Kirksey v. Schindler Elevator Corporation et al

Filing 138

ORDER denying 99 Motion to Strike opinions and testimony of Rodowicz; granting 100 Motion to Strike opinions and and opinions of surveillance video and portions of police report; granting in part and denying in part 101 Motion to Strike opinion and testimony of Davis Turner as set out. Signed by Chief Judge William H. Steele on 9/20/2016. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TYRA KIRKSEY,
Plaintiff,
v.
SCHINDLER ELEVATOR
CORPORATION, et al.,
Defendants.

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CIVIL ACTION 15-0115-WS-N

ORDER
This matter comes before the Court on plaintiff’s Motion to Exclude as Unreliable the
Testimony and Opinions of Kathleen A. Rodowicz (doc. 99), Motion to Exclude as Unreliable
Lay Testimony and Opinions of Surveillance Video and Portions of Police Report (doc. 100),
and Motion to Exclude as Unreliable Testimony and Opinions of Defendants’ Expert Davis
Turner (doc. 101). The Motions have been briefed and are ripe for disposition.1
I.

Background.
This wrongful death action arises from an incident at the Sears retail store at Bel Air Mall

in Mobile, Alabama, on June 14, 2014. An 11-year old boy named Jakobe Kirksey fell more
than 20 feet to his death over the side of a moving escalator handrail on the second floor of the
store. Jakobe’s mother, Tyra Kirksey, brought a wrongful death lawsuit against Sears, Roebuck
& Co. (the owner/operator of the premises) and Schindler Elevator Corporation (the escalator
manufacturer). Central to plaintiff’s claims is her contention that the spot where Jakobe fell was
an unguarded floor opening that should have had a guardrail or some other form of fall
protection.
1

Defendants submitted responses in opposition to each of these Motions. (See
docs. 108, 109, 110.) Although the applicable briefing schedule (doc. 102) allowed for plaintiff
to file reply briefs on or before August 3, 2016, plaintiff elected not to do so. As such, all three
Motions are taken under submission on the strength of the principal briefs and accompanying
exhibits.

On that basis, plaintiff purports to assert a wrongful death claim against Schindler
pursuant to Alabama Code § 6-5-391 on theories of “common law negligence, common law
wantonness, and also product liability under the Alabama Extended Manufacturer Liability
Doctrine (‘AEMLD’) related to the sale, design, manufacture, and installation of the subject
escalator in 1997.” (Doc. 103, at 2.) Plaintiff also purports to assert a § 6-5-391 claim against
Sears on the theory that “Sears is guilty of common law negligence and/or common law
wantonness relating to the safety of its store.” (Id. at 3.) Defendants have raised affirmative
defenses of contributory negligence, “open and obvious,” and product misuse. (Id. at 4-6.)2
At trial, defendants intend to offer the expert testimony of Kathleen Rodowicz, Ph.D.,
and Davis Turner pursuant to Rule 702 of the Federal Rules of Evidence, as well as certain lay
opinions from representatives of the Mobile Police Department and Alabama Department of
Labor pursuant to Rule 701 of the Federal Rules of Evidence. Via a series of three motions,
plaintiff seeks exclusion of such opinions and testimony.
II.

Governing Legal Principles.
The Federal Rules of Evidence, as construed by the Supreme Court in the landmark case

of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993), “require[] expert scientific evidence to be both reliable and relevant pursuant to Rule
702,” such that it “appropriately assists the trier of fact.” United States v. Henderson, 409 F.3d
1293, 1302 (11th Cir. 2005). In that regard, “[t]he court serves as a gatekeeper, charged with
screening out experts whose methods are untrustworthy or whose expertise is irrelevant to the
issue at hand.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007). This
gatekeeping function is guided by the well-established principle that “[t]he proponent of the
expert testimony carries a substantial burden under Rule 702” to show admissibility of that
testimony by a preponderance of the evidence. Cook ex rel. Estate of Tessier v. Sheriff of
Monroe County, Fla., 402 F.3d 1092, 1107 (11th Cir. 2005); see also Boca Raton Community
Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009) (“The offering
2

In the Joint Pretrial Document, defendants also identify their “Affirmative
Defense that the Alabama Wrongful Death Act Violates United States Constitution.” (Doc. 103,
at 5.) On summary judgment, however, the Court found that defendants’ constitutional objection
fails as a matter of law. (See doc. 85, at 34-41.) As such, this “affirmative defense” is no longer
part of the case and will not be presented to the jury at trial.

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party must show that the opinion meets the Daubert criteria, including reliable methodology and
helpfulness to the factfinder …, by a preponderance of the evidence.”).
As a general proposition, “[i]n determining the admissibility of expert testimony under
Rule 702, a district court considers whether (1) the expert is qualified to testify competently
regarding the matter he intends to address; (2) the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to determine a fact in issue.” United States
v. Douglas, 489 F.3d 1117, 1124-25 (11th Cir. 2007). “While there is inevitably some overlap
among the basic requirements – qualification, reliability, and helpfulness – they remain distinct
concepts and the courts must take care not to conflate them.” Rosenfeld v. Oceana Cruises, Inc.,
654 F.3d 1190, 1193 (11th Cir. 2011) (citation omitted).
In examining the reliability prong, Daubert teaches that the following factors should be
considered: “(1) whether the expert’s methodology has been tested or is capable of being tested;
(2) whether the theory or technique used by the expert has been subjected to peer review and
publication; (3) whether there is a known or potential error rate of the methodology; and (4)
whether the technique has been generally accepted in the relevant scientific community.” Tampa
Bay Water v. HDR Engineering, Inc., 731 F.3d 1171, 1184 (11th Cir. 2013) (citations omitted).
That said, “[t]he rules relating to Daubert issues are not precisely calibrated and must be applied
in case-specific evidentiary circumstances that often defy generalization.” United States v.
Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). For that reason, courts have stressed that the
Daubert inquiry is “a flexible one,” that the Daubert factors are mere guidelines for applying
Rule 702, and that “expert testimony that does not meet all or most of the Daubert factors may
sometimes be admissible” based on the particular circumstances involved. Id. at 1267-68. In
performing a Daubert analysis, the court’s focus must be “solely on principles and methodology,
not on the conclusions that they generate;” indeed, it matters not whether the proposed expert
testimony is scientifically correct, as long as it is shown to be reliable. Allison v. McGhan
Medical Corp., 184 F.3d 1300, 1312 (11th Cir. 1999). Even in the aftermath of Daubert, it
remains true that “vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.” Rosenfeld, 654 F.3d at 1193 (citations omitted). “[I]n most cases,

