Expert Witness Blog
Plaintiff sued Defendant after slipping on a bath mat in a bathroom owned by the latter. Plaintiff hired a walking & working surfaces expert witness to provide testimony in the case and the Defendant filed a motion to exclude. The court denied the motion to exclude.
Facts: This case (Barnes et al v. Malinak et al – United States District Court – Eastern District of Tennessee – August 11th, 2017) involves a slip and fall in a rental unit. The complaint alleges that a bath mat made of cloth, with no rubber backing or similar material that would prevent the mat from slipping on the tile floor, was placed by the bathtub. In addition, the Plaintiff claims that the floor was cleaned with a substance that increased the slipperiness of the floor. The Plaintiff slipped on the bath mat upon coming out of the shower. The Plaintiffs sued for negligence, loss of consortium, and loss of society. The Plaintiffs hired Russell Kendzior (walking & working surfaces expert witness) to provide testimony in this case. The Defendants filed a motion to exclude this expert from testifying.
Discussion: Kendzior opined that the defendants breached the standard of care and failed to provide the Plaintiffs with a proper bath mat for the type of flooring that was in the condominium. He also states that bath towels are not bath mats and should not be used as such. Also, he opines that the Defendant breached the standard of care by not warning the Plaintiffs of the risk of falling due to the slippery floor and the use of a bath towel.
The Defendants argue that Kendizor is not qualified to offer opinions in his report because he is a mathematician and not an engineer or architect. In addition, they argue that he does not have training in terry cloth towels or their use bath mats. They also state that Kendizor’s opinions are not reliable or relevant because he did not see, examine, inspect, or test the floor. Also, they allege that Kendzior’s reasoning and methodology are not scientifically valid and not based on science.
The court opines that Kendzior is qualified to testify in this area. Kendizor is a Walkway Auditor Certificate Holder, and has a license from Texas to perform walkway inspections and he is on a committee that is developing a standard for bath mats.
Regarding reliability, the court opines that Kendizor’s testimony is indeed reliable and that any arguments are best addressed through cross examination. In addition, any arguments related to broad conclusions about standards of care should be brought up during cross examination as well. In addition, the court opines that any concerns about the methodology used by Kendizor to come to his conclusions is best alleviated during cross examination.
Conclusion: The motion to exclude the expert witness testimony of Russell Kendzior is denied.