United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant's Motion in
Limine to Exclude the Testimony of Russell Kendzior [Doc.
89], filed on October 17, 2017, and Defendant's Motion
for Summary Judgment [Doc. 90], filed on October 20, 2017.
The Court heard oral argument on both motions on March 16,
2018. Having considered the briefing, oral argument, relevant
portions of the record, and relevant authorities, and being
otherwise fully advised in the premises, the Court finds that
Defendant's Motion in Limine [Doc. 89] is well-taken in
part and will be GRANTED IN PART AND DENIED IN PART. The
Court further finds that Defendant's Motion for Summary
Judgment [Doc. 90] is not well-taken and will be DENIED.
16, 2016, Plaintiff fell as she entered Defendant's
store. [Doc. 90] at 1-2. There was a rectangular floor mat
just inside the entryway. The mat is carpeted material
surrounded by a hard rubber border. Id. at 2, 3. The
southern border of the mat was against the door. The northern
border was closer to the interior of the store. Thus,
Plaintiff entered the store walking from south to north.
Plaintiff entered the store, took a couple of steps across
the mat, and then tripped near the northern border of the
mat. Id. at 1. The significance of where she tripped
on the mat will become apparent shortly. Plaintiff broke her
hip and shoulder as a result of the fall. [Doc. 92] at 1.
Complaint, Plaintiff alleged that she tripped on
“debris or another obstacle which posed a tripping
hazard.” [Doc. 1-1] at 2. In her written discovery
responses, she stated that she “tripped over a rise in
the floor created by the recessed mat and raised hard rubber
border [of] that mat.” [Doc. 90] at 2 (internal
quotation marks omitted); [Doc. 90-1] at 3. When deposed, she
admitted that she did not know what caused her to fall. [Doc.
90] at 2. She testified that “something just made [her]
trip” and her “foot seemed to have caught
something.” [Doc. 90-5] at 2 (22:3-4). But she could
not say what that “something” was. Id.
at 2 (21:17-19, 22:8-10). “I was walking, and then the
next thing I know, I was tripped and was going
forward.” Id. at 2 (22:8-10).
customer at the store, Paul Serna, was deposed. He testified
that he was standing in a checkout line facing the entryway
when he observed Plaintiff walk into the store.[Doc. 90-6] at 2
(18:5-14, 21:1-6). He observed a
“ripple” in the mat and saw Plaintiff fall.
Id. at 2 (21:1-6). He described the ripple as being
approximately four inches long and between one quarter of an
inch and half an inch in height. Id. at 3
(24:12-25). He was asked to draw a diagram of the mat and to
place an “X” where he saw the ripple.
Significantly, he drew the X at the southwest corner
of the mat, just inside the doorway. Id. at 3
(22:10-24:11); [Doc. 90-2].
incident was captured on the store's surveillance video.
[Doc. 90] at 2; Ex. 2 to [Doc. 92]. In the video, Plaintiff
enters the store, walks across the mat, and trips as she
approaches the northwest corner of the mat. Ex. 2 to
[Doc. 92] at 9:17:07-9:17:12. It is not clear from the video
what, if anything, caused Plaintiff to trip. Less than a
minute after Plaintiff falls, a store employee steps onto the
mat and stands near the place where Plaintiff tripped.
Id. at 9:17:49-9:17:51. He places his foot on the
carpet near the northern border, and appears to be feeling
for anything that might have tripped Plaintiff. Id.
at 9:17:51-9:17:54. The video runs for nearly another 20
minutes. The employee returns to the same area on the mat two
more times. Each time, he bends down and places his fingers
on the mat near the location where Plaintiff fell.
Id. at 9:32:00-9:32:03, 9:32:36-9:32:38. He appears
to be checking for a “lip, ” or change in
elevation between the carpet and the border. Id.
retained a walkway safety expert, Russell Kendzior. Mr.
Kendzior prepared an expert report based on his review of the
surveillance video (and individual images extracted from it),
relevant portions of the record, written discovery, and
Defendant's incident report. [Doc. 91] at 27. Mr.