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objections to the inadequacies of a[n opinion] are more appropriately considered an objection
going to the weight of the evidence rather than its admissibility.” Id. (citations omitted). Thus,
disagreements as to the manner in which an expert performs modeling or analysis may best “be
aired out in front of the jury and tested by the crucible of cross-examination,” without
implicating the Daubert gatekeeping function. Tampa Bay Water, 731 F.3d at 1185.
Importantly, “[o]nce an expert opinion has satisfied Daubert, a court may not exclude the
opinion simply because it believes that the opinion is not – in its view – particularly strong or
persuasive.” Seamon v. Remington Arms Co., 813 F.3d 983, 990 (11th Cir. 2016).
It bears noting that Daubert principles do not bar an expert’s opinion as unreliable merely
because it is grounded in personal knowledge or experience. See, e.g., United States v. Jennings,
599 F.3d 1241, 1248 (11th Cir. 2010) (“A district court may decide that non-scientific expert
testimony is reliable based upon personal knowledge or experience.”) (citation omitted); Maiz v.
Virani, 253 F.3d 641, 669 (11th Cir. 2001) (“there is no question that an expert may still properly
base his testimony on professional study or personal experience”) (citation and internal quotation
marks omitted). “The experiential nature of [an expert]’s expertise does not render his opinions
per se unreliable, equate to lack of methodology, or warrant automatic exclusion of his
testimony.” Continental Motors, Inc. v. Jewell Aircraft, Inc., 2013 WL 5530842, *7 (S.D. Ala.
Oct. 4, 2013). That said, “[i]f the witness is relying solely or primarily on experience, then the
witness must explain how that experience leads to the conclusion reached, why that experience is
a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”
United States v. Augustin, 661 F.3d 1105, 1125 (11th Cir. 2011).
The foregoing principles inform the undersigned’s evaluation of plaintiff’s objections to
the admissibility of opinions articulated by defendants’ proffered experts.
III.

Challenge to Proposed Expert Kathleen Rodowicz.
Among the expert witnesses designated by defendants is Kathleen Rodowicz, Ph.D., P.E.

Defendants indicate in the Joint Pretrial Document that this witness will testify concerning “her
biomechanical analysis of the subject event, including her critique of Plaintiff’s … expert’s
opinion as to alleged prevention of the subject event through ‘guarding.’” (Doc. 103, Exh. 9, at
6.) Dr. Rodowicz’s expert report sets forth specific opinions, including her conclusions that
Jakobe lifted himself up onto the handrail and that extending the silver guardrail along the top

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flat part of the escalator would not have prevented him from falling. (Doc. 99, Exh. C, at 10.)3
In her Motion to Exclude, plaintiff asserts that Dr. Rodowicz’s opinions are “grossly unreliable
and highly prejudicial” because the witness neither was qualified to render certain of her
opinions nor utilized a reliable methodology to formulate such opinions. (Doc. 99, at 2.) Each
category of objection will be addressed in turn.
A.

Plaintiff’s Objections to Qualifications.

According to her CV, Dr. Rodowicz holds both a Bachelor of Science degree and a Ph.D.
in mechanical engineering. Her work focuses on “the biomechanics of injuries, with expertise in
the areas of human injury tolerance, injury mechanics, and occupant kinematics.” (Doc. 99, Exh.
B, at 1.) In this capacity, she “performs biomechanical accident reconstructions and evaluates
injury mechanisms and injury potential in motor vehicle, sporting, industrial, and slip-and-fall
accidents,” and also analyzes from a biomechanical standpoint the design of consumer and
industrial products. (Id.) “Dr. Rodowicz’s interdisciplinary research has focused on problems
that lie along the interface of engineering and medical technologies.” (Id.) She has published
and presented research findings at professional conferences and has held an academic
appointment at Drexel University.
In an objection strikingly reminiscent of defendants’ criticisms leveled at certain of
plaintiff’s experts, Kirksey insists that Dr. Rodowicz cannot satisfy the qualification prong of the
Rule 702 admissibility test because she “has not received any training or education specific to
escalators,” has focused her work on automobile accidents and sports injuries, “has no
involvement with any escalator industry group or organization,” and “is not sufficiently qualified
or experienced with falls from heights.” (Doc. 99, at 6.)4 Just as defendants did in their
3

One point of clarification is necessary at the outset. In her Motion to Exclude,
Kirksey complains that Dr. Rodowicz has offered an opinion “that Jakobe intentionally placed
himself in danger.” (Doc. 99, at 6.) Nowhere in this witness’s report or deposition does the
Court find any opinions or conclusions about Jakobe’s intent. Moreover, Dr. Rodowicz has
expressly disclaimed any opinions concerning Jakobe’s intentions. (Doc. 108, Exh. A, ¶ 14 (“I
have never opined on Kirksey’s intentions, only that … he was not involuntarily grabbed or
‘pulled’ by the moving handrail.”).) Framing this proposed testimony as a conclusion about
what Jakobe’s intentions were is thus inaccurate.
4

