RATLIFF v. MENARD, INC.

Filing 80

ENTRY ON DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY - The Court DENIES in part and GRANTS in part Defendant's motion to exclude portions of Mr. Chambers's expert testimony (Dkt. 58 ). Mr. Chambers is allowed to testify regarding his expert report with the exception that legal conclusions are excluded. Signed by Judge Tanya Walton Pratt on 11/27/2012. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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CURTIS RATLIFF,
Plaintiff,
vs.
MENARD, INC.,
Defendant.

No. 1:11-cv-00888-TWP-DKL

ENTRY ON DEFENDANT’S MOTION TO EXCLUDE EXPERT TESTIMONY
This matter is before the Court on Defendant Menard, Inc.’s (“Menards”) Motion to
Exclude Portions of the Expected Testimony of Gary M. Chambers, P.E. (Dkt. 58). Plaintiff
Curtis Ratliff (“Mr. Ratliff) filed this negligence action against Menards after he was injured
while repairing a light fixture at the Camby, Indiana Menards location. To support his claim,
Mr. Ratliff has proffered the expert report of Gary M. Chambers, P.E. (“Mr. Chambers”) of Wolf
Technical Services, Inc.

Menards does not challenge Mr. Chambers’s qualifications, but

contends portions of the report and expected testimony do not satisfy the requirements of Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
For the reasons explained below, the Court DENIES in part and GRANTS in part Menards’s
motion (Dkt. 58).
I. BACKGROUND
The Court previously denied Menards’s motion for summary judgment (Dkt. 69).
Detailed facts and the background of this case can be found in that Entry. Relevant to the current
motion, Mr. Chambers completed a report in which he opined that the roof of the chain link
structure, on which Mr. Ratliff stood, lacked structural stability making it subject to collapse. He
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further opined that the structure was a hazardous condition not apparent to the untrained eye.
Additionally, Mr. Chambers opined that had the structure been built according to Menards’s site
plans, the structure “likely” would have supported Mr. Chambers’s weight.

Finally, Mr.

Chambers concluded Menards had a duty to warn Mr. Chambers of the known hazard, and that
had Menards approved the use of a lift, Mr. Ratliff would not have been exposed to the hazard.
II. LEGAL STANDARD
“Under the Daubert gatekeeping requirement, the district court has a duty to ensure that
expert testimony offered under Federal Rule of Evidence 702 is both relevant and reliable.”
Jenkins v. Bartlett, 487 F.3d 482, 488–89 (7th Cir. 2007). “Whether proposed expert testimony
is sufficiently reliable under Rule 702 is dependent upon the facts and circumstances of the
particular case.” Id. The Court is given latitude to determine “not only how to measure the
reliability of the proposed expert testimony but also whether the testimony is, in fact, reliable.”
Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010). “The court should [ ] consider the
proposed expert’s full range of experience and training in the subject area, as well as the
methodology used to arrive at a particular conclusion.” Id.
However, in a bench trial, as in this case, the court’s gatekeeping role is necessarily
different. In re Salem, 465 F.3d 767, 777 (7th Cir. 2006). The Seventh Circuit explains as
follows:
Where the gatekeeper and the factfinder are one and the same – that is, the judge
– the need to make such decisions prior to hearing the testimony is lessened. See
United States v. Brown, 415 F.3d 1257, 1268–69 (11th Cir. 2005). That is not to
say that the scientific reliability requirement is lessened in such situations; the
point is only that the court can hear the evidence and make its reliability
determination during, rather than in advance of, trial. Thus, where the factfinder
and the gatekeeper are the same, the court does not err in admitting the evidence
subject to the ability later to exclude it or disregard it if it turns out not to meet the
standard of reliability established by Rule 702.

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III. DISCUSSION
Menards puts forth three arguments why portions of Dr. Chambers’s report should be
excluded. First, relying on Porter v. Whitehall Laboratories, Inc., 791 F. Supp. 1335, 1345 (S.D.
1992), Menards contends that “an opinion relating to an unknown relationship (a hypothesis)
does not further the trier of fact’s ability to determine a fact dependent upon that hypothetical
relationship.” Because Mr. Chambers did not personally inspect the chain link cage structure
shortly after the accident occurred, but inspected it three years later, Menards argues Mr.
Chambers is relying on unknown facts. Mr. Ratliff responds that when Mr. Chambers conducted
his investigation, he relied upon a report completed shortly after the accident occurred that
included 46 photographs. The Court will allow Mr. Chambers to testify and give his opinion on
the chain link cage structure on the date of the incident. To the extent that this opinion does not
rely on facts, but upon hypotheticals, the Court will disregard such testimony. However, the
Court sees no need to exclude testimony of this nature at this stage of the proceedings.
Second, Menards contends Mr. Chambers’s “opinions should be excluded because he
fails to explain what testing he did to confirm his opinions, and especially his causation
opinions.”

Dkt. 58 at 5.

Specifically, Menards argues Mr. Chambers failed to take into

consideration Derek Uran’s deposition and did not use reliable principles or methods. Menards’s
chief complaint is that Mr. Chambers did not conduct any testing or recreation of the accident.
Mr. Ratliff responds that such arguments provide “fodder for cross-examination” but “does not
provide support for a preliminary exclusion of testimony.” Dkt. 68 at 8. That is, because Mr.
Chambers will provide foundational testimony specifically outlining the facts, data, and methods
upon which he relied, reliability will be established. Furthermore, Mr. Ratliff argues it is not
necessary in this case to require a recreation of the accident under Rule 702’s flexible test.

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An expert is able to “draw a conclusion from a set of observations based on extensive and
specialized experience.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999). Expert
opinions must, however, have analytically sound bases and be more than mere speculation.
Smith v. Ford Motor Co., 215 713, 719 (7th Cir. 2000). The Court will allow Mr. Chambers to
testify based on his experience and any testimony with weak support will be discounted. Any
testimony that is completely unsupported will be disregarded. However, the Court sees no
reason to exclude such testimony at this time.
Third, Menards contends Mr. Chambers’s opinions contain improper legal conclusions.
Mr. Ratliff responds that “while [Mr.] Chambers may not be able to provide a legal opinion as to
the ultimate issue of Menards’ duty in this case, he is certainly qualified by experience and
expertise to opine as to whether Menards should have advised that the fence cage had been
damaged prior to instructing Plaintiff to utilize the cage to work on Defendants’ outdoor lighting
system.” Dkt. 68 at 9. The Court finds that Mr. Chambers’s report does contain some legal
conclusions, such as “Menards had a duty to inform Ratliff of the damage to the chain link
security cage prior to his working on the cage roof but failed to do so.” Dkt. 49-4 at 4. The law
is well settled that legal conclusions are not helpful to the trier of fact; therefore, the Court will
exclude any legal conclusions by the expert.
IV. CONCLUSION
For the reasons herein, the Court DENIES in part and GRANTS in part Defendant’s
motion to exclude portions of Mr. Chambers’s expert testimony (Dkt. 58). Mr. Chambers is
allowed to testify regarding his expert report with the exception that legal conclusions are
excluded.
SO ORDERED.

11/27/2012

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________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
Jeffrey S. Tabor
TABOR LAW FIRM
[e-mail]
Michael Edmund Walschlager
TABOR LAW FIRM LLP
[e-mail]
Kevin C. Tyra
THE TYRA LAW FIRM, P.C.
[e-mail]
Jeremy Michael Padgett
TYRA LAW FIRM P.C.
[e-mail]

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