The instant matter is a personal injury action arising out of an incident on March 14, 2021 where Plaintiff, Jaliska Marte claims that she tripped and fell on an orange safety cone at the Howell, NJ Walmart store.
Defendant argued that the liability report from Plaintiff’s retail expert, Daniel Schroeder, CSM, is an inadmissible net opinion because the expert’s conclusions lack factual basis.
Retail Operations Expert Witness
Daniel Schroeder has nearly two decades of store leadership experience in Big Box, Home Improvement, Grocery, and Specialty Retail areas. He can provide crucial analysis into the inner workings of retail establishments as they inform employee training and inspection protocols which impact the likelihood of slip, trip, and fall accidents.
Here, the Court found Schroeder’s expert opinion riddled with inadmissible net opinions. For example, Schroeder opined that, by allowing the cone to remain tipped over, Defendant violated its own policy and procedures based upon Schroeder’s experience in the retail industry. This assertion lacked factual foundation because Schroeder neither cites Defendant’s policies and procedures in his report nor lists Defendant’s policies and procedures in the “Works Cited” section of the report. Moreover, there is no discussion in the report as to what Defendant’s policies and procedures are and how Defendant violated them.
Additionally, there is no discussion in the report as to what Defendant’s policies and procedures are and how Defendant violated them. Moreover, there is no information regarding Schroeder’s experience contained within the report—such as a curriculum vitae or publications—or discussion about such experience that would lend support for this opinion. This conclusion therefore lacked the “why and wherefore” required by an expert report.
Schroeder additionally concluded that the person wearing an apron could have eliminated the hazard posed by the tipped-over cone because “it is the responsibility of the store leadership and staff to actively look for hazards during their work shifts in order to maintain a safe shopping environment.” This contention similarly lacked the “why and wherefore” necessary for expert reports because Schroeder offered no explanation or discussion for his finding that the person wearing an apron was Defendant’s employee.
Analysis
Connecting his two assertions, Schroeder ultimately concluded that Defendant was responsible for Plaintiff’s fall and resulting injuries because: (1) “there was a specific opportunity for the hazard to be observed, identified, and eliminated before the incident by the employee walking past the safety cone less than 1 minute before the incident”; (2) “had the area been adequately inspected, monitored, and maintained reasonably safe and in compliance with the subject documentation, the subject condition would have been corrected”; and (3) Defendant’s “responsibility comes in the form of training and procedures to ensure that store leadership, as well as their employees recognize, mitigate, and eliminate potential risks in a reasonable manner.” Without any discussion of Defendant’s policies and procedures or deposition testimony by Defendant’s corporate representative to support Schroeder’s conclusion of liability, his report constitutes nothing more than bare conclusions in Plaintiff’s favor.
Held
The Court, accordingly, found that Daniel Schroeder’s report is a net opinion.
Key Takeaway
An expert’s bare conclusions, unsupported by factual evidence are an inadmissible net opinion. The net opinion rule requires the expert to give the why and wherefore of the opinion, rather than a mere conclusion.
Plaintiff Sun State Ford initiated this action for monetary, declaratory, and injunctive relief on September 8, 2023. Defendant Ford Motor Company is a manufacturer and distributor of Ford brand vehicles, and Plaintiff is a constituent franchise dealer. This case arises from Defendant’s alleged breach of oral contracts, perpetration of unfair business dealings, and other unlawful practices.
Defendant filed a Daubertmotion seeking to exclude the testimony of Plaintiff’s expert, Joseph Roesner.
Automotive Expert Witness
Joseph F. Roesner possesses a B.A. in business administration and history from the Marymount College of Kansas and an MBA from the University of Arizona.
Roesner has over 35 years of experience in the retail automotive industry and has conducted analyses and studies of hundreds of new motor vehicle dealerships of various line-makes, including Ford.
Roesner was retained to determine whether the sale of “new retail Ford light and medium trucks by Rush Truck” impacted new retail Ford sales of Sun State Ford from October 2019 through 2024.
Roesner was told to accept two assumptions in forming his opinions: (1) Sun State Ford was told that Rush Truck would only be serving the commercial truck market and would not be competing for retail sales, and (2) to assume that “as a matter of law,” Rush Truck should not have made new retail Ford sales, and such sales should have been made by other licensed Ford dealerships.” He outlined two primary opinions. First, he opined that during the relevant time, “Sun State’s sales of new retail Ford vehicles sold by Rush Truck . . . would have at a minimum been 86 vehicles.” Second, he opined that the percentage of new retail Ford vehicles sold by Rush Truck during the relevant period is inconsistent with a dealership only serving the commercial vehicle market.