Plaintiff’s objection echoes defendants’ objections lodged against plaintiff’s own
experts. For example, in interposing admissibility objections to the opinions of plaintiff’s expert
Traci Campbell, defendants protested that Campbell “has never worked at any elevator or
(Continued)
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corresponding objections interposed against plaintiff’s experts, plaintiff reads the “qualification”
requirement of Rule 702 too stringently. “An expert is not necessarily unqualified simply
because [her] experience does not precisely match the matter at hand. … [S]o long as the expert
is minimally qualified, objections to the level of the expert’s expertise go to credibility and
weight, not admissibility.” Waite v. All Acquisition Corp., --- F. Supp.3d ----, 2016 WL
4257516, *2 (S.D. Fla. July 11, 2016) (citations omitted).5 Always, the critical question for
qualification is whether the putative expert has such knowledge, skill, experience, training or
education that her opinion will aid the finder of fact in understanding the evidence.
The record shows that Dr. Rodowicz has education, training and experience as a
biomechanical engineer, and that her areas of expertise include human injury tolerance, occupant
kinematics, rigid body dynamics, biomechanical accident reconstruction and analysis of
traumatic injuries. Her expert opinions in this case apply these biomechanical and engineering
principles to the circumstances of Jakobe’s fall. There is no indication, and no reason to believe,
that Dr. Rodowicz is unqualified to apply such principles to the facts of the case without
expertise specific to escalators, membership in an escalator industry group, or experience
studying falls from heights. Simply put, as an expert in biomechanical analyses of accidents and
human injuries, Dr. Rodowicz is qualified to offer opinions on topics such as how Jakobe came
to be seated on the moving handrail of the escalator and whether additional protective guarding

escalator company, has not consulted with any elevator or escalator companies, and has never
served on any committees specifically dealing with escalator issues.” (Doc. 90, at 17.) Thus, in
contemporaneously filed Daubert briefs, each of Kirksey and the defendants argues both sides of
precisely the same evidentiary question, their positions shifting depending on whether the expert
witness was retained by that party or the other party.
5

See also Kipperman v. Onex Corp., 411 B.R. 805, 843 (N.D. Ga. 2009) (“an
expert’s training does not always need to be narrowly tailored to match the exact point of dispute
in a case”) (citations omitted); Hendrix v. Evenflo Co., 255 F.R.D. 568, 578 (N.D. Fla. 2009) (“as
to qualification, the standard for admissibility is not stringent,” and “so long as the expert is at
least minimally qualified, gaps in his qualifications generally will not preclude admission of his
testimony”); Trilink Saw Chain, LLC v. Blount, Inc., 583 F. Supp.2d 1293, 1304 (N.D. Ga. 2008)
(“an expert with the education or background to permit him to analyze a given set of
circumstances … can through reading, calculations, and reasoning from known scientific
principles make himself very much an expert in [regard to] the particular product even though he
has not had actual experience with the product”) (citations and internal quotation marks omitted).

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would have prevented his fall. Given the low threshold created by the qualification prong of
Rule 702 and Dr. Rodowicz’s clear expertise in the field of biomechanical engineering, she can
reliably apply that expertise to the facts and circumstances of Jakobe’s fall, despite not being an
escalator expert. The same reasoning and result held true for plaintiff’s expert Traci Campbell.
Accordingly, any criticism by plaintiff that Dr. Rodowicz lacks experience specific to the
escalator industry goes to the persuasiveness, weight and credibility of her opinions, not their
admissibility.
B.

Plaintiff’s Objections to Opinions.

Next, plaintiff objects to the admissibility of Dr. Rodowicz’s expert testimony under the
reliability prong of Rule 702. To recap, this witness summarized her opinions as follows: (i)
Jakobe positioned himself, lifted himself, and transferred his weight onto the moving handrail;
(ii) Jakobe would not have fallen over the side of the escalator if he had not positioned, lifted and
transferred his weight in that manner; (iii) Jakobe “was not pulled by the handrail by simply
backing into the railing;” and (iv) “[g]iven Jakobe Kirksey’s position on the moving handrail,
even if the guardrail had been extended, he still would have fallen over the railing.” (Doc. 99,
Exh. C, at 10.)
Kirksey argues that Daubert principles demand exclusion of these opinions because Dr.
Rodowicz failed to use a reliable methodology in formulating them. In particular, plaintiff
characterizes Dr. Rodowicz’s methodology as being that she “simply reviewed the video” of the
accident, “jump[ed] to these conclusions,” and “used a 3D animation program … to illustrate her
preconceived opinions” under the guise of simulation or analysis. (Doc. 99, at 6.) Plaintiff’s
position is that Dr. Rodowicz “simply ‘eyeballed’ the video and created an animation to match.”
(Id. at 8.) Defendants counter that the 3D animation model prepared by Dr. Rodowicz is mere
“demonstrative evidence” to “explain[] Rodowicz’s testimony” and is therefore “not required to
meet Daubert standards.” (Doc. 108, at 9.)
Review of the parties’ briefs, as well as Dr. Rodowicz’s report and affidavit, suggests a
measure of confusion on both sides as to what her methodologies actually were. Contrary to
defendants’ argument, the 3D animation model is not a mere demonstrative exhibit, but is rather

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part and parcel of the witness’s analysis.6 But contrary to plaintiff’s argument, the 3D animation
model was not simply whipped up by Dr. Rodowicz out of thin air under pretense of scientific
method to illustrate speculative conclusions she had already reached. According to the record,
Dr. Rodowicz’s methodology included the following elements: She engaged in a frame-byframe analysis of the surveillance video of the accident, conducted a site inspection and took
measurements of the Sears escalator, performed a detailed anthropometric and biomechanical
analysis, calculated Jakobe’s center of gravity using biomechanical literature and Jakobe’s
medical records, assessed the position of Jakobe’s center of gravity relative to the fixed guardrail
from a seated position on the moving handrail, and created a 3D model of the accident using a
camera-matching technique to help understand Jakobe’s interaction with the escalator before and
during the fall. (Doc. 99, Exh. C, at 4-7; doc. 108, Exh. A, ¶¶ 16-30.) This methodology extends
well beyond “simply ‘eyeballing’ the video” as plaintiff asserts in her Motion to Exclude.
Two specific criticisms advanced by Kirksey against Dr. Rodowicz’s methodology are
likewise unavailing. First, Kirksey objects that the “camera matching” technique is not
described in sufficient detail in the expert report to explain how Dr. Rodowicz did it. (Doc. 99,
at 7-8.) Of course, plaintiff’s counsel could have explored this topic with the witness in
painstaking detail at her deposition. More fundamentally, Dr. Rodowicz has explained that she
used data collected during her site inspection to ensure that “the location of the camera within the
3D model matched the location of the surveillance camera,” such that the view in the 3D model
6

