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Brower v. Sprouts Farmers Market, LLC

United States District Court, D. New Mexico

March 23, 2018




         THIS 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.

         I. Background

         On July 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.

         In the 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).

         Another 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.[1][Doc. 90-6] at 2 (18:5-14, 21:1-6). He observed a “ripple”[2] 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].

         The 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.[3] Less than a minute after Plaintiff falls, a store employee[4] 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.[5] Id.

         Plaintiff 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.

         Mr. 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.[6] [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).

         Later 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.”[7] 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).

         During 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.[8] 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.

         Mr. 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).

         Defendant's 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).

         II. Defendant's Motion in Limine to Exclude the Testimony of Russell Kendzior

         Defendant 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.

         In 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.

         Legal Standards

         Federal 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 methods; and
(d) the expert has reliably applied the principles and methods to the ...

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