The Defendant argued that Roesner’s lost sales opinion is irrelevant and unhelpful because he did not convert the raw numbers or lost sales into damages. The Defendant also claimed that the opinions are unhelpful and unreliable because Roesner accepts assumptions from Plaintiff’s counsel that contradict the pleaded allegations and the testimony of Plaintiff’s main witness and therefore do not align with the facts of the case. Lastly, the Defendant asserted that the Plaintiff’s methodology is unreliable, because “some unknown number of what [Roesner] considered to be ‘retail’ sales could have been commercial sales.”
A. Calculation of Damages
The Plaintiff’s calculation of damages was not provided until August 28, 2025, after discovery closed on July 31, 2025, and after the Defendant filed its Daubert Motion. Furthermore, Roesner did not provide an opinion on the damages suffered by the Plaintiff. Since the Plaintiff failed to disclose its damages calculation until after discovery closed, making such evidence inadmissible, Roesner’s estimate of the sales allegedly lost to Rush Truck is unhelpful. Knowing the number of light-duty and medium-duty trucks sold by Rush Truck that should have been sold by the Plaintiff does not assist the jury in calculating damages. In short, nothing in Roesner’s report addresses the types of damages the Plaintiff identified in its Rule 26 disclosure.
Accordingly, the Court excluded Roesner’s opinions regarding the number of new retail Ford vehicles sold by Rush Truck during the relevant period.
B. Assumptions and Methodology
Roesner was asked by Plaintiff’s counsel to assume that Rush Truck would only serve the commercial truck market and would not compete with Plaintiff for retail sales, and to further assume that, as a matter of law, such retail sales should have been made to other licensed Ford dealerships.
Roesner’s assumption that Rush Truck was prohibited from selling any retail vehicles conflicts with the evidence. The question is whether this inconsistency between the assumptions and the facts renders Roesner’s opinion about Rush Truck’s retail sales, and thus those lost by the Plaintiff, inadmissible. The same issue applied to Roesner’s claim that the percentage of new retail Ford vehicles sold by Rush from 2019 to 2024 is inconsistent with a commercial truck seller.
Roesner’s reliance on these assumptions undermines his methodology. That is, Roesner’s method for counting the sales that the Plaintiff “lost” to Rush Truck does not consider that Rush was allowed to make retail sales incidental to their heavy-duty truck and fleet customers. This is because he was instructed to assume that Rush Truck was prohibited from making any retail sales.
Roesner’s opinion on lost sales suffers from a similar flaw. He relied on the assumption that retail sales made by Rush Truck should have been made by other licensed Ford dealerships. This assumption overlooks the fact that Rush Truck was allowed to make retail sales incidental to its heavy-truck and commercial customers.
Held
The Court granted the Defendant’s Daubert motion to exclude Joseph Roesner’s opinions.
Key Takeaway
Roesner did not specify the data or analysis supporting his conclusion that if Rush’s retail sales were impermissible, they would have been captured by Plaintiff.
Because Roesner’s reliance on assumptions provided by Plaintiff’s counsel weakens his methodology for calculating “lost” retail sales and his characterization of Rush Truck as operating inconsistently with commercial sales, the Court excluded these opinions as unreliable.
This case arises from the injuries sustained by Plaintiff, Jessica Loseke, and her husband while they were shopping at Menards in Omaha, Nebraska. They were loading a “refurbished cart” with bags of water softener when the cart broke and injured Loseke’s knee.
Loseke filed a motion in limine to preclude the testimony of Defendant’s expert witness, Alex J. Balian, from being admitted at trial. Defendant, Menard, Inc., a Wisconsin Corporation (“Menards”), filed a motion in limine to exclude the testimony of Plaintiff’s expert William N. Nelson, BSME, MS, MBA, and any other evidence of and/or reference to Nelson’s opinions.
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.
William N. Nelson has over 20 years of experience in the application of Biomechanics, Ergonomics, Human Factors and Product Development. His consulting experience is very broad: from industrial to sports; from federal government to private enterprise; from medical institutions to aerospace.