As Dr. Rodowicz herself explained, “The 3D model … is a tool I used, based on
the physical data, to better understand Kirksey’s interactions with the subject escalator and his
environment prior to and during his fall. … [I]t is not uncommon to utilize a 3D modeling
software program … to analyze geometric relationships.” (Doc. 108, Exh. A, ¶ 29.) Similarly,
in her report, Dr. Rodowicz indicated that “the 3D model was camera matched to specific frames
within the surveillance video to evaluate the kinematics of Jakobe prior to and during his fall
from the subject escalator. Using the 3D model in conjunction with the surveillance video, it
was determined that Jakobe lifted himself onto the handrail ….” (Doc. 99, Exh. C, at 6-7.) The
report is peppered with statements that certain findings were made by reference to the
surveillance video and the 3D model, or that other findings were consistent with the 3D model.
In light of Dr. Rodowicz’s own explanation of her methodology, defendants’ efforts to
characterize the 3D animation as just a demonstrative exhibit to explain her testimony are
inaccurate. The modeling process is subject to Daubert standards because it was plainly part of
the witness’s methodology and analysis, as opposed to being a mere demonstrative aid to
illustrate her findings to a jury.

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would match that in the video. (Doc. 108, Exh. A, ¶¶ 25-27, 30.) To the extent that plaintiff
quarrels with the accuracy of particular dimensions of that matching (such as camera angle or
distance), such criticisms and questions may be appropriately raised in cross-examination and go
only to the weight or credibility of the evidence, not its admissibility.7 Second, plaintiff
challenges Dr. Rodowicz’s opinions concerning Jakobe’s center of gravity by stating that she
“failed to perform any reliable calculations or analyses” on that topic. (Doc. 99, at 9.) In fact,
defendants have shown that Dr. Rodowicz utilized a specific, reliable methodology in computing
Jakobe’s center of gravity in a seated position, based on biomechanical literature and Jakobe’s
own anthropometry as detailed in his medical records. (Doc. 108, Exh. A, ¶¶ 16-17; doc. 108,
Exh. C, at 47-48.)8 Insofar as plaintiff objects that Dr. Rodowicz failed to consider “how
Jakobe’s center of gravity would have interacted with a guardrail” (doc. 99, at 9), the witness has
explained in clear terms how she did consider that interaction.9 Plaintiff’s disagreement with Dr.
Rodowicz’s conclusions is appropriately channeled through cross-examination, not exclusion.
7

Plaintiff’s threshold objection that “camera matching” lacks acceptance in the
relevant scientific community has been effectively rebutted by defendants’ showing that this
technique has been used in photogrammetry for decades, as documented by peer-reviewed
literature and technical papers. (Doc. 108, Exh. A, ¶ 24.)
8

It also bears noting that plaintiff’s own industrial engineering / accident
reconstruction expert, Traci Campbell, endorsed and accepted Dr. Rodowicz’s estimates of
Jakobe’s center of gravity without dissent. When asked about Dr. Rodowicz’s center of gravity
calculations in her rebuttal deposition, Campbell testified, “I’m giving credit for those numbers.
…. I looked at … what those numbers would translate to in terms of his body position, and
agreed that those were in the same areas that I would have said that they were as well, or that I
would have calculated that they were. So, yes, I did not have any issue with those.” (Doc. 90,
Exh. 8, at 56.) In light of plaintiff’s expert’s endorsement, plaintiff’s Daubert challenge directed
at those calculations is difficult to fathom.
9

In particular, Dr. Rodowicz calculated Jakobe’s seated center of gravity,
measured the height of the escalator handrail and fixed guardrail that plaintiff argues should have
been extended along the entire flat part of the escalator, and determined that “his CG was above
the top of the fixed guardrail.” (Doc. 108, Exh. A, ¶ 17.) Moreover, Dr. Rodowicz took into
account that surveillance video showed Jakobe lifting his arms, thereby raising his center of
gravity by approximately 2.5 inches and reinforcing her conclusion that his center of gravity
would have been above the height of any such extended guardrail, such that the guarding would
not have prevented his fall. (Id., ¶ 18.) Plaintiff faults Dr. Rodowicz for failing “to attempt a
calculation of a moving center [of] gravity” (doc. 99, at 10); however, Dr. Rodowicz explains her
opinion that such calculations are unnecessary because Jakobe’s movements would have further
(Continued)
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Finally, plaintiff asserts as an alternative ground for her Motion to Exclude that Dr.
Rodowicz’s testimony should be excluded pursuant to Rule 403, Fed.R.Evid. That rule allows
for exclusion of otherwise relevant evidence “if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Id. The
Eleventh Circuit has recognized that Rule 403 is “an extraordinary remedy which the district
court should invoke sparingly, and the balance … should be struck in favor of admissibility.”
United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003) (citations and internal marks omitted).
Here, the risk of unfair prejudice, confusion or misleading the jury is low. The Court has already
determined that Dr. Rodowicz’s challenged opinions are supported by reliable methodology.
The limitations in the 3D model she used may be clearly exposed via cross-examination and
other witnesses. And plaintiff’s expressed fears of unfair prejudice or confusion flowing from
testimony “that Jakobe intentionally placed himself on the escalator handrail” (doc. 99, at 11) are
unfounded because Dr. Rodowicz will not offer any such opinions. The extraordinary remedy of
Rule 403 exclusion is not appropriate here.
IV.

Challenge to Lay Opinions of Surveillance Video.
Not surprisingly, in the immediate aftermath of Jakobe’s fall, state and local authorities

were called to the Sears store at Bel Air Mall to investigate the accident. Among the individuals
who reported to the scene were Mobile Police Department Sergeant Jeremy Franks, Mobile
Police Department Detective Lance Deleston, and Alabama Department of Labor Deputy

raised his center of gravity above and over that guardrail. (Doc. 108, Exh. A, ¶ 21.) The Court
cannot say that such an opinion is so speculative or lacking in Daubert reliability indicia that it
must be barred from the jury’s consideration. Also, Dr. Rodowicz is sharply critical of the
moving center of gravity calculations performed by plaintiff’s expert Campbell. (Id., ¶ 2.) In
sum, the disagreement between the parties’ expert witnesses as to where Jakobe’s center of
gravity would have been in relation to an extended guardrail is a classic “battle-of-experts”
subject to be resolved at trial, rather than via exclusion of one side’s evidence. As for plaintiff’s
complaint that Dr. Rodowicz’s “opinions ignore what protection would have been provided by
any guarding taller than the 42-inch minimum height” (doc. 99, at 2 n.1), that criticism goes not
to Daubert factors at all but merely points out limitations in defendants’ expert opinions as to
particular, hypothetical protective measures. That Dr. Rodowicz may not have opined about the
efficacy of guarding taller than 42 inches does not reasonably imply that she should be barred
from testifying about the efficacy of 42-inch guarding.