Kendzior's report states, “In reviewing the
surveillance videos it is clear that Mrs. Brower tripped and
that she tripped on something located on the northwest corner
of the entryway mat at the east entrance” of the store.
Id. at 29. Mr. Kendzior wrote that it is
“common knowledge in retail sales operations”
that this type of mat has “a propensity to bunch up on
the edges and corners and create a tripping hazard. This
bunching up occurs as foot and shopping cart traffic pushes
the mat up against the lip of the recessed bay in which the
mat is set.” Id. He cited to various standards
on “proper use of matting” as set out by the
National Floor Safety Institute and other entities.
Id. at 29-30. Mr. Kendzior ultimately opined that
Defendant “failed to exercise the requisite degree of
care recognized in the retail sales industry to keep the
premises at issue safe” by failing to (1) have
appropriate walkway safety policies and procedures, (2) train
employees on mat placement and inspections, (3) inspect store
matting, (4) provide a safe walking surface, and (5) comply
with industry standards. Id. at 30.
Kendzior inspected the mat on September 5, 2017,
approximately three months after his expert report was
disclosed and more than a year after the incident. [Doc.
90-4] at 11 (70:18- 73:17); [Doc. 92] at 14. He was deposed
later that day. Prior to being deposed, however, he reviewed
additional materials, i.e., the Serna deposition and
Defendant's policies regarding floor maintenance. He did
not change his basic opinion, i.e., that Plaintiff tripped
over a defect in the mat. However, he offered two alternative
theories as to the particular nature of the defect. Based on
his preliminary review of the video and still photographs
taken from it, he had originally concluded that Plaintiff
lost her balance and fell due to a “change in
elevation” between the carpeted portion of the mat and
the hard rubber border. [Doc. 90-4] at 3 (14:15-15:11, 15:20-
16:2, 16:18-17:8). At the time, he believed Plaintiff had
caught the sole of her shoe on this change of elevation,
causing her to fall. Id. at 3 (17:1-6). He explained
that this was the opinion he had formed prior to preparing
his expert report, based on the information he had at that
time. Id. at 3 (16:18-24).
in his deposition, however, he offered a different opinion
regarding causation: “[M]y understanding is, the
proximate cause of her trip-and-fall was the buckle in the
carpet, . . . the buckle or ripple described by Mr.
Serna.” Id. at 4 (25:1-6). “I think
we can eliminate everything short of a buckle.”
Id. at 4 (25:9-10). He added that the mat “was
installed as to have some defect, presumably a buckle or a
curl of some type that was observed by Mr. Serna.”
Id. at 3 (17:9-15). When it was pointed out that Mr.
Serna had placed the buckle in the southwest corner of the
mat (rather than the northwest corner, where Plaintiff
actually fell), Mr. Kendzior stated that the discrepancy did
not cause him to change his opinion. Id. at 9
(50:20-52:21). He testified that he was not relying solely on
Mr. Serna's testimony. He pointed, for example, to the
video footage of the store employee returning to the same
place on the mat, which suggested to him that there was a
visible buckle in the carpet which the employee was
attempting to flatten. Id. at 8 (45:4-18), 10
(55:12-57:8). He conceded that one “can't really
tell” from the video whether there was a buckle in the
carpet, id. at 9 (53:23-25), and he did not see one
when he inspected the mat. Id. at 5 (28:10-13).
his inspection, Mr. Kendzior had measured the difference in
height between the border of the mat and the carpeting. He
determined that the height difference exceeded a quarter of
an inch, which qualified it as a tripping hazard under the
applicable building and safety codes. Id. at 11 (70:2-4,
70:18-71:23); see also Id. at 5 (27:15-19). While
ultimately concluding that Plaintiff tripped over the buckle
described by Mr. Serna, Mr. Kendzior testified that he could
not rule out this height difference (between the carpet and
the border) as a cause of the fall. In short, he testified
that “[t]he video clearly shows her tripping on some
form of change in elevation” in the mat. Id.
at 5 (27:3-5). But he could not say whether that elevation
change was the buckle as described by Mr. Serna, or the
height difference between the carpet and the border.
