property and were unlikely to have been known by a homeowner such as Heggie.
Johnson did not provide a basis in his report to indicate that the subject condition was a recognized hazard to a typical homeowner.
Analysis
Having already found that Johnson’s opinions will not assist the trier of fact, the Court found that Grieser’s first six opinions are excludable for the same reason.
These opinions offer nothing that a reasonable jury could not determine on its own without the assistance of expert testimony. The rest of the opinions, the sole purpose of which is to rebut Johnson’s testimony, are unnecessary, as the Court has determined that Johnson will not be permitted to testify.
Held
The Court excluded the testimony of both the Plaintiff’s proposed expert, David Johnson, and the Defendant’s proposed expert, Brian Grieser.
Key Takeaway
As set forth above, under Daubert, courts assess the reliability of scientific testimony by considering such factors as (1) whether the [expert’s] theory or methodology has been or can be tested; (2) whether it has been subjected to peer review; (3) whether it has a known or potential rate of error; and (4) whether it has been generally accepted in the scientific community. None of these showings has been made here.
On November 30, 2022, Plaintiff, Cynthia Burgett, was at the Hy-Vee Fast & Fresh convenience store in Prairie Village, Kansas, to purchase gas. The gas station’s fuel pump islands are shaped like an “H” and also referred to by the parties as a “dog bone” shape. The fuel pump islands are elevated above the parking lot pavement. While at Defendant’s gas station, Plaintiff tripped over a fuel pump island and suffered serious injuries. Plaintiff’s alleged injuries are extensive and she asserts that she will need lifetime medical care as a result.
Plaintiff asserted a claim of negligence against Defendant. Plaintiff contended that the fuel pump island was an unreasonably dangerous tripping hazard, that Defendant had knowledge or should have known that it was dangerous, that the design was not in accordance with industry standards, and it lacked safety features of Defendant’s standard pump and the industry standards. Both parties will present expert testimony at trial. Plaintiff has identified two experts that will testify as to the dangerousness of the fuel pump island: Lila Laux, a human factors expert, and Albert Kerelis, a licensed architect. Defendant has identified Richard Serignese as a non-retained expert to testify about the design and maintenance of fuel pumps. The parties have filed motions to exclude the opinions of these experts.
Human Factors Expert Witness
Lila Laux has a doctorate in Industrial/Organizational Psychology with a specialization in Human Factors Engineering from Rice University. She has worked as a human factors engineer for more than 30 years. She now works as a Principal Human Engineer for a firm that provides human factors research and consultative services to the military, NASA, the Nuclear Regulatory Commission, public service organizations, and private businesses.
Albert Kerelis has a master’s degree in architecture and is licensed in several jurisdictions, including Kansas. He has over 27 years’ experience in architecture. For the past five years, Kerelis has worked for Robson Forensic providing expert analysis. He also continues to work as an architect for Facilities Design Group and has done so for twenty years by providing architectural services for residential, commercial, and industrial projects. This includes site analysis, code review, code compliance, schematic design, structural design, mechanical, electrical and fire suppression design.
Laux’s opinions include the following: Plaintiff behaved how most people would behave at a gas station; the fuel pump created a hazard because Plaintiff’s attention was not attracted to the “extended lobe in her path” and she was unlikely to see it; the extended lobe of the fuel pump created an unexpected trip hazard that caused Plaintiff to trip; it is unreasonable to expect that people walking between the store and the fuel pump would expect or detect the unmarked and undifferentiated pump pedestal protruding into their path; and it was foreseeable that customers could fail to detect the raised pedestal and trip as they walked to their vehicle.
Qualifications
Defendant made a cursory attempt to exclude Lila Laux’s testimony on the basis that she is not qualified.
A review of Laux’s resume shows that she has decades of experience on human factors and her opinions largely relate to how individuals and Plaintiff would navigate the obstacle of the fuel pump and whether they would be aware of the elevated fuel pump in their path based on her experience. The Court finds that she is qualified to offer such opinions based on her education and experience.
Helpfulness
Defendant argued that Laux’s opinions would not assist the jury in understanding the evidence or facts in this case because what ordinary people see in situations and how they understand their surroundings are within the common understating of a juror.
Here, the Court found that Laux’s opinions and testimony would not be helpful to the jury. Laux offers opinions regarding the types of customers that would go to a gas station, how customers would walk from the fuel pump to the convenience store, whether customers would expect to see or detect the raised fuel pump, and whether it was foreseeable that someone would trip on the raised fuel pump. Such opinions are not helpful here because the average juror has experience getting gas at a gas station. An average juror also has experience walking from a fuel pump to the convenience store to either pay for the gas or to go inside and purchase additional items.