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Inspector Marvin J. Byrum. In the course of their investigations, Sgt. Franks, Det. Deleston and
Inspector Byrum each had occasion to review surveillance video of the accident. That same
video will be shown to the jury at trial.
In both written reports and deposition testimony, these witnesses stated their perceptions
about what the surveillance video depicted. In an Alabama Uniform Incident / Offense Report,
Sgt. Franks wrote that the video “shows the juvenile lean against the top of his handrail. Then, it
appears he tried to set [sic] up on the top of the rail that was in motion when he falls over ….”
(Doc. 100, Exh. A, at 2.) Similarly, in his written narrative of the incident, Det. Deleston
described the video as follows: “The video showed the juvenile attempting to sit on the railing of
the escalator and while doing so, he fell over the rail of the escalator.” (Id. at 6.) And Inspector
Byrum’s written account of the incident was that Jakobe “sat on the escalator rail and
immediately lost his balance causing him to fall.” (Doc. 100, Exh. B.) These witnesses testified
similarly in their depositions.10
Defendants plan to introduce into evidence at trial these witnesses’ impressions of the
surveillance video. Plaintiff now moves to exclude such evidence as inadmissible lay opinion
testimony. Everyone, including the witnesses themselves, agrees that Sgt. Franks, Det. Deleston
and Inspector Byrum are not experts in the areas of accident reconstruction, biomechanics,
kinematics, human kinesiology or escalator accidents.11 Nonetheless, defendants maintain that
that this testimony is admissible under Rule 701 of the Federal Rules of Evidence.
By rule, a lay witness may testify in the form of an opinion only if such opinion is both
“rationally based on the witness’s perception” and “helpful to clearly understanding the witness’s
10

Det. Deleston testified, “From what I saw in the video was Jakobe Kirksey was
trying to sit down, … [a]nd when he went to sit down, when he went to go sit down on top of the
wall, he went back – reached back to put his hand back on the wall, and then that’s when he went
down.” (Doc. 109, Exh. A, at 25.) Inspector Byrum testified that “[i]t was a video of the victim
getting up on the handrail, and as soon as he cleared the barrier, he lost his balance and fell.”
(Doc. 109, Exh. B, at 67.)
11

Most notably, when asked in his deposition if he was testifying as an expert in
reconstructing the accident from video, Det. Deleston responded, “I’m not an expert at all.”
(Doc. 100, Exh. D, at 49.) And both Sgt. Franks and Inspector Byrum acknowledged that they
do not hold themselves out as experts in accident reconstruction, nor do they have expertise
relating to escalator accidents. (Doc. 100, Exh. C, at 33; doc. 100, Exh. E, at 94.)

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testimony or to determining a fact in issue.” Rule 701(a)-(b), Fed.R.Evid.; see also United States
v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011).12 The investigating officers and inspector
each viewed the surveillance video with his own eyes; therefore, each witness’s testimony about
what the video showed would plainly have a rational basis in his own perception, so as to satisfy
Rule 701(a). However, the “helpful” requirement of Rule 701(b) is another story.
As noted, the surveillance video will be in evidence at trial. It will be published to the
jury. Jurors will view it themselves, probably numerous times. The problem, as plaintiff frames
it, is that “[t]he witnesses, with nothing other than lay qualifications, simply reviewed the video
and concluded that Jakobe intentionally placed himself on [the] escalator handrail.” (Doc. 100,
at 5.) Of course, members of the jury can review the video at trial and draw their own
conclusions about what it depicts. In other words, the lay opinions offered by Sgt. Franks, Det.
Deleston and Inspector Byrum as to their perceptions of Jakobe’s actions in the video would not
be helpful to the jury because the jury will be perfectly capable of watching the video and
reaching an independent conclusion based on the evidence presented. The Court finds that these
witnesses’ opinions about what they observed in the surveillance video would not assist the jury
in understanding the witnesses’ testimony or determining a fact in issue; therefore, such lay
opinions are inadmissible pursuant to Rule 701(b).
Defendants’ arguments to the contrary do not alter this conclusion. Defendants cite
United States v. Pierce, 136 F.3d 770 (11th Cir. 1998), for the proposition that “[o]ther courts
have approved witness opinions based on a video or photograph under Rule 701.” (Doc. 109, at
5.) But Pierce actually highlights the reasons why the subject lay opinions are inadmissible here.
In Pierce, the Eleventh Circuit considered the admissibility of lay opinion testimony identifying
the defendant as the person depicted in a bank surveillance photograph. The defendant argued
that “the lay opinion identification testimony was not helpful because the witnesses were no
better equipped than the jury to compare Pierce’s appearance at trial with the appearance of the
12

Rule 701 further provides that such lay opinions are admissible only if they are
“not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Rule 701(c), Fed.R.Evid.; see also Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping
Co., 320 F.3d 1213, 1222 (11th Cir. 2003) (explaining that subsection (c) was added to Rule 701
in order to “eliminate the risk that the reliability requirements set forth in Rule 702 will be
evaded through the simple expedient of proffering an expert in lay witness clothing”) (citation
omitted). Subsection (c) is not in dispute here, and need not be addressed.

