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Schilling v. Petsmart, Inc.

United States District Court, M.D. Louisiana

December 17, 2018

PATRICIA SCHILLING
v.
PETSMART, INC. ET AL.

          RULING AND ORDER

          JUDGE BRIAN A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

         Before the Court is PetSmart, Inc.'s Daubert Motion (Doc. 27) to exclude the testimony of Patricia Schilling's liability expert, Mitchell Wood. For the reasons that follow, the Motion (Doc. 27) is DEFERRED IN PART and DENIED IN PART.

         I. BACKGROUND

         Patricia Schilling sued PetSmart for negligence after she slipped and fell in the vestibule of a PetSmart store on a rainy day. (Doc. 1-1). She retained Mitchell Wood to test whether the vestibule of the store becomes unreasonably slippery when wet. (Doc. 33 at p. 6). Wood tested the floor's static coefficient of friction using an American Slip Meter Digital 825A test meter. (Id.). Based on the tests, Wood opines that (1) PetSmart failed to comply with safety codes; (2) PetSmart's negligent failure to place a warning sign in the vestibule was a "key element" in Plaintiffs fall; (3) the number of floor mats placed in the vestibule "played a significant role" in Plaintiffs fall; and (4) PetSmart's failure to treat the floor with anti-slip additive was a "key element" in Plaintiffs fall. (Doc. 33-2 at p. 6).

         PetSmart moves to exclude Wood's opinions under Federal Rule of Evidence 702 and Daubert u. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). (Doc. 27). Plaintiff opposes. (Doc. 33).

         II. LEGAL STANDARD

         An expert qualified by knowledge, skill, experience, training or education may present opinion testimony if (1) the expert's specialized knowledge will help the jury understand the evidence or determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case. Fed.R.Evid. 702. The party offering expert testimony bears the burden of showing that the testimony is reliable. Sims v. Kia Motors of Am., Inc., 839 F.3d 393, 400 (5th Cir. 2016).

         III. DISCUSSION

         A. Wood's First Opinion

         Wood opines that a "key element" in Plaintiffs fall was PetSmart's "failure to comply with [the] Line Safety Code and the International Building Code to provide a safe means of egress for the patrons at PetSmart." (Doc. 33-2 at p. 6).

         PetSmart asks the Court to exclude the opinion because it is based on unreliable static coefficient of friction tests Wood performed at the PetSmart store using a digital slip meter. (Doc. 27-1 at p. 6). PetSmart asserts that the tests are unreliable because Wood did not follow the procedures prescribed by the manufacturer of the digital slip meter. (Id.). In particular, PetSmart complains that Wood (1) raised his hand several inches above the ground at an upwards angle as he pulled the monofilament line linked to the digital slip meter, when proper testing requires that the hand pulling the line be parallel with the ground; (2) jerked the monofilament line on the digital slip meter before tension could build, when proper testing requires that the tester pull the line by slowly curling his index finger towards his palm; and (3) continued to pull the line after the meter began to move, when proper testing procedure prohibits dragging the meter. (Id. at p. 12). PetSmart submitted a video of Wood performing the tests in support of its characterization. (Doc. 27-2, filed conventionally).

         The Court has reviewed the video and agrees that Wood's testing procedures differ from the procedures prescribed by the manufacturer of the digital slip meter. For example, at the 14 minute 40 second mark and the 20 minute 32 second mark, Wood appears to place his pulling hand several inches above the ground, and he continues to drag the digital slip meter after the meter has registered a reading. (Doc. 27-2, filed conventionally). And at the 25 minute 23 second mark, Wood again fails to place his pulling hand parallel to the ground. (Id.). Plaintiff discounts these differences. (Doc. 33 at p. 9). She counters PetSmart's characterization of Wood's testing with an affidavit from Wood.[1] (Id.). But that affidavit attempts to controvert what is plain from the video: Wood's hand is not parallel to the ground during some tests and Wood consistently drags the digital slip meter. (Doc. 27-2, filed conventionally, at 14:40 and 20:32).

         Although the Court finds discrepancies between the tests Wood performed and the testing procedures prescribed by the meter's manufacturer, the parties have inadequately explained how those discrepancies affect the reliability of the tests. Without that explanation, the Court cannot assess whether Wood has reliably applied static coefficient of friction testing to form his opinion. See Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016) (reversing district court for failing to preliminarily assess the reliability of expert testimony). The Court therefore DEFERS ruling on PetSmart's Daubert Motion as to Wood's first opinion.

         B. Wood's Second, Third, ...


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