Personal injury cases often involve accidents at retail stores, and with the growth of “big box” retail stores and wholesale clubs like Walmart, Target, Costco, BJ’s and Home Depot, personal injury lawsuits involving these one-stop-shop giants have become more common as well. Factors to consider when choosing a retail expert for your case may seem straightforward and intuitive. However, litigation within this unique subset of the retail industry involves several nuances and subtleties that need special attention. Based on a series of interviews, we’ve identified 7 key strategies to help litigators use experts improve any big box retail case. The attorneys and experts that we spoke to recommend that you use your expert witness to:
1.) Shape Your Case
The utility of an expert witness goes beyond just the substantive factual testimony they have to offer. Especially in cases involving a “big box” retailer, discovery can be a difficult and time-consuming process. Attorney Alan LeVar notes that “‘big box’ retailers often have a lot of video surveillance, and accidents are often recorded. Despite (or because of) this, big box retail defendants are usually not forthcoming with the surveillance footage, and attorneys may have to compel discovery by filing a motion requiring the retailer to disclose the footage.”
There are no unique industry standards for these large stores. A good retail expert will be more familiar with the kinds of materials and documents to demand from a big box retailer. A good retail safety expert can also help you craft deposition questions for party opponents. Thus ensuring your questions are as specific as possible and get effective answers. As for the trial phase, remember- Federal Rule of Evidence 703 “allows an expert to rely on inadmissible evidence to form an opinion provided that it is of a type reasonably relied upon by experts in the particular field in forming opinions on the subject” Vendelin v. Costco Wholesale Corp., 95 P.3d 34, 47 (Idaho 2004); FED. R. EV. 703.
The expert in Vendelin was one of our interviewees, safety engineer J. Terrence Grisim. In this case, Grisim was able to reference a report prepared by Costco. It summarized all accidents involving falling merchandise nationwide from 1998 through 2000. This evidence formed the basis for his opinion that Costco was on notice that it lacked adequate employee training procedures for safely stacking store merchandise. This was over Costco’s objection that the accident summary was irrelevant to the case. On the grounds that it did not specify whether the accidents were a result of stacked merchandise per se. Vendelin, 95 P.3d at 47.
Remembering this exception will make sure your expert’s opinion is as effective as possible. Even when it is based on evidence that would otherwise be inadmissible. Still, when working with retail safety experts it is vital to understand that timing is key. A good expert can only be helpful if they are retained and prepared in advance. If secured early, he or she can brief you on any problem areas that exist at every stage in the discovery and litigation processes. Without allocating this time, you deprive yourself and the expert of the opportunity to comb through the issues, and risk compromising the quality of representation to your client.
2.) Focus on What Matters
“There are no separate standards [in “big box” retail safety], so having a great expert on your team to tell you whether the store was taking reasonable safety measures is always vital” explains retail safety expert Jerry Birnbach. “The more you know about the retail environment, the more faults you can find, for example, you could say ‘not only was the display placed negligently, it was assembled against manufacturer’s standards and was missing a key safety component.’”. A good retail expert for big box retail safety cases will be cognizant of the company’s unique practices, policies, safety mandates, and employee training procedures. This kind of diverse, but specialized, knowledge will set your expert apart from other retail experts. It is important to remember that even though big box retailers must exercise the same standards of care as other smaller retailers, their sheer size, architectural layout, and vast consumer base make them unique environments.
Bob Loderstedt, another retail safety expert, explains that in the absence of “national standards” there exists a collection of industry customs and practices that have arisen from the internal safety guidelines followed by major industry players. “For example, Home Depot has a manual that contains the safety norms and standards that they expect their stores to abide by throughout the country.”. A knowledgeable retail expert will be familiar with the ANSI (American National Standards Institute) standards that apply to the retail environment. They will also be cognizant of a particular company’s safety manuals and handbooks. They will know how to use these materials to substantiate their opinions. An expert’s familiarity with these aspects of big box retailers will help you to narrow the scope of your cause of action. As well as streamline the focus of your questions, and eliminate the risk of frivolity.
3.) Educate The Jury
It is fair to assume that jurors will be familiar with multiple big box retail chains. However, they are likely unfamiliar with the pertinent industry safety standards. “Facts seem obvious, because everyone is exposed to retail stores. It seems that knowledge of safety standards is common sense, but juries aren’t aware of standards of care… a key part of an expert’s testimony in these contexts is educating the jury about industry standards”, says expert J. Terrence Grisim.
It is important for the expert to explain to the jury that there are some national safety standards applicable to all retailers including big box retailers. ANSI 1264.2 which concerns floor-slip resistance for example. They must distinguish these standards from the industry customs and practices that big box retailers adhere to. A good expert will be able to flesh out the relevant industry standards, highlight their importance and most importantly, tie them back to the case. For example, in the case of falling merchandise, an expert should be able to identify the corresponding national standard and related industry practice regarding shelving requirements.
Finally, the expert should explain why it was or was not inadequate and how it consequently caused or did not cause the customer injury. According to Boston-based attorney William D. Kickham, who specializes in falling merchandise cases, “one of the most crucial first steps is for an expert to distinguish the extremely different environments of big box retailers as compared to regular retail stores or supermarkets.”
Big box retailers represent a hybrid design of a retail store and a warehouse. This means that customers are exposed to a combination of consumer products at eye level and storage of extremely heavy and dense materials above their heads. This includes refrigerators, gallons of paint, or other machinery and equipment. Subsequently, the shelving units in big box retailers are often heavier than standard shelving commonly found in regular retail stores. Employees commonly operate motorized vehicles such as forklifts and small power trucks during normal business hours.
As a result of these different conditions, there is a higher rate of indirect employee/customer interaction, and a greater risk to customers in the store. Falling merchandise expert Anthony Sterling opines “Warehouse employees are trained in safety and so should employees of big box retailers, especially true since conditions within the retailer facility (i.e. merchandise positioning) are constantly changing, as a result of being handled by customers. Retail employees, therefore, should be trained to recognize hazards and to constantly be vigilant.”
It is essential that an expert define and highlight the unique circumstances present in big box retailers as a preliminary step to give the trier of fact an enhanced and thorough understanding of the circumstances surrounding the cause of action. Remember that in litigation, opportunities to present the “story” to the jury are limited to an attorney’s opening argument and concluding remarks (the summation). The expert’s testimony is another valuable opportunity to once more present a substantive argument to the jury and should be taken advantage of.
4.) Distinguish the Damages
The environmental differences between regular retailers and big box retailers translates into a difference in damages in a personal injury case. If the expert successfully distinguished the environments of big box retailers to set them apart from other retailers, the next step is to highlight how these differences affect the nature of damages, especially if they rise to the level of punitive.
Attorney William Kickham explains, “even though there aren’t different industry standards for big box retailers, there is a difference in the amount of damages and this is because of 2 extremely important factors. One factor concerns the nature and degree of the injury. Instances of falling merchandise in big box retailer stores are inherently more dangerous because of the kinds of items that will be falling on the customer and the heights from which they fall. This means the difference between injuries from which a customer can fully recover and permanent damage or even death.
“The second factor involves foreseeability and whether the big box retailer took all the necessary steps possible to prevent the injury or dangerous condition.” A great expert is one who, with a combination of knowledge in physics, retail and warehouse design and big box retailer practices, will be able to highlight how damages are differently affected in these kinds of cases. Mr. Kickham illustrated a common example: “Take for instance the storage of paint cans. Because they contain a viscous liquid, even vibrations from movement in the next aisle is enough to ‘rock’ the paint inside. If these are improperly stacked, it would take little for the paint to topple over. Gallons paint are very dense and can cause significant injury.”