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individual depicted in the surveillance photograph.” Pierce, 136 F.3d at 773. The Pierce court
found the objection to be meritless, explaining that “lay opinion identification testimony may be
helpful to the jury where, as here, there is some basis for concluding that the witness is more
likely to correctly identify the defendant from the photograph than is the jury.” Id. at 774
(citations and internal quotation marks omitted). The critical point is that the Rule 701(b)
“helpfulness” requirement is satisfied as to lay opinions of video or photographic evidence only
where the witness is better able to observe, understand or interpret the contents of that video or
photograph than the jury is.13
Here, there is simply no reason to believe that Sgt. Franks, Det. Deleston, or Inspector
Byrum had any comparative advantage in their viewing of the surveillance video that would
allow them to perceive details that a jury might miss, to understand or absorb its contents more
effectively than a jury could do, or to interpret the images on that video more skillfully than a
jury might be able. For aught the record shows, these witnesses are no better equipped to view
13

This principle is well-settled in federal appellate jurisprudence. See, e.g., United
States v. Houston, 813 F.3d 282, 291-92 (6th Cir. 2016) (“Federal Rule of Evidence 701 permits a
lay witness to identify a defendant in a photograph when the witness is more likely than the jury
to identify the individual,” on the grounds that “someone who is personally familiar with an
individual is presumptively better able to identify the individual in a photograph than a juror”);
United States v. Sanchez, 789 F.3d 827, 837 (8th Cir. 2015) (“Under Federal Rule of Evidence
701, a witness’s opinion concerning the identity of a person depicted in a surveillance
photograph is admissible if there is some basis for concluding that the witness is more likely to
correctly identify the defendant from the photograph than is the jury.”) (citations and internal
marks omitted); United States v. Garcia-Ortiz, 528 F.3d 74, 79-80 (1st Cir. 2008) (district court
erred in allowing government witness to testify that defendant looked like man in photograph,
where witness “was no more familiar with the defendant than the jury,” witness “improperly
testified about a non-technical subject which was not beyond the purview of the jury,” and “[t]he
jury was perfectly capable of drawing its own independent conclusion based on the evidence
presented”); United States v. Begay, 42 F.3d 486, 502-03 (9th Cir. 1994) (officer’s narrative of
enhanced video shown to jury depicting a “tremendous array of events all occurring
simultaneously” satisfied Rule 701 “helpfulness” requirement because that officer had spent over
100 hours viewing the video and his testimony “concerning which persons were engaged in what
conduct at any given moment could help the jury discern correctly and efficiently the events
depicted in the videotape”); United States v. Muhammad, 512 Fed.Appx. 154, 161 (3rd Cir. Jan.
31, 2013) (witness’s description of still images from surveillance video was helpful “in allowing
the jury to understand the security footage in terms of the angles in which the security cameras
were oriented in the bank, what features of the bank were depicted, and identifying a bank
employee”).

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and analyze the surveillance video than the jury will be.14 Accordingly, their lay opinions about
what the video shows are not helpful to a jury, and are inadmissible under Rule 701.
In a last-ditch effort to ward off exclusion, defendants invoke the “helpful to clearly
understanding the witness’s testimony” prong of Rule 701(b). Defendants explain that these
witnesses’ observations of the surveillance video “are fundamental to their testimony regarding
the investigations of the accident,” and that the jury may be confused or may reject or
misunderstand their investigative conclusions (i.e., “that the fall was not caused by foul play and
that the escalator was operating normally”) if these witnesses “cannot testify as to how they
reached their ultimate conclusion of their authorized investigations.” (Doc. 109, at 2, 4.)
Defendants’ fear is misplaced. These witnesses are, of course, free to testify about what they did
in investigating Jakobe’s fall and how they reached their conclusions. They can testify that they
went to the Sears security office and viewed the surveillance video, and that they relied on the
video in reaching their conclusions of no foul play and normal escalator operation. They can
testify that their investigations, including the video, revealed no evidence of foul play and no
evidence of abnormal operation of the escalator. They simply cannot tell the jury what they
perceived the video as showing Jakobe do or not do. Under the circumstances, having these
witnesses describe their specific perceptions about what the surveillance video depicts with
respect to Jakobe’s conduct would not be helpful to a clear understanding of their investigative
conclusions concerning lack of foul play or escalator malfunction.
For all of these reasons, plaintiff’s Motion to Exclude (doc. 100) is granted as to any
testimony or written opinions by Sgt. Franks, Det. Deleston or Inspector Byrum about the
conduct of Jakobe Kirksey as depicted on the surveillance video.
V.

Challenge to Proposed Expert Davis Turner.
Finally, plaintiff moves to exclude eight enumerated opinions offered by defense expert

Davis L. Turner. (Doc. 101, ¶ 2(a)-(h).) The record reflects that Turner is an electrical engineer
by training who runs an elevator consulting firm providing litigation support, consulting and
expert services in the elevator/escalator industry; and that he is heavily involved in the
14

In his deposition, Sgt. Franks agreed that “anyone who sees the video can reach
their own conclusion about what happened.” (Doc. 100, Exh. C, at 33.) Det. Deleston made a
similar acknowledgment. (Doc. 100, Exh. D, at 49.)

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development of safety codes for escalators and elevators. (Doc. 101, Exh. A, § 1.0; doc. 110,
Exh. A, ¶ 5.) In the Joint Pretrial Document, defendants state that Turner will offer expert
testimony at trial concerning “the escalator codes applicable to the subject escalator, its
compliance with the same, and that additional guarding was not necessary for the subject
escalator.” (Doc. 103, Exh. 8, at 10.) However, in his expert report, Turner sets forth opinions
on various other topics as well. Plaintiff’s Motion to Exclude seeks exclusion of a subset of
eight opinions identified in Turner’s report, on the grounds that such opinions “go wildly beyond
any arguable area of expertise that he may have” and that he “has done nothing more than
‘spitball’ some opinions.” (Doc. 101, ¶¶ 2, 4.) The Court will consider each of the eight
challenged opinions in turn.
First, Kirksey objects to Turner’s opinions that Jakobe was “unattended” at the time of
his fall from the Sears escalator and that Jakobe engaged in a series of “intentional movements”
to mount the moving handrail. (Doc. 101, Exh. A, §§ 4.3-4.3.5, 6.5.) With respect to Jakobe
being “unattended,” Turner indicates that he “based this opinion on the surveillance video as
well as on the facts in this case.” (Doc. 110, Exh. A, ¶ 7.) Defendants have identified no
particular expertise that Turner has in the areas of interpretation of surveillance video or
assessment of whether a child is attended or unattended. These are not expert opinions at all, but
are instead slanted statements of fact. Such testimony would not be helpful to the jury within the
meaning of Rule 702 because nothing in Turner’s qualifications gives him any special insights or
skill in determining whether Jakobe was unattended at the time of his fall. As for whether
Jakobe engaged in “intentional movements,” again this opinion falls squarely outside Turner’s
documented expertise. Turner admits that he is neither a kinematics expert nor an accident
reconstruction expert. (Doc. 101, Exh. B, at 132.) He has no special ken to opine as to how
Jakobe came to be seated on the escalator handrail; thus, his opinions about his own
interpretation of the video reflecting “intentional movements” by Jakobe are not helpful to the
jury because they are well beyond the scope of his expertise. The Motion to Exclude is granted
as to these opinions.
Second, Kirksey objects to Turner’s opinion that “the centerline of [Jakobe’s] buttocks is
approximately 29.5 inches (half his total height) vertically above the escalator floor plate on
which he is standing.” (Doc. 101, Exh. A, § 4.3.5.) When asked in his deposition about the
source of this opinion, Turner testified that it was “[b]ased just on some knowledge that I’ve

