Expert Witness Blog
Plaintiff tripped on a mat while entering defendant’s store and was injured. The plaintiff hired a Walking & Working Surfaces Expert Witness to provide testimony, which the defendant sought to exclude. The court granted the motion to exclude in part and denied it in part.
Facts: This case (Brower v. Sprouts Farmers Market, LLC et al – United States District Court – District of New Mexico – March 23rd, 2018) involves a trip and fall incident. As she was walking into the defendant’s store, she allegedly tripped near the northern border of a mat and subsequently broke her her hip and shoulder. The plaintiff hired Walking & Working Surfaces Expert Witness Russell Kendzior to provide expert testimony in this case. The defendant’s filed a motion to exclude this expert witness testimony
Discussion: Mr. Kendzior put together his report based on his review of surveillance video, portions of the record, discovery, and the incident report. His report states that the plaintiff tripped on something located on the northwest corner of the mat which was placed in the entrance way. In addition, he cited various matting standards from the National Floor Safety Institute and other entities. He concluded that the defendant failed to 1) have appropriate safety procedures and policies; 2) train employees on the placements of the mats; 3) inspect the matting in the store; 4) provide a safe walking surface; and 5) comply with the standards in the industry.
The defendant wishes to exclude the Mr. Kendzior’s expert witness testimony on two grounds; his opinion on causation and failure to maintain a safe entrance way are speculative in nature and do not have a factual basis based on Daubert. The plaintiff alleges that Mr. Kendizior’s testimony is based on sound evidence because it relies on video and witness testimony which provided the material to reach a logical conclusion.
The court disagreed with the defendant’s motion that Mr. Kendzior’s testimony was not reliable or relevant. The court stated that evidence regarding the industry standards and inspections is relevant in this case. The defendant also maintains that Mr. Kendizor’s testimony on the height difference between the mat and the border strip should be excluded because he took the measurements a year after the incident and that he couldn’t quantify the height distance that he measured. The court disagreed again, stating that these arguments go to the weight of the evidence, not the admissibility.
The court does agree with the defendant on one part of the motion to exclude. Mr. Kendzior stated that the plaintiff tripper on “something”, either a buckle in the mat or the border in the mat. The defendant states that there is no factual basis for this argument and that he does not rely on any methodology or other scientific evidence to back up his theory. the court agreed, stating that Mr. Kendizor is not a bio mechanical engineer nor an accident reconstructionist and that his opinions on what caused the fall will not be helpful to the jury. Thus, this portion of the testimony will be excluded.
Conclusion: The motion to exclude the expert witness testimony of Russell Kendzior is granted in part and denied in part.