Bailey v. Menard Inc.

          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 ...