Albert Kerelis
Kerelis is a licensed architect and will provide the following opinions at trial: 1) the edge of the fuel pump island was dangerous and caused Plaintiff to fall; 2) the edge of the fuel pump island was a low obstruction in a foreseeable pedestrian path that violated the standard of care for safe walkways; 3) the property owners should have known it was dangerous and provided warnings to pedestrians; 4) the failure to eliminate the hazardous condition or provide warnings was a violation of the standard of care for safe walkways and created the hazardous condition that caused Plaintiff’s injury; and 5) the owner violated nationally recognized standards of care and the city’s codes and ordinances.
Qualifications
Defendant asserted that Kerelis is not qualified to provide expert testimony on the fuel pump island because he has not prepared design drawings in the past five years, has not designed any projects in Kansas, and has not prepared a design with a fuel pump island in at least 15 years. Kerelis is a licensed architect with decades of experience who has designed hundreds of sites. He testified extensively regarding his experiences in site design and the related considerations of safety for pedestrians and users of sites when designing sites. The Court held that Defendant’s arguments called into question the weight of his testimony rather than his qualifications.
Reliability
Essentially, Defendant argued that the expert’s opinions are not reliable because he fails to cite any publications regarding the design and maintenance of fuel pump islands. Defendant took issue with Kerelis’ reliance on several national publications which he has identified as standards of care in the industry because they are not publications regarding the design and maintenance of fuel pump islands. Kerelis’ opinions, however, clearly stated that Defendant violated the standards of care regarding safe walkways and warnings regarding obstructions. His expert report cites to various publications, including a publication by ASTM International, formerly the American Society for Testing and Materials (ASTM), which is a “globally recognized leader in the development and delivery of professional consensus standards.”
In the report, Kerelis states that ASTM’s publication, “Standard Practice for Safe Walking Surfaces, is a nationally recognized standard of care for the safe construction and maintenance of walkways to prevent pedestrian falls.” That publication states that “in situations where a short flight stair or single step transition exists or cannot be avoided, obvious visual cues shall be provided to facilitate step identification.”
The Court held that Defendant’s arguments claiming Kerelis failed to cite publications on fuel pump islands are unpersuasive. The standards cited by Kerelis relate to obstructions in a walkway and based on the facts in this case and the expert opinions, a jury could conclude that the fuel pump island extended into the walkway.
Richard Serignese
Defendant identified Richard Serignese as a non-retained expert that will “testify that the shape, size, color, and condition of the fuel pump island is within industry standards and that Hy-Vee did not violate any standard of care in regard to the maintenance of the fuel pump islands.”
Serignese is the Vice Presicent and General Manager of Simon Surfaces and will testify based on his “knowledge, education, training, and experience in the fuel island industry.”
With respect to his opinions, Serignese testified that he actually doesn’t “know the exact industry standard” for fuel pump island designs and that his “understanding has always been people pick what they want to pick. It’s a matter of preference. I don’t know that — I don’t know what the — anybody could tell you what the exact industry standard is.” He then reiterated that he did not know the industry standard for fuel islands and admitted that he could not say that this particular design is or is not industry standard.
Defendant argued that Serignese’s inability to articulate an industry standard should not preclude him from testifying because his testimony is that he doesn’t think there is an industry standard. Defendant, however, offered Serignese as an expert who will testify as to the industry standard and that Defendant’s fuel pump island is within that standard. The Court held that Serignese is not qualified to opine as to these issues and his deposition makes clear that he has no opinion on these issues.
Defendant designated Serignese as an expert who will testify that Defendant met the standard of care for maintaining the fuel pump island. The Court held that his deposition testimony, however, made it clear that he has no expertise in that area.
Held
1. The Court granted the Defendant’s motion to exclude the testimony of Lila Laux.
2. The Court denied the Defendant’s motion to exclude the testimony of Albert Kerelis.
3. The Court granted the Plaintiff’s motion to exclude the testimony of Richard Serignese.
Key Takeaways:
Laux offers opinions regarding the types of customers that would go to a gas station, how customers would walk from the fuel pump to the convenience store, whether customers would expect to see or detect the raised fuel pump, and whether it was foreseeable that someone would trip on the raised fuel pump. Such opinions are not helpful here because the average juror has experience getting gas at a gas station.
Kerelis’ opinions, however, clearly stated that Defendant violated the standards of care regarding safe walkways and warnings regarding obstructions. His expert report cites to various publications, including a publication by ASTM International, formerly the American Society for Testing and Materials (ASTM), which is a “globally recognized leader in the development and delivery of professional consensus standards.” The Court held that Defendant’s arguments claiming Kerelis failed to cite publications on fuel pump islands are unpersuasive.
Case Details:
Case Caption:
Burgett V. Hy-Vee, Inc. Et Al
Docket Number:
2:23cv2173
Court:
United States District Court for the District of Kansas
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.
WalkwaySafety 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.
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.