Nelson’s past work has involved customized training for injury prevention; ergonomic job analysis resulting in a rotation schedule which utilized biomechanical, physiological and skill level data; human factors analysis of Cumulative Trauma Disorder in production processes; development of workstation set up and design.
Plaintiff argued that Balian’s proffered testimony is not reliable. Plaintiff stated that “Balian’s opinions are primarily based on his personal experience in the retail industry, rather than on any scientific or technical methodology. His report lacks any empirical data or testing to support his conclusions regarding the safety of Menards’ shopping cart inspection procedures.”
Opinions of William Nelson
Defendant argued that “Nelson’s opinions are unreliable. He believed that Menards should have some sort of “preventative maintenance” program, and that Menards should hire employees who are trained in welding to inspect carts. These opinions are not based on any retail-industry specific standards but rather drawn based on his own belief.”
Analysis
The Court has carefully reviewed the argument of the parties as well as the briefs, the evidence presented, and in particular, the opinions of both Nelson and Balian.
Nelson is an engineer who has a working knowledge of welding requirements, and Nelson applied engineering principles from his educational background, studies, and work experience. With regard to Balian, the Court likewise found his testimony relevant and of assistance to the trier of fact in this case. Balian has served as a consultant for retail store operations, where he has advised, trained, and executed policies and procedures in supermarkets and other public facilities.
Held
The Court denied Plaintiff’s motion in limine to preclude the testimony of Alex Balian.
The Court denied Defendant’s motion in limine to exclude the testimony of William Nelson.
Key Takeaway:
Both experts appeared to have the educational knowledge, training and experience to testify in this case. Their testimony appeared to be such as would assist the trier of fact without invading the province of the jury.
This case involves injuries caused by a falling sign at a retail store. Allison Howard alleged that on March 27, 2023, she was shopping in a Target store when she was hit in the neck and upper back by an improperly attached metal and wooden sign that fell from the top shelf of the aisle she was shopping in. Howard claimed that she did not cause the sign to fall.
At her deposition, Howard testified that the accident occurred when her ex-husband, Isaiah Laborde, who was playing catch with her children, tossed a stuffed animal (specifically, the crab Sebastian from the Little Mermaid) in the air and it hit the sign, causing it to fall. Laborde confirmed the same at his deposition. Nonetheless, Howard alleged that Target’s negligence caused the accident, and she sought various damages for her resulting injuries.
Howard hired Mitchell Wood as a liability expert to support her theory of the case. Target argued that Wood should be precluded from testifying for a myriad of reasons.
Architecture Expert Witness
Mitchell Wood holds degrees in architecture and civil engineering, has been a licensed architect for 36 years and a licensed commercial general contractor and residential builder for more than 25 years. He owns an architectural design and planning firm that performs residential and commercial design services, building and safety code reviews, site inspections, and project management. He also owns a residential and commercial building business. Wood has been involved in commercial and retail building design projects, including designing safe walkways. He has been accepted as an expert witness by Louisiana federal and state courts in the fields of construction, inspection, project management, site safety, architecture and design, and building codes.
Wood, after reading the complaint and Laborde’s deposition, studying photographs of the accident scene and the sign, and examining the stuffed animal (which weighs 1.27 ounces), issued a report in which he opined “that the metal/wood sign was not anchored in or attached to the support bracket in a secure manner.”
He stated that he deduced this opinion from the relatively light weight of the stuffed animal, which he said should not have been able to detach the heavier sign from the bracket.
Wood further opined that Target knew, or should have known, of the unsafe manner in which the sign was attached to the overhead bracket. And he stated that “Target’s failure to safely attach this metal/wood sign to the support bracket in question created a hazardous condition which resulted in an unreasonable risk of harm to its customers” that “could have been easily rectified by properly anchoring the metal/wood sign with a screw and/or bolt.”
Finally, according to Wood, “the hazardous condition and unreasonable risk of harm created by Target is a ‘prima facie’ cause and cause-in-fact of Howard’s injuries.”
Parties’ Positions
First, Target argued that, as an architect and general contractor, Wood is unqualified to render opinions in this matter because he does not have any experience or qualifications related to retail signage or falling merchandise claims, has never published on those subjects, and is not a retail safety expert. Next, Target contended that Wood’s opinions are unreliable because he did not inspect the sign, did not take into account Laborde’s actions as a cause of the accident, and did not conduct a duty-risk analysis before concluding that Target was at fault. Finally, Target argued that Wood’s opinions that a dangerous condition existed and that Target knew, or should have known, about it should be excluded as improper legal conclusions that will not assist the jury.
In opposition, Howard argued that Wood is qualified to render the opinions he stated in his report because he has decades of experience as an architect and contractor, including experience working on the design and safety of commercial buildings. She then recounts counsel’s efforts to arrange for Wood to inspect the property and blames Target for the lack of inspection. Howard contended that Wood’s opinions are relevant and reliable because he can testify as to the difference in the weight between the objects involved – a 1.27 ounce stuffed animal as compared to a 2.79 pound sign – and explain that the toy should not have been able to dislodge the sign if the sign was secured properly.
Howard also argued that Wood can explain the cost-benefit analysis regarding Target’s layout and alterative signage attachment systems. Finally, Howard argued that Wood’s opinions would be helpful to the jury because most jurors are not familiar with “retail signage attachment systems and general pedestrian safety precautions in a retail store setting.”
Analysis
Having weighed Wood’s report and qualifications against the arguments presented, the Court found that Wood’s education and experience qualify him to render the opinions expressed regarding the relative weights of the objects involved in the incident and available alternative methods for anchoring the sign. Those opinions are relevant and reliable. However, Wood may not offer any opinions as to ultimate factual or legal conclusions, including whether Target knew, or should have known, there was an unsafe condition, whether Target created an unreasonable risk of harm, and what constitutes a prima facie cause or cause-in-fact of the accident and injuries. These matters are reserved for either the factfinder or the Court.
Held
The Court granted Target’s motion in limine to exclude Mitchell Wood’s testimony as to precluding Wood from testifying as to ultimate factual and legal conclusions, including whether Target knew, or should have known, there was an unsafe condition, whether Target created an unreasonable risk of harm, and what was a prima facie cause or cause-in-fact of the accident and injuries. The motion is otherwise denied.
Key Takeaway:
Wood was barred from testifying as to ultimate factual and legal conclusions, but his education and experience qualify him to render opinions regarding the relative weights of the objects involved in the incident and available alternative methods for anchoring the sign.
On July 12, 2019, Plaintiff Karen Morgan went shopping for her son at Defendant’s Dick’s Sporting Goods (“DSG”) store in Gaithersburg, Maryland. As she walked through the store, she stopped to look at a display of women’s clothing. After she stooped down to look at the clothes on the bottom shelf, she felt a sudden pain on the top of her head. When she looked around, she saw a sign laying on the ground beside her. The sign was a large but lightweight object. Morgan did not notice the sign before the incident and she does not know why it fell. No one saw the sign fall but a DSG employee heard a loud bang around the time it happened. Plaintiffs alleged that they were injured after Morgan was struck by the sign.
DSG filed a motion to exclude evidence from Plaintiffs’ liability expert, Jerry Birnbach, because his opinions are unreliable and speculative.
Architectural Design Expert Witness
Jerry Birnbach has bachelor of science degrees in architectural technology and architecture, and is a member of a number of professional organizations. He has experience as a quality control engineer, as a director of store planning, maintenance, and new store construction, and as an executive in charge of store design, display design, and retail safety.
To begin with, Birnbach is a “retail safety expert.” Birnbach’s opinions are not based on any particular scientific theory that can be tested. And they are not based on a methodology subjected to the rigors of peer review and publication. Instead, his opinions are based on his experience. When considering whether an opinion based on an expert’s experience is reliable, courts consider whether the expert has explained “how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts.”
The Court held that Birnbach’s opinions would not be helpful to a jury because they are not based on any specialized knowledge. Laypeople know that signs should not fall on customers’ heads while they are shopping in a store. They know that objects placed in high places can fall down if not properly secured. And they know that falling objects can cause injury. They do not need an expert to tell them these things.
Held
The Court granted DSG’s motion to exclude evidence from Plaintiffs’ liability expert, Jerry Birnbach.
Key Takeaway:
Because Birnbach’s opinions would not help the jury, their admission would be improper under Rule 702. The Court excluded Birnbach’s opinions because they did not require specialized knowledge and were opinions a layperson could form, and would thus not be helpful to a jury.
Case Details:
Case Caption:
Morgan Et Al V. Dick Sporting Goods, Inc.
Docket Number:
8:22cv1633
Court:
United States District Court for the District of Maryland
A district judge in Louisiana limited the testimony of a renowned architect, citing a complete failure to explain the origin of his methodology or to point to scientific support for the technique that reliably predicts the likelihood that a canopy on display in a store is dangerous, despite his years of experience.
To begin with, the Plaintiff alleged that she sustained personal injuries after a canopy purportedly fell off of the shelf and struck her on the back of her neck and head while she was visiting Academy store number 171 located in Metairie, Louisiana.
To attempt to prove that the canopy display was dangerous in a manner that caused the Plaintiff to be injured, the Plaintiff retained Mark E. Williams, a licensed architect and professional litigation consultant.
Williams had two primary opinions. First, Williams opined that the vertical display of the canopies was unreasonably dangerous. Second, Williams opined that the unreasonably dangerous display of the canopies caused the Plaintiff to be struck and injured.
Academy argued Williams had no relevant experience in the retail industry and, thus, was “plainly not qualified” to testify or offer any opinions regarding retail safety. Academy further contended Williams’ methodology was neither scientific nor reliable as required under Daubert; Williams’ opinions will not assist the trier of fact in understanding the evidence or determining a fact at issue as required by Federal Rule of Evidence 702; and Williams’ opinions on causation should be excluded given his lack of medical expertise and because allowing him to testify about the ultimate issue would permit him to invade the province of the jury. Finally, Academy asserted, Williams should not be allowed to offer any testimony as to Academy’s overall store sales because this information is irrelevant in this falling merchandise lawsuit.
Architecture Expert Witness
Mark E. Williams is a broadly experienced registered architect. He has had a diverse career that includes the design and construction of fast-food restaurants, postal facilities, multi-family residential developments, hotels and motels, nursing home and assisted living facilities. Williams provides technical investigations, analysis, reports, and testimony for failure analysis, and towards the resolution of commercial and personal injury litigation involving slip, trip, and fall injuries, code compliance, accessibility, construction claims and disputes, aspects of property management, construction materials, and architectural professional liability.
He is licensed in multiple states throughout the Southeast and is certified by the National Council of Architectural Registration Boards.
1. The canopy display with unrestrained carry bags placed upright was dangerous in a manner that caused Rome to be struck and injured.
2. The canopy display with unrestrained carry bags placed upright was dangerous because it posed a hazard to shoppers browsing merchandise that violated nationally recognized standards for safe retail displays.
3. Displaying the canopy bag with the base inverted placed the wheels pointed up, which increased the likelihood that it would lean, become unstable, and topple off the shelf, particularly if unrestrained.
4. The lack of any guard or restraining device at the canopy display made it foreseeable that the upright carry bag would topple off the shelf and strike Rome.
5. Reasonable periodic inspections of the store aisles in accordance with nationally recognized standards for safe retail practices would have reliably identified the dangerous canopy display that caused Rome to be struck and injured.
6. Those responsible for customer safety should have known that the canopy display of unrestrained carry bags placed vertically with the wheels pointed up was dangerous and taken appropriate measures to protect customers.
7. The failure of Academy Sports + Outdoors to comply with its Planogram for the canopy display violated corporate specifications for safety and exposed Rome to the dangerous condition that caused her to be struck and injured.
8. The failure of Academy Sports + Outdoors to maintain the canopy display in accordance with applicable safety practices of the retail industry violated the standard of care, and created the dangerous condition that caused Rome to be struck and injured.
Qualification as an Expert and Testimony Regarding Best Safety Practices
Academy argued that Williams’ review of best practices for retail displays did not render him an expert in that field, and the “best practices” Williams cited could be summarized as ensuring that merchandise was displayed safely.
To support its opinions regarding Academy’s canopy display vis-à-vis retail industry best practices, Williams reviewed, inter alia, the pleadings in this matter, Academy’s discovery responses and document production, surveillance videos, post-incident photographs, the National Safety Council’s Accident Prevention Manual for Business & Industry, Loss Control: A Safety Guidebook for Trades and Services, and safety publications and policies of other retailers.
Williams is a licensed architect whose education, training, and experience included the design and planning of commercial and retail buildings, including those containing shelving systems and palletized storage.
Although William did not have any credentials specific to the retail safety sector, the Court noted that his education and experience equipped him to assess and explain best safety practices.
Moreover, his synthesis of this information will assist the trier of fact in understanding safety standards in the retail space and whether Academy adhered to those standards.