5.) Be Mindful of Your Own Expertise
As attorney David Azizi puts it- “sometimes the most knowledgeable expert does not make the best witness.” Mr. Azizi emphasized the importance of a witness to be able to use simple, easy to understand language that makes sense to the trier of fact and jury. It may seem that this goes without saying, but Mr. Azizi reminds us that “after a while, as a consequence of being a zealous advocate, we become something of an expert ourselves,”. Referring to the degree of attorney’s familiarity with technical language and factual subject matter contained within retail safety cases.
This is especially true for advocates who specialize in personal injury litigation involving retail stores. It is easy to become “desensitized” to what sometimes can be complex or highly technical aspects of an expert’s testimony. So it is important to mentally set yourself in the jury box. It’s you, vis-a-vis your expert, that needs to communicate these ideas to the jury and provide a strong, cohesive argument. One that the jury will understand, and use to inform their decision.
6.) Take Your Case Out of the Store
In personal injury suits involving large commercial businesses such as a big box retail store there are always many external factors that can affect the circumstances of an accident. Variables like weather conditions, parking lot design, and even customer demographics (elderly customers and young children are at a greater risk) can be overlooked. A good expert’s knowledge will take these factors into account. According to warnings and safety expert CJ Abraham “on days with lots of rain, the staff or consumers may bring in carts that are wet with precipitation. This creates entrances and areas that are wet and slippery for consumers, and the retailer has an affirmative duty to keep these areas safe.”
As Mr. Birnbach points out, it is important for an expert to be aware of these higher at-risk consumer groups and the circumstances that contribute to the increased risk. For example, older individuals’ eyes will not adjust as well to changes in lighting. Thus creating a dangerous condition that may not exist for younger shoppers.
Parking lot safety has also become a concern, with accident rates in big box retail parking lots climbing. Lighting, layout, and curb height are all part of the retailer’s structural scheme, and are subject to various design codes, building codes, and municipal regulations. According to retail safety expert Stephen Melia “a few key factors security professionals should consider when evaluating parking lot security measures are: 1) Review of known criminal activity within a 1-3 mile radius of the premises; 2) maintenance of records of actual criminal activity that occurs on premises; and 3) cooperation with local law enforcement to deter the potential for future criminal activity.”
Additional steps that businesses can take include awareness training for employees. Or even the installation of parking lot cameras and sign-displays to indicate video recording on the premises. The best experts will understand the dynamic relationship between these factors and the big box retailer’s implementation of safety measures.
7.) Project the Right Image
One external factor is the disposition of the jury itself. Of course, a good attorney will be mindful of local attitudes and juror’s prejudices in any case. Therefore the same is true in retail safety cases. Attorney Alan LeVar notes that Juries often have a different perception of big box stores than other retailers “usually, juries have a natural distrust of the plaintiff and his attorney in a personal injury case, but there is a shift of jury distrust towards the corporations behind big box stores.”. However, Alan noted his concern with out-of-state experts who may not be as familiar with the jury or local community. Mr. LeVar also pointed out that many residents in his state of Arkansas are employed by Walmart. They are therefore wary of cases against the retail giant.
Accidents in retail environments are not uncommon. As a result, administrative agencies have articulated national standards which retailers must follow to provide a safe environment for clientele. However in the last two decades, there has been somewhat of an explosion of super-retail stores, or “big box” retailers that almost everyone is familiar with. These include stores such as Costco, Wal-Mart, Target, Home Depot, and Lowes. Accidents occur in these retail giants just as they occur in the smaller stores. However there are several important differences that have significant implications in the litigation context.
The key to providing clients with the best possible representation in these cases is having an expert witness who is cognizant of the uniqueness of the big box retail environment. Several aspects of the expert’s testimony should be carefully tailored to ensure a jury’s understanding of these differences. Like the hybrid retail/warehouse design of big box retailers, impact on damages, complexity of scientific or technical language and external factors such as parking lot safety- just to name a few. Valuable commentary from numerous attorneys and experts with experience in this practice area was compiled into this article to offer strategies for maximizing the value of expert testimony.