Bingham v. Tunica Restaurant Group, Inc.

Filing 44

ORDER granting in part and denying in part 33 Motion to Exclude Certain Testimony of David Johnson. Signed by Jane M Virden on 4/8/2013. (sef)

IN THE UNITED STATES DISTRICT COURT OF THE
NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION

HAROLD BINGHAM

PLAINTIFF

VS.

CIVIL ACTION NO.: 2:12cv71-MPM-JMV

TUNICA RESTAURANT GROUP, INC.
d/b/a 8oz BURGER BAR,

DEFENDANT

ORDER
This matter came before the court on the motion of Plaintiff to strike and exclude certain
testimony of defendant’s expert, David Johnson (#33). After considering the motion, response,
and the applicable case law, the court finds as follows:
Defendant identified and disclosed David Johnson, a professional engineer and “certified
safety professional” as a testifying expert in this simple slip and fall case involving a recently
mopped floor. The defendant retained Mr. Johnson to provide opinion testimony that the
defendant acted reasonably in its mopping operations; that the plaintiff was sufficiently notified
of the wet floor avoid it; and that the plaintiff’s walking style was negligent and contributed to
his fall. Plaintiff challenges Mr. Johnson’s testimony pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), its progeny, as well as Rule 702 of the Federal Rules
of Evidence.
STANDARD OF REVIEW
Rule 702 of the Federal Rules of Evidence requires that a qualified expert witness (1)
base his opinions on sufficient facts or data; (2) utilize reliable principles and methods in forming
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opinions; and (3) reliably apply the principles and methods to the facts of the case. Accordingly,
Defendant must demonstrate that Mr. Johnson is both qualified and that his opinions are
scientifically valid and methodologically sound. Daubert, 509 U.S. at 592. When determining
admissibility of expert testimony, courts must consider whether the expert opinion is based on
scientific knowledge (reliability) and whether the expert opinion will assist the trier of fact to
understand or determine a fact in issue (relevance). Miss. Transp. Comm’n v. McLemore, 863 So.
2d 31, 38 (Miss. 2003). In Daubert, the Court instructed district courts to function as gatekeepers
to ensure that only reliable and relevant expert testimony is presented at trial. Daubert, 509 U.S.
at 590-93. Although Daubert addressed traditional "scientific" evidence, courts should apply
the same rule to all Rule 702 experts, including those relying on technical or other specialized
knowledge. See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1174-75 (1999). In determining
reliability, the courts should follow a flexible approach in which they examine factors including
the following: (1) whether the theory can be, and has been, tested; (2) whether the theory has
been published or subjected to peer review; (3) any known rate of error; and (4) the general
acceptance that the theory has garnered in the relevant expert community. Edmonds, 955 So. 2d
791 (citing Daubert, 509 U.S. at 593-94, 113 S.CT. at 2786). The Supreme Court later
determined that the above-mentioned factors apply to “technical or specialized expert testimony
as well as to scientific expert testimony.” Mississippi Transp. Com’n v. McLemore, 863 So.2d
31, at 37 (Miss. 2003).
Additionally, the proponent of the expert testimony must show admissibility by a
preponderance of the evidence, placing the burden on the defendant to establish to the court that
Mr. Johnson’s opinions meet the foundational requirements of admissibility. Daubert at 592,
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n.10. It is a further requirement that the expert testimony proffered must actually assist the trier
of fact. Even where expert testimony is reliable and is provided by a qualified expert, the
testimony may not assist the trier of fact. Id. This means that the expert testimony must concern
matters beyond the understanding of the average lay person. The expert testimony must be
relevant, not simply in the sense that all testimony must be relevant pursuant to Rule 402, but
also in the sense that the expert’s proposed opinions would assist the trier of fact to understand or
determine a fact in issue. Daubert, 509 U.S. at 591-92.
I. OPINION REGARDING PLAINTIFF’S FAILURE TO BEHAVE CAUTIOUSLY
Plaintiff challenges Mr. Johnson’s testimony that the Plaintiff was “inattentive to the
potential for a damp, slippery tile surface after acknowledging visual cues of its potential.” The
court finds that this testimony is not based on any particular expertise of Mr. Johnson and indeed
is of no assistance to the jury who, like the proposed expert, is capable of viewing the video of
the incident and reaching its own determination in this regard.
II. OPINION REGARDING PLAINTIFF’S WALKING GAIT/STYLE
Plaintiff challenges Mr. Johnson’s testimony that the plaintiff could have broken his fall
or regained his balance if he had not walked with his arm behind his back on the basis that
defendant failed to disclose certain literature alleged to support this opinion in Mr. Johnson’s
expert report in violation of Fed. R. Civ. P. 26(a)(2). Additionally, the Plaintiff challenges this
opinion as irrelevant and subjective. In the court’s view, this testimony is not properly the
subject of expert opinion, as there is nothing specialized, technical or scientific about this
speculative conjecture. Moreover, it is apparently premised, at least in part, on an alleged study
that was not timely disclosed.
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III. OPINION REGARDING WHAT PLAINTIFF KNEW OR COULD SEE
Plaintiff challenges Mr. Johnson’s testimony that the plaintiff could see the caution sign
from where he fell and that the plaintiff did not know that sections of the restaurant floor had not
been mopped. The court finds that testimony as to what plaintiff in this case could see or knew is
entirely speculative and not properly the subject of expert testimony. Furthermore, there is no
foundation for opinions about what the plaintiff could see offered other than the video tape,
which the jury itself is perfectly capable of viewing and analyzing. In short, this testimony will
not assist the jury.
IV. OPINIONS REGARDING APPLICABLE STANDARDS OF
PROPER PLACEMENT OF WET FLOOR SIGNS
In the court’s view, standards of this nature are the proper subject of expert testimony,
and this is so whether an industry standard is a specific or general. Accordingly, the jury may be
informed by the expert as to what the standard, if any, is. However, whether the Defendant
complied with the standard does not strike this court as requiring expert interpretation. The jury
can determine itself whether the facts of the case satisfy the industry standard, if any. There is no
specialized knowledge or technical prowess necessary to make such determination and none is
suggested by defendant.
Additionally, Mr. Johnson will be prohibited from testifying as to the floor safety training, if
any, received by the employees as it is uncontested that he has no knowledge of what training, if
any, was involved.
CONCLUSION
Based on the court’s analysis, the court finds Plaintiff’s motion, with a single narrow
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exception, to be well taken. Mr. Johnson’s testimony shall be limited accordingly.
IT IS, THEREFORE, ORDERED that the defendant’s motion to strike is hereby
GRANTED in part and denied in part.
SO ORDERED, this the 8th day of April 2012.
/s/Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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