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gained through the years that your midpoint of your body is approximately hip height.” (Doc.
101, Exh. B, at 124.) In an affidavit filed in response to the Motion to Exclude, Turner attempts
to shore up this opinion by stating that it is actually based on anthropometric data he encountered
while working on the ASME A17.7 Committee for the Performance Based Safety Code. (Doc.
110, Exh. A, ¶ 10.a.) The problem, however, is that nowhere in the record does Turner display
any expertise in the analysis, interpretation or application of anthropometric data. The fact that
he may have seen some numbers while working on an escalator safety committee does not
qualify him to render expert opinions applying such data to Jakobe’s physiology, particularly in
the absence of demonstrated medical, biomechanical, or kinematic expertise.15 Simply stated,
defendants have not shown that opinions about the centerline of Jakobe’s buttocks lie within the
realm of this witness’s expertise; therefore, Turner will not be allowed to offer such opinions to
the jury.
Third, plaintiff takes aim at Turner’s opinions concerning the Sears escalator’s
compliance with building code requirements. In his report, Turner wrote that “[t]he subject
escalator complied with applicable building code requirements at the time of the incident on June
14, 2014.” (Doc. 101, Exh. A, § 5.2.) Turner went on to specify why, in his opinion, the
building code’s requirement for guarding of open sided walking surfaces does not apply to
escalators. (Id., §§ 6.6-6.7.) It appears that plaintiff’s objection on this point stems from
Turner’s deposition testimony that he had never served on a building code committee, had never
held himself out “as an expert on a Building Code” and had never “been hired to offer any expert
opinions relating to the Building Code.” (Doc. 101, Exh. B, at 116.) But in the very same
deposition excerpt, Turner testified that he had been an admitted as an expert witness on a
building code issue “as it relates to elevators and escalators.” (Id.) The point is simple. Turner
is not an expert on building codes generally; however, his CV demonstrates expertise in

15

It is far from clear from the record that Turner even reviewed that data. After all,
he testified that his opinion on the centerline of Jakobe’s buttocks was “not based on
anthropometric data that I might have reviewed but I didn’t review. It’s just my knowledge.”
(Doc. 101, Exh. B, at 124.) In light of this admission, defendants’ attempt to bolster this opinion
after the fact by referencing the witness’s work on the ASME A17.7 Committee falls short.

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application of building codes to escalators and elevators.16 In light of that expertise, and in the
absence of any further elaboration of the precise nature of plaintiff’s objection, the Court will
allow Turner to testify as to whether the Sears escalator did or did not comply with the
applicable building code. Such opinions appear to satisfy Daubert reliability criteria and the
other prerequisites for admissibility under Rule 702.
Fourth, plaintiff objects to Turner’s opinion that “[t]he escalator was well maintained.”
(Doc. 101, Exh. A, § 6.1.) Turner never inspected the Sears escalator, even though he
acknowledged that it is his “preference” to do so and that he has inspected the scene in all other
cases in which he has testified. (Doc. 101, Exh. B, at 123-24.) The obvious question is how this
witness can reliably opine that the escalator was “well maintained” if he never saw it.
Defendants argue that Turner can properly give such an opinion “[b]ecause maintenance was not
a contributing factor to Master Kirksey’s accident and those maintenance items identified after
the incident were the subject of routine care and maintenance.” (Doc. 110, at 8.) The logic of
this contention is opaque. That a person fell off an escalator for reasons unrelated to
maintenance says nothing about whether the escalator was well maintained or not. And the fact
that deficiencies identified on the escalator “were the subject of routine care and maintenance”
does not reasonably yield a conclusion that the escalator was well maintained; to the contrary, it
suggests that such “routine care and maintenance” had not been done, else those deficiencies
would not have been observed. Based on the information before the Court, it does not appear
16

Turner’s CV documents his 20 years of experience providing “a broad range of
elevator and escalator related services to the elevator industry, building managers, risk managers,
architects, engineers, building designers, owners and the legal profession.” (Doc. 101, Exh. A,
Att. 2, at 3.) Such services include “Preconstruction project planning and budgeting,” “Elevator
and escalator system design integrated into the building structure,” “Technical support with
emphasis on … Codes and standards … [and] Design.” (Id.) The compliance vel non of a
particular escalator design with the governing building code would fit neatly within these
documented specialties. Given the witness’s experience in these areas, coupled with his
involvement in developing safety codes for escalators, the Court finds that Turner meets the low
hurdle of being qualified to render opinions on the application of the building code to the Sears
escalator, notwithstanding his disclaimer of expertise in building codes generally. He may rely
on his knowledge and experience to form opinions as to the Sears escalator’s compliance with
the building code, and such opinions will be helpful to jurors who lack such knowledge and
experience for themselves. The Court is confident that plaintiff’s counsel will engage in any
appropriate cross-examination of the witness as to the limits of his knowledge of and familiarity
with building codes.

