Henkel v. Albertsons, LLC

Filing 47

ORDER Granting 39 Defendant, Albertsons LLC's, Motion to Strike Plaintiff's Expert Witness Anne Stodola. Anne Stodola's testimony is EXCLUDED from trial. Denying as Moot 45 Defendant's Motion for Extension of Time to File a Reply. By Magistrate Judge Michael J. Watanabe on 6/11/2015.(emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02217-CMA-MJW
REBECCA HENKEL,
Plaintiff,
v.
ALBERTSONS, LLC, a limited liability corporation formed pursuant to the laws of
Delaware,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S EXPERT
WITNESS ANNE STODOLA (Docket No. 39), and
ORDER DENYING AS MOOT DEFENDANT’S UNOPPOSED MOTION FOR
EXTENSION OF TIME TO FILE A REPLY (Docket No. 45)
Michael J. Watanabe
United States Magistrate Judge
This is a slip-and-fall case. Defendant moved to “strike” Plaintiff’s expert report
under Federal Rule of Evidence 702. (Docket No. 39.) District Judge Christine M.
Arguello referred the motion to the undersigned. (Docket No. 40.) The Court has
reviewed the parties’ filings (Docket Nos. 39 & 44), taken judicial notice of the Court’s
entire file in this case, and considered the applicable Federal Rules of Evidence and case
law. Now being fully informed, the Court grants Defendant’s motion.
Legal Standards
As recently stated by Judge Arguello:
Under Daubert, the trial court acts as a “gatekeeper” of proffered
expert testimony by reviewing that testimony for relevance pursuant to
F.R.E. 401 and reliability pursuant to F.R.E. 702. See Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 589–95 (1993); see also United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (“the district court

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must satisfy itself that the proposed expert testimony is both reliable and
relevant, in that it will assist the trier of fact, before permitting a jury to
assess such testimony.”). The “gatekeeping” requirement set forth in
Daubert “applies not only to testimony based on ‘scientific’ knowledge, but
also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). The proponent
of a challenged expert must demonstrate by a preponderance of the
evidence that the expert's testimony and opinion is admissible. [Nacchio,
555 F.3d at 1241]; F.R.E. 702 advisory comm. notes.
Federal Rule of Evidence 702 governs the admissibility of expert
testimony. Rule 702 provides that a witness who is qualified as an expert by
“knowledge, skill, experience, training, or education” may testify if:
(a)

the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;

(b)

the testimony is based on sufficient facts or data;

(c)

the testimony is the product of reliable principles and
methods; and

(d)

the expert has reliably applied the principles and methods to
the facts of the case.

Camara v. Matheson Trucking, Inc., No. 12-cv-03040-CMA-CBS, 2015 WL
161271, at *2 (D. Colo. Jan. 13, 2015).
Anne Stodola’s Expert Report
Anne Stodola’s expert report runs six pages. The first three-and-a-half pages
recite the facts of the case as gleaned from a site visit, a surveillance video of Plaintiff’s
fall, and witness statements. On page four, Stodola sets out Defendant’s company
policy on spills, and concludes that Defendant’s response to inclement weather on the
day of Plaintiff’s fall—specifically, using dry mops—was not effective because shoppers
continued to appear to slip and slide entering the store.

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From there, Stodola concludes that rubber mats should have been placed next to
the door. On page 5, she explains that placing mats at building entrances during
inclement weather is recommended by an industry-safety group. She then notes that
Defendant placed mats on one side of the door, but not the other—a response she deems
inadequate in light of the industry-safety group’s standards.
Finally, to conclude her report, Stodola opines that Plaintiff would have had no way
of expecting a slippery floor and that human beings—when walking into unexpectedly
slippery conditions—often fall down.
Discussion
Defendant argues that the Stodola’s opinions are inadmissible because (1) they
“are not based on any identifiable, demonstrably reliable scientific principle or method”
and Stodola “conducted no testing to confirm her opinions”; and (2) “Stodola merely
presents observable phenomena that any lay person could readily discern.” (Docket No.
39, p.3.) Defendant’s motion fails to cite the Federal Rules of Evidence at any point, but
it appears that the first argument appears is brought under both Rule 702(b) and Rule
702(c), while the second argument is plainly brought under Rule 702(a).
I.