Kendzior also testified that he reviewed Defendant's
floor inspection and maintenance policies, which were
provided to him after he submitted his report but before he
was deposed. [Doc. 89-3] at 2 (9:18-25). Mr. Kendzior
discussed, in general terms, employee training, inspection,
and floor safety standards. Id. at 14-16. He
testified that Defendant did not have an appropriate
maintenance and inspection program, id. at 14-15,
and that Defendant's employees “were not trained
and didn't recognize the inherent defect, being some form
of a buckle or delamination in the carpet.”
Id. at 4 (18:20-22, 20:7-14). He testified that
Defendant thus allowed the hazardous “change in
elevation” to exist. Id. at 4 (20:7-14).
expert, Walter Drew, was deposed six days later on September
11, 2017. [Doc. 100-2] at 1. Mr. Drew testified that he had
inspected the mat and had measured the difference in height
between the carpeting and the border. Id. at 3
(17:1-6). He found it to be exactly one quarter of an inch,
which he testified was in compliance with all applicable
codes. Id. at 3 (17:1-6, 19:1-9). Mr. Drew testified
that he had reviewed some depositions and “various
other things” between the time he drafted his expert
report and the date of his deposition. Id. at 2
(11:4-18). It is not clear from the record whether that
review caused him to change any of his opinions. It is clear,
however, that he was prepared to testify at his deposition on
the height difference between the carpeting and the border,
and whether that difference constituted a tripping hazard
under any applicable codes or standards. See [Doc.
100-2] (Plaintiff's examination of defense expert on
tripping hazards and applicable standards).
Defendant's Motion in Limine to Exclude the Testimony
of Russell Kendzior
moves the Court to exclude Mr. Kendzior's testimony on
two grounds. First, Defendant argues that Mr. Kendzior's
opinions on causation and Defendant's alleged failure to
maintain a safe entranceway-as disclosed in both his report
and his deposition-are speculative and lack the factual basis
required to satisfy the admissibility standard set forth in
Fed.R.Evid. 702. [Doc. 89] at 3-5, 8-11. Defendant argues
further that to the extent Mr. Kendzior's testimony is
not speculative, it would not otherwise assist the jury
because Mr. Kendzior merely restates what the jury could
observe from the evidence. Id. at 5. Second, as to
the opinions disclosed for the first time during his
deposition, Defendant argues that such opinions should be
excluded as a sanction pursuant to Fed.R.Civ.P. 37(c) because
Plaintiff failed to supplement Mr. Kendzior's report as
required by Fed.R.Civ.P. 26(e). Id. at 7-8.
response, Plaintiff argues that Mr. Kendzior's testimony
is based on sufficient evidentiary support. His reliance on
the video and witness testimony allowed him to reach
“logical conclusions” as to causation, which
Plaintiff maintains is sufficient to satisfy the requirements
of Rule 702. [Doc. 91] at 3-5. Plaintiff argues that
Defendant's challenge amounts to an attack on Mr.
Kendzior's credibility. Id. at 6. Plaintiff
further maintains that no supplementation was required
because the opinions Mr. Kendzior offered during his
deposition were consistent with those in his expert report.
Id. at 6-7. Plaintiff argues that Defendant
conflates Mr. Kendzior's opinions with the facts on which
those opinions were based. Id. The new evidence that
Mr. Kendzior reviewed after his expert disclosure but prior
to his deposition- e.g., his inspection of the mat, Mr.
Serna's deposition, and Defendant's policies on floor
inspection and maintenance-“merely confirmed” the
opinions he had formed from watching the surveillance video.
Id. at 8.
Rule of Evidence 702 governs the admissibility of expert
witness testimony. It provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise 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
(d) the expert has reliably applied the principles and
methods to the ...