Premise Liability Expert Testimony Precluded for Unreliable Methodology and Lack of Specialized Knowledge

    Zach Barreto

    Written by
    — Updated on July 28, 2021

    Premise Liability Expert Testimony Precluded for Unreliable Methodology and Lack of Specialized Knowledge

    Court: United States District Court for the Northern District of Oklahoma
    Jurisdiction: Federal
    Case Name: Woods v. Ross Dress for Less, Inc.
    Citation: 2019 U.S. Dist. LEXIS 154618

    The plaintiff allegedly suffered injuries after falling outside the defendant’s store. To provide clarification on the applicable building codes and ordinances, the plaintiff retained a premise liability expert. 

    The defendant attempted to exclude the expert’s testimony for insufficient qualifications and unreliable methodology. The court agreed and precluded the testimony.

    Facts

    In this suit dealing with premises liability, the plaintiff sought damages for the injuries she suffered. The plaintiff tripped and fell outside the main door of a retail store in Broken Arrow, Oklahoma. The placement of a “for hire” sign by the store was at issue here. The complainant identified a premise liability expert to provide evidence about the International Building Code, the International Property Maintenance Code, and the Broken Arrow City Ordinances.

    The Plaintiff’s Premise Liability Expert Witness

    The premise liability expert witness was a Certified Legal Investigator, A.N.S.I Walkway Auditor Certificate Holder, I.C.C. Certified Property Maintenance and Housing Inspector, and a Certified Member of the International Code Council. The expert witness took some courses at Northeastern State University in general subjects and in criminal justice. Despite those university courses, the expert was not a college graduate. His prior employment experience included working at a steel plant, as a process server, and for Phoenix Savings and Loan. The premise liability expert witness obtained certification from the National Floor Safety Institute to become a Walkway Auditor Certificate Holder.

    The defendant argued for the exclusion of the expert’s testimony because he lacked the qualifications to opine in this case. Then, the defendant asserted that the expert’s testimony was irrelevant and based on inarticulate bases and therefore unreliable. The defendant claimed the expert witness’s testimony was not admissible as per the Daubert standard. The defendant contended the testimony would not assist the trier of fact and was encroaching into the jury’s province. Thus, according to the defendant, the testimony was liable to be excluded.

    Discussion

    The premise liability expert testified that his purpose was to clarify the applicable premises liability law for the jury. The court noted, however, the expert was unable to specify why the ordinances he proposed to testify on were complex enough to need expert testimony to understand. The expert testified that jurors would probably understand what the law mandated or prevented. Nonetheless, the reason for the prohibitions in the ordinances might be incomprehensible for lay jurors. Yet, he admitted a juror would likely understand that signs are anchored to prevent them from getting blown over. For these reasons, the court concluded the plaintiff failed to prove that the proposed premise liability expert had sufficient expertise. Furthermore, the plaintiff didn’t prove the expert had sufficient specialized knowledge of the ordinances to help for the trier of fact.

    As for the reliability of the expert’s methodology, the court note, in his report, the expert looked at some codes. Additionally, he checked the accident footage and the statement of a Residential Plans Examiner who worked for the city. He also took more pictures and visited the accident site after more than a year past the accident. The expert witness did not talk to the plaintiff, any of the defendant’s employees, or any of the eyewitnesses. In addition, the expert did not measure or inspect the walkway to determine if it was in fact hazardous. He never performed a coefficient of friction test on the shoes the plaintiff wore at the time of the accident. Therefore, the court noted, it could not consider the testimony to be based on reliable methodology.

    Ruling

    The court granted the defendant’s motion to preclude the premise liability expert witness testimony.

    Key Takeaways for Experts

    To be the most reliable expert witness, it is important to have a strong expert methodology along with the right qualifications per case to opine. In this case, though the expert witness did his research of the accident, there were missing parts to his report. He didn’t cover all aspects of the accident including performing a friction test on the plaintiff’s shoes. The expert witness also did not explain the need for an expert. Expert witnesses should clarify their necessity in a case and how they can help the jury’s understanding. A reliable methodology and qualifications are also crucial to meet admissibility standards before the court.

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