Expert Witness Blog
Plaintiff filed suit against defendant related to a slip and fall accident. Plaintiff hired a Slip, Trip & Fall Expert Witness to provide testimony. Defendant filed a motion to exclude this expert from testifying. The court granted the motion to exclude.
Facts: This case (Noftz v. Holiday CVS LLC – United States District Court – Middle District of Florida – June 5th, 2019) involves a slip and fall at the defendant’s place of business. The plaintiff alleges that she slipped and fell after she picked up a carton of milk from a walk-in cooler. The plaintiff claims that she suffered a serious injury to her left leg. The plaintiff alleges that moisture on the floor inside the cooler was tracked outside by shoppers and by employees, making the floor outside of the cooler wet and slippery, causing her to slip and fall. The plaintiff has hired Slip, Trip & Fall Expert Witness Russell Kendzior to provide testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: The defendant argues that Kendzior did not perform an on-site inspection of the store and based his opinions on the testimony of the plaintiff, photographs of the video after the fall, written discovery responses, and a State of Florida Department of Agriculture Inspection Report.
The defendant points to another case (Alsip v. Wal-Mart Stores), which was a slip-and-fall case where Kendzior did not perform any on-site testing, which resulted in the court excluding his expert witness testimony. The court in the present case opines that the lack of on-site testing was not the basis for the exclusion of Kendzior’s testimony in the Alsip case. The court in the Alsip case ruled that Kendzior did not rule out any of possibilities before concluding that a cross walk fell below the standard. Thus, the court in the present case cannot conclude that a failure to perform on-site testing is enough of a basis to exclude Kendzior’s testimony.
The court does note that some of Kendzior’s opinions should be excluded under Daubert and the Federal Rules of Evidence 702 as they are not based on sufficient facts or data. Particularly, he opines that CVS should have used floor matting outside of the cooler door and posted a warning about a wet floor hazard. This opinion, notes the court, is based on his opinion that the store had a common problem with spilled liquids and was tracked outside the cooler.
The court also opines that Kendzior’s opinions that CVS is challenging are not supported by any testimony or anything in the written report. The court opines that many of Kendzior’s opinions are just a recitation of the plaintiff’s own testimony.
Conclusion: The motion to exclude the expert witness testimony of Russell Kendzior is granted