United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
JOHN
A. R OSS UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on Defendant Menard, Inc.,
d/b/a Menards' Motions for Summary Judgment and
to Exclude the Testimony of Plaintiff's Expert Witness
Jerry Birnbach. (Docs. 37. 40.) Both motions are fully
briefed and ready for disposition.
Background[1]
On
January 23, 2017, Plaintiff was in the Menards store on Oak
Grove Road in Poplar Bluff, Missouri. As he was walking
through the electrical department, Plaintiff tripped and fell
to the ground. To enter the electrical department, patrons
must transition from a polished concrete floor to aisles
carpeted with AstroTurf. In each aisle, a “transition
strip” is laid over the seam between the polished
concrete and the carpet. The two-piece transition strip model
chosen by Menards consists of an aluminum base screwed to the
concrete floor and a rubber insert that connects to the base.
The
electrical department displays a number of lighting fixtures
and ceiling fans suspended from the ceiling of the store.
Plaintiff alleges that he was looking up at the lights and
fans on display when his foot caught a transition strip that
was sticking up higher than it should have been. (Doc. 25.)
He alleges that, when he tripped, he reached out
instinctively and made contact with several unsecured boxes
containing heavy ceiling fans, causing them to fall on his
back as he fell to the floor face-first. (Id.)
Plaintiff alleges that he suffered serious injuries to his
back, head, and other areas, including aggravation of his
pre-existing multiple sclerosis. (Id.) He asserts
that he has incurred medical expenses and lost income, deals
with ongoing pain, and that he will need future medical
treatment, all attributable to Menards' negligence.
(Id.)
In
support of his claim, Plaintiff offers Birnbach's expert
report, which concludes that the strip that Plaintiff tripped
over was as high as 1.5 inches. Birnbach's conclusions
are based on photographs of the transition strip taken by
Plaintiff's counsel. Menards asserts that Plaintiff's
counsel photographed the wrong aisle and that therefore
Birnbach's report must be excluded. (Doc. 38.) As a
result, Menards argues that it is entitled to summary
judgment because Plaintiff cannot prove that the transition
strip was dangerous without expert testimony.
Menards
also argues that its expert, William H. Nelson, personally
examined the aisle where Plaintiff fell and determined that
the actual transition strip on which he tripped complied with
the requirements of the Americans With Disabilities Act of
1990 (“ADA”), 42 U.S.C. §§ 12101-12213.
(Doc. 38.) In addition, Menards argues that Plaintiff cannot
recover because any potential trip risk posed by the
transition strip was open and obvious. (Id.)
Menards'
Motion to Exclude Birnbach's Testimony (Doc. 40)
Because
one of Menards' summary judgment arguments turns on
Plaintiff's lack of admissible expert testimony, the
Court will first address Menards' motion to exclude
Birnbach's testimony.
Legal
Standard
The
federal rules of evidence and related case law require that
an expert be qualified and that the expert's testimony be
both reliable and relevant. See Fed. R. Evid. 702;
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999). An expert may be qualified by “knowledge,
skill, experience, training, or education.” Fed.R.Evid.
702; Kumho Tire Co., 526 U.S. at 150-51. Reliability
hinges on the sufficiency of the facts or data on which the
opinion is based, the dependability of the principles and
methods employed, and the proper application of the
principles and methods to the facts of the case. Fed.R.Evid.
702. If the opinion is based solely or primarily on
experience, the witness must connect the experience to the
conclusion offered, must explain why the experience is a
sufficient basis for the opinion, and must demonstrate the
appropriateness of the application of the experience to the
facts. Fed.R.Evid. 702, Advisory Committee Notes. To be
relevant, the testimony must “assist the trier of fact
to understand the evidence or to determine a fact in
issue.” Fed.R.Evid. 702. Relevance requires the
expert's testimony relate to an issue in the case.
See Daubert, 509 U.S. at 591. “[D]oubts
regarding the usefulness of an expert's testimony”
are resolved in favor of admissibility, Marmo v. Tyson
Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006);
accord Johnson v. Mead Johnson & Co., 754 F.3d
557, 562 (8th Cir. 2014), because “[a]n expert's
opinion should be excluded only if that opinion is so
fundamentally unsupported that it can offer no assistance to
the jury, Synergetics, Inc. v. Hurst, 477 F.3d 949,
956 (8th Cir. 2007) (internal quotation marks and citation
omitted).
Discussion
Menards
argues that Birnbach's report is unreliable, irrelevant,
and unduly prejudicial. (Doc. 41.) In his report, Birnbach
makes four key findings. (See Doc. 44-6.) First, he
concludes that Menards chose a model of transition strip that
does not meet ADA standards. (Doc. 41-2 at 2.) Second, he
concludes that the chosen transition strip is not designed to
withstand the heavy foot traffic it would encounter on the
floor of a large retailer such as Menards. (Id. at
5, Doc. 44-6 at 11.) Third, he concludes that the chosen
transition strip made it impossible for the floor-cleaning
service to maintain the floor abutting the transition, which
left transition strips throughout the lighting department in
various states of disrepair. (Doc. 41-2 at 3.) Fourth, he
opines that the AstroTurf carpeting Menards chose may have a
pile that does not meet ADA standards, which further
compromised the safety of the transition strip's
installation and maintenance. (Id. at 2.) As noted,
Birnbach's opinions are based on measurements and
manipulations of transition strips found in several of the
lighting aisles in the Oak Grove Road Menards store. (Doc.
44-6 (including pictures of multiple AstroTurf-carpeted
aisles).)
The
crux of Menards' argument is that the photos taken by
Plaintiff's counsel-upon which Birnbach relied-depict the
wrong aisle. (Doc. 41.) As such, Menards argues that
Birnbach's opinion is not based on “sufficient
facts or data, ” relates to the condition of transition
strips that are not relevant to Plaintiff's claim, and
invites the jury to find for Plaintiff based on ...