Reliable Methods, Based on Sufficient Facts & Data
Defendant’s first argument appears to be made under both Rule 702(b) and

702(c). As to Rule 702(b), Judge Arguello has said:
The plain language of Rule 702 requires an expert to base his or her
opinion on sufficient facts or data. Even if an expert presents impeccable
credentials, he or she cannot speculate or jump to an opinion without
factual support. A party's failure to support expert opinion with sufficient

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facts and data requires exclusion of the unsupported evidence. Thus,
admissible expert opinion requires a foundation based on facts that allow
the expert to express a reasonably accurate conclusion as opposed to
conjecture or speculation. However, absolute certainty is not required.
When reviewing the basis for an expert's opinion, courts in this circuit
should focus on the quantitative sufficiency of the facts behind the opinion,
not the quality.
James River Ins. Co. v. Rapid Funding, LLC, No. 07-cv-01146-CMA-BNB, 2009 WL
481688, at *7–8 (D. Colo. Feb. 24, 2009) (internal citations, ellipses, and quotation marks
omitted), reversed on other grounds, 658 F.3d 1207 (10th Cir. 2011).
As to Rule 702(c), Chief Judge Krieger has explained that the analysis under a
motion to exclude as a two-step process: determining “(i) what methodology did the
witness use to reach the opinion; and (ii) is that methodology generally deemed “reliable”
in the field in which the expert works. Both inquiries are entirely factual in nature, and the
proponent of the opinion must establish both inquiries by sufficient, competent evidence.”
United States v. Crabbe, 556 F. Supp. 2d 1217, 1222-23 (D. Colo. 2008). In determining
the reliability of the methodology, Judge Arguello looks to the “the non-exhaustive list of
factors set forth by Justice Blackmun,” specifically:
(1) whether the method is susceptible to testing and has been subject to
such testing;
(2) whether the method has been subjected to peer review;
(3) whether there is a known or potential error rate associated with the
methodology used; and
(4) whether the relevant community of experts has accepted the expert's
theory.”

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James River Ins. Co., 2009 WL 481688, at *10 (citing Daubert, 509 U.S. at 593–
94).
Here, Stodola is remarkably circumspect in explaining her methodology. She
cites to Defendant’s own safety rules for handling floor spills; she cites to an industry
standard from the American Society for Testing and Materials1 explaining generally that
mats and runners should be laid down during inclement weather; and she provides the
following paragraph:
The safety hierarchy, which is a safety principle taught to engineers and
applicable to a wide range of industries including grocery stores, states that
hazards should be designed out if possible, guarded against if they cannot
be designed out, and if they cannot be designed out or guarded against,
warnings must be given. The latter is the least effective. Applying those
principles, a walk-off mat should have been placed next to the door.
(Docket No. 39-1, p.4.)
Stodola’s report is based on video of Plaintiff’s fall; an in-person visit to the site;
testimony from eye-witnesses; and Stodola’s own expertise. Stodola did no actual
testing of the floor’s slipperiness.2 That said, scientific testing is not required in every

1

According to their website, “ASTM International, formerly known as the American
Society for Testing and Materials (ASTM), is a globally recognized leader in the
development and delivery of international voluntary consensus standards. Today, some
12,000 ASTM standards are used around the world to improve product quality, enhance
safety, facilitate market access and trade, and build consumer confidence.” ASTM
International, Overview, http://www.astm.org/ABOUT/full_overview.html (June 10, 2015).
2

The Court notes that such testing can be done. Although the issue ended up moot in
the case, Judge Martinez recently described a slip-and-fall expert report as follows:
Jim Royston of Western Engineering and Research Corporation,
who was hired by Plaintiffs' counsel as an expert in fall accidents,
performed an investigation and various tests regarding the site of Mr.

