Court: United States District Court for the District of Nevada
Case Name: Millan v. Cardenas Mkts., Inc.
Citation: 2017 U.S. Dist. LEXIS 145996
The plaintiff attempts to argue that even though the expert did not inspect the site of the slip and fall incident, his review of relevant case documents was sufficiently reliable methodology to form his opinions.
The plaintiff slipped on a wet floor while shopping in a Cardenas Markets store. The plaintiff sued the supermarket chain for damages that she allegedly suffered as a result of her fall. The defendant filed this motion to exclude the plaintiff’s premises liability expert witness.
The Premises Liability Expert
The plaintiff’s expert submitted four opinions: (1) water on the floor is considered to be a hazard, (2) the floor where the plaintiff fell possibly had poor slip-resistance qualities, (3) there was inadequate evidence to establish a vital risk management policy at the facility in order to secure adequate safety for pedestrians, and (4) there was no proof that the plaintiff contributed to the accident.
The defendant argued that the premise liability expert’s testimony was not admissible because his opinions were unreliable and would not assist the trier of fact. The defendant claimed that the expert’s second opinion on the nature of the floor having low slip-resistance was not supported by the facts of the case. Furthermore, the defendant claimed that the expert’s other opinions would not assist the trier of fact, as they were common knowledge. The defendant also argued that the expert had not inspected the store premises, nor had he tested the floor in question before forming his opinions.
The plaintiff argued that even though her premise liability expert witness had not inspected the premises, he had reviewed case documents including her deposition, the defendant’s disclosures, among others, to form his opinions. The plaintiff contended that the expert’s report was relevant because it explained the standard of care applicable to the defendant as well as how the defendant’s negligence caused the plaintiff’s injury. The plaintiff also requested that the court allow the expert witness to submit a supplemental report after inspecting the defendant’s premises.
Regarding the premise expert’s opinion on the floor having low slip resistance, the court noted that the expert had never inspected the floor. According to the court, there was no indication that the expert had relied on video evidence to form his opinion. In his report, the expert had only referred to the defendant’s disclosure, the shoes the plaintiff was wearing at the time of the fall, and an employee’s account of the incident. The court noted that the expert had explicitly mentioned he was not provided a photograph of the floor to refer to. He had instead based his opinion on previous inspections of other floors in similar market areas. The court observed that the difference between the data he relied on and the opinion he offered was too wide to allow the opinion. Thus, the expert’s opinion on this point was excluded.
The court noted that since the premise liability expert could not show how his opinions were based on specialized knowledge that would clearly help the trier of fact understand the presented evidence, the court could not find his testimony to be relevant. The court also denied the plaintiff’s request for permission to file a supplemental report because the expert’s opinion was irrelevant and inadmissible. The defendant’s motion to exclude testimony of the premise liability expert witness was granted.