Stability Testing Methodology
The Court considered three of Williams’ conclusions involving Academy’s placement and display of canopies to determine the reliability of Williams’ stability testing methodology.
Williams testified that he tested the stability of a 10-by-10 Easy Shade Canopy by weighing the object in two orientations multiple times, placing it horizontally and observing that it was stable, then placing it vertically on a hard surface and using a spring scale to apply force to the canopy to determine how much force was necessary to render the canopy unstable. Williams then placed the canopy on a hard surface for an extended period of time to confirm that the solid material of the canopy “conformed to the topography of the canvas bag,” which “added to the instability when it’s upright in a vertical position and not restrained.” The “exemplar canopy” that Williams used for his testing, unlike the canopy that purportedly struck Plaintiff, did not have wheels or feet.
Williams’ total failure to explain the origin of his methodology or point to some scientific support for the technique reliably predicting the likelihood that a canopy on display in a store is dangerous gave the Court, charged with the obligation of serving as a gatekeeper under applicable law, a great deal of pause and concern.
The methodology is unreliable in that Williams performed his test on a tent without wheels or feet, features he concluded would affect the stability of a vertically displayed canopy. Even if the Plaintiff met her burden to prove by a preponderance of the evidence that Williams’ methodology was reliable, she failed to demonstrate the relevance of Williams’ testimony.
Relevance
Williams’ testing of a canopy that did not have wheels and feet is irrelevant to the determination of whether the canopy that allegedly struck the Plaintiff, a canopy that had wheels and feet, was unreasonably dangerous based on its purported instability. Even if this mismatched analysis could provide the jury with an understanding of how the specific tent that struck Plaintiff may have fallen onto her, such an opinion is unnecessary.
A reasonable lay person, looking at a long, narrow object stood vertically, is capable of concluding how it might move based on an imbalance or applied pressure and can do so without a scientific explanation. The Court found this to be a matter of common sense, and common sense is the bailiwick and jurisdiction of the jury.
Causation
Defendant sought to preclude Williams from testifying about causation, specifically Williams’ conclusion about the allegedly dangerous design of the canopy display. Plaintiff has indicated that Williams will not testify about the extent of injuries Plaintiff allegedly sustained. However, the Court has not yet decided whether Williams may testify that Academy’s purportedly unsafe display of canopies caused one of them to fall and strike Plaintiff. Defendant argues that he may not because to do so is to invade the province of the jury by addressing the ultimate issue in this case.
The Fifth Circuit has made clear that Rule 704(a) “does not allow a witness to give legal conclusions.”
The final portion of Williams’ opinions about certain elements which caused Rome’s injuries cross into the realm of legal conclusions.
While Williams may testify about the potential danger of the canopy display due to its alleged non-compliance with the store’s planogram and industry best practices, the Court found he cannot state that such dangers caused the Plaintiff’s purported harm.
Academy’s Overall Sales
The Court deferred ruling on this issue, emphasizing the need to hear any potential testimony by Williams regarding Academy’s overall sales in context.
Held
The Court granted in part, denied in part, and deferred in part Academy’s motion in limine to exclude or limit the testimony of Mark E. Williams.
Key Takeaways:
Williams’ curriculum vitae reflects over 30 years’ experience as an architect with responsibilities including quality assurance policy and procedure, code and technical research, and safety and security installations. Although William does not have any credentials specific to the retail safety sector, his education and experience well equips him to assess and explain best safety practices. His synthesis of this information will assist the trier of fact in understanding safety standards in the retail space and whether Academy adhered to those standards.
Expert testimony is unnecessary where a jury can adeptly assess the situation using only their common experience and knowledge. A reasonable lay person, looking at a long, narrow object stood vertically, is capable of concluding how it might move based on an imbalance or applied pressure and can do so without a scientific explanation. The Court finds this is a matter of common sense, and common sense is the bailiwick and jurisdiction of the jury. That being the case, and given its lack of reliable methodology and relevance, the Court excluded Williams’ testimony regarding his testing of an exemplar tent.
While courts must conduct the Daubert analysis “flexibly” and the factors identified therein “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony,” Williams’ total failure to explain the origin of his methodology or point to some scientific support for the technique reliably predicting the likelihood that a canopy on display in a store is dangerous gives this Court, charged with the obligation of serving as a gatekeeper under applicable law, a great deal of pause and concern.