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case. Hatfield v. Wal-Mart Stores, Inc., 335 F. App'x 796, 800 (10th Cir. 2009).
“Rather, the inquiry examines only whether the witness obtained the amount of data that
the methodology itself demands.” United States v. Crabbe, 556 F. Supp. 2d 1217, 1223
(D. Colo. 2008).
It is difficult to see what amount of data would be sufficient, however, because
Stodola never identifies her methodology. Nowhere in her report does Stodola mention
any actual analysis being applied, other than a cursory explanation of the “safety
hierarchy.” She provides no explanation as to when walk-off mats should be applied,
when they shouldn’t, what alternative methods might be acceptable, and how she
determines when such considerations do or do not apply. Ultimately, she provides no
guidance as to what differentiates this case from other cases where a different conclusion
might be appropriate.
Stodola has not sought to offer an expert opinion on industry standards (i.e.,
“based on my expertise in the retail industry, mats are always placed out in inclement
weather”); she has purported to offer an expert opinion on engineering principles and
accident reconstruction, without meaningfully explaining or applying a methodology
Carriker's accident. Mr. Royston testified that the Americans with
Disabilities Act (“ADA”) recommended a slip-resistance coefficient of 0.60
for a dry floor, but that a floor could be characterized as slip-resistant if its
coefficient was greater than 0.5. Mr. Royston testified that there was no
building code requirement to perform slip testing of a wet floor. According to
Mr. Royston's slip tests, the floor of the restroom at DIA where Mr. Carriker's
accident took place had an average slip-resistance coefficient of 0.56 when
dry, and 0.11 when wet.
Carriker v. City & Cnty. of Denver, Colorado, No. 12-cv-02365-WJM-KLM, 2014 WL
5394985, at *1 (D. Colo. Oct. 23, 2014) (citations to the record omitted).

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derived from either field. “[N]othing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert.” General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct.
512, 139 L.Ed.2d 508 (1997). “A court may conclude that there is simply too great an
analytical gap between the data and the opinion proffered.” Id. Here, there is too great
an analytical gap—indeed, a gap larger than the analysis itself—connecting those facts to
the opinions proffered. Stodola’s opinions are therefore inadmissible.
II.

Helpful to the Trier of Fact
Defendant also argues under Rule 702(a), asserting that the subject-matter opined

upon is not appropriate for expert testimony. Whether testimony is a proper subject for
expert opinion is a question of common sense—i.e., whether an average juror is “qualified
to determine intelligently and to the best possible degree the particular issue without
enlightenment from those having a specialized understanding of the subject involved in
the dispute.” Fed. R. Evid. 702 advisory committee's note; see also Water Pik, Inc. v.
Med-Sys., Inc., 726 F.3d 1136, 1156 (10th Cir. 2013) (expert testimony not needed in
trademark confusion case turning on the similarity or dissimilarity of two marks, because it
was “a matter easily evaluated by laymen within the realm of their common knowledge
and experience”).
While expert testimony certainly could be offered in a slip-and-fall case as to
specialized and technical questions, see, e.g., Carriker v. City & Cnty. of Denver,
Colorado, No. 12-cv-02365-WJM-KLM, 2014 WL 5394985, at *1 (D. Colo. Oct. 23, 2014)

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(describing expert opinion based on measurable coefficient of friction on dry tile versus
wet tile of the type at issue), Stodola has not purported to offer such specialized
testimony. She offers her expert opinion that a rubber mat should be placed in a retail
store’s doorway during inclement weather and that people, when walking, will fall when
the floor is unexpectedly slippery. These are not matters outside the realm of experience
of lay jurors. Accordingly, the Court concludes that Stodola’s opinions are not helpful to
the trier of fact and are thus inadmissible under Rule 702(a).
III.

Miscellaneous Issues
Defendant classifies Stodola’s opinions in three categories: opinions as to the

weather, opinions as to safety guidelines, and opinions as to the expectations Plaintiff
would have had walking into the store. The foregoing discussion focused on the second
category. As to the weather, Stodola does not purport to offer an opinion on the weather;
she simply recounts the weather as part of the facts she relied upon, and the admissibility
of such data is moot in light of the Court’s order striking the rest of Stodola’s testimony.
As to Plaintiff’s expectations, the testimony is plainly outside any expertise of Stodola’s
and is thus inadmissible.
Order
For the above reasons, it is hereby ORDERED that


Defendant, Albertson’s LLC’s Motion to Strike Plaintiff’s Expert Witness
Anne Stodola (Docket No. 39) is GRANTED;



Anne Stodola’s testimony is EXCLUDED from trial; and

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

Defendant’s Motion for Extension of Time to File a Reply (Docket No. 45) is
DENIED AS MOOT.

Dated:

June 11, 2015
Denver, Colorado

/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge