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Foster v. Wal-Mart Louisiana, LLC

United States District Court, W.D. Louisiana, Alexandria Division

October 15, 2019

DEVY FOSTER
v.
WAL-MART LOUISIANA, LLC

          PEREZ-MONTES MAG. JUDGE

          MEMORANDUM ORDER

          DEE D. DRELL JUDGE UNITED STATES DISTRICT COURT.

         Before the court are two motions in limine filed by the defendant, Wal-Mart Louisiana, LLC's. Wal-Mart's first motion is a Daubert motion (Doc. 54) which seeks to exclude the testimony of plaintiffs' expert witness, Russell Kendzior, and the second is a motion to exclude various evidence and argument at trial (Doc. 61).

         Daubert Motion

         Wal-Mart seeks to exclude Kendzior from testifying under Federal Rule of Evidence 702 because Kendzior's testimony will not "help the trier of fact to understand the evidence or determine a fact in issue...." We agree.

         An expert may offer an opinion [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. The rule has been interpreted to "permit expert opinion even if the matter is within the competence of the jurors if specialized knowledge will be helpful, as it maybe in particular situations. U.S. v. Wiley, 57 F.3d 1374 (5th Cir.1995), citing 1 McCormick on Evidence §13 at 54 (1992) (footnote omitted). Ms. Foster has not sufficiently explained how Kendzior's testimony will assist the jury in understanding the standards of care. Though she states he will testify regarding the following:

1. "Why the unreasonably dangerous condition was allowed to be present.
2. For many years the retail industry itself has recognized this as an unreasonably dangerous condition.
3. There are widely recognized "proper methods" to address and prevent this type of unreasonably dangerous condition."
4. These "proper methods" consist of reasonable means to eliminate or reduce the unreasonably dangerous condition, AND
5. The defendant did not address the unreasonably dangerous condition the right way.

         none of these questions requires specialized knowledge to answer.

         The instant lawsuit is a standard slip and fall tort case, According to Ms. Foster, August 2016 was a particularly rainy month. On the day she visited her local Wal-Mart, August 12, 2016, three inches of rain fell. Due to a roof leak, a puddle of water accumulated in a well traversed area. Though employees were nearby, no one marked the area as wet nor made attempts to dry the floor. Thus, as she made her way through, she slipped in the water, fell, and injured herself. These alleged facts alone answer much of the questions Ms. Foster wants her expert to answer. The questions that are not answered can be by exercising common sense. There are no facts, nor anything contained in either Wal-Mart's procedures or the standard practices outlined by the American Society of Testing and Materials, that the jury needs assistance interpreting.

         Additionally, the jury instructions that will be provided at the close of evidence furnish the jurors with sufficient guidance regarding the consideration of these factors. As such, enhancement by an expert witness is not necessary and Russell ...


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