United States District Court, M.D. Louisiana
RULING AND ORDER
BRIAN A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT
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.
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).
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.
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).
Wood's First Opinion
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).
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
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. (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).
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.
Wood's Second, Third, ...