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that Turner may reliably offer an expert opinion that the Sears escalator was well maintained.
The Motion to Exclude will be granted as to that specific opinion.
Fifth, plaintiff takes issue with Turner’s opinion that “[i]f a guardrail is required it is the
responsibility of the building designer/architect to specify such and for a subcontractor other than
the escalator installer to provide the guardrail.” (Doc. 101, Exh. A, § 6.3.) The basis of
Kirksey’s objection is unclear. After all, Turner has decades of experience as a consultant to the
elevator/escalator industry, including substantial work with architects, building managers,
building designers, engineers and owners. He has consulted in areas of escalator system design,
preconstruction project planning, technical/product planning, and technical support with respect
to codes and standards, product safety, and design. Based on this wealth of real-world
experience, Turner may offer expert opinions at trial as to which actor or actors, in his
experience, bear responsibility for providing guardrails for escalators.17 The Court reached an
analogous conclusion in overruling defendants’ objection to plaintiff’s expert Joseph Stabler’s
experience-based opinion that escalator installers are responsible for ensuring compliance with
code requirements. Similar reasoning and result attach here. Turner may reliably testify based
on his own experience doing system design for escalators that the responsibility for specifying
guardrails would rest with the design architect, not with the escalator installer.
Sixth, Turner’s report sets forth a gratuitous opinion that “[t]he probability of Master
Kirksey falling over the side of the escalator would have been greatly reduced had he had
appropriate adult supervision.” (Doc. 101, Exh. A, § 6.4.) Plaintiff objects. For the same
reasons that Turner is not qualified to offer expert opinions that Jakobe was “unattended” at the
time of his fall, he is not qualified to offer expert opinions as to whether there was “appropriate
adult supervision” of Jakobe at that moment. This witness has not been shown to possess any
special training, education or experience that would render him any more skilled than the
average juror to ascertain from the surveillance video and other evidence in this case whether
Jakobe was receiving “appropriate adult supervision” when the accident took place. The Motion
to Exclude will be granted as to this opinion.
17

Turner has made clear that this opinion is grounded in his experience, as opposed
to his reading of contract documents or his interpretation of legal requirements. (Doc. 110, Exh.
A, ¶12(b).)

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Seventh, plaintiff objects to Turner’s rebuttal opinion that, with respect to falls over the
side of escalators, “[t]he statistical probability of such an incident occurring in comparison to the
number of passenger rides is so small as to be ‘indistinguishable’ from zero and would be
considered to be mitigated under assessment methodologies.” (Doc. 101, Exh. A, § 7.1.)
Plaintiff’s expert David Cooper has documented the frequency of escalator falls worldwide and
has presented that data in the context of his opinion that the Sears escalator was unreasonably
dangerous. Furthermore, plaintiff’s expert Traci Campbell has been sharply critical of
defendants for not utilizing proper risk management analysis (in the form of methodologies such
as Failure Modes and Effects Analysis or Safety Hierarchy) to identify and design against the
risk of escalator falls. Turner offers a contrasting view based on “an iterative process of
evaluating the severity of injury with the probability of occurrence and applying mitigating
measures to reduce the probability of occurrence.” (Doc. 110, Exh. A, ¶ 15(a).) Indeed, it
appears that Turner is using the same methodologies and analytical tools that Campbell did,
based on the same data that Cooper generated, to reach a different conclusion. Given Turner’s
extensive experience in escalator consulting, escalator design, and development of escalator
safety codes, the Court is satisfied that the reliability criteria of Daubert, and all other prongs of
Rule 702, are met with regard to this opinion.
Eighth, Kirksey seeks exclusion of Turner’s rebuttal opinion that “guardrails at the sides
of the escalator … could not be attached to the existing escalator truss due to weight limitations.”
(Doc. 101, Exh. A, § 7.4.) Once again, plaintiff neglects to articulate clearly the basis for her
Daubert objection to this testimony. In support of his opinion, Turner cites to specific
requirements in the building code for strength of guardrails. (Id.) Turner also indicates that he
reviewed the Schindler layout for this particular escalator, and particularly the manufacturer’s
note that “[m]aterial such as cladding carried by the truss cannot exceed ten pounds per square
foot.” (Doc. 110, Exh. A, ¶ 14(b).) Based on his review of the building code and the Schindler
layout, and his knowledge and experience with respect to escalator design, Turner could reliably
opine that adding guardrails to the Sears escalator would not have been feasible in the absence of
“significant modification and reinforcement of the truss.” (Id.) Plaintiff is, of course, free to
cross-examine Turner on this point, and to delve into the specifics of particular types of
guardrails at particular locations on the escalator. But the Court has no reservations at this time,

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on this showing and with these arguments, in finding that Turner’s testimony on this point
comports with threshold Daubert requirements and is otherwise allowable under Rule 702.
Without explanatory verbiage or analysis, plaintiff also seeks exclusion of all of Turner’s
opinions pursuant to Rule 403, Fed.R.Evid. On this showing, the Court finds that those of
Turner’s opinions that pass Rule 702 admissibility thresholds are not properly excluded via the
extraordinary remedy of Rule 403. The Turner opinions that satisfy the qualification, reliability
and helpfulness prongs of Rule 702 do not pose a significant danger of unfair prejudice,
confusion of issues or misleading the jury that might outweigh their probative value. Thus,
plaintiff’s cursory Rule 403 objection is overruled.
VI.

Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.

Plaintiff’s Motion to Exclude as Unreliable the Testimony and Opinions of
Kathleen A. Rodowicz (doc. 99) is denied;

2.

Plaintiff’s Motion to Exclude as Unreliable Lay Testimony and Opinions of
Surveillance Video and Portions of Police Report (doc. 100) is granted. Lay
opinions by Sgt. Franks, Det. Deleston or Inspector Byrum about their
impressions of surveillance video relating to the conduct and/or actions of Jakobe
Kirksey are excluded; and

3.

Plaintiff’s Motion to Exclude as Unreliable Testimony and Opinions of
Defendants’ Expert Davis Turner (doc. 101) is granted in part, and denied in
part. Turner’s opinions are excluded, and the Motion is granted, as to the topics
of whether Jakobe was “unattended,” whether Jakobe engaged in “intentional
movements” leading to the accident, the position of the centerline of Jakobe’s
buttocks, whether the escalator was “well maintained,” and whether there was
“appropriate adult supervision” of Jakobe prior to his fall. In all other respects,
the Motion to Exclude is denied.

DONE and ORDERED this 20th day of September, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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