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Hawn v. Speedway LLC

United States District Court, N.D. Indiana, Fort Wayne Division

April 21, 2018

NAIKOMA HAWN, Plaintiff,
v.
SPEEDWAY LLC, d/b/a SPEEDWAY #8029, Defendant.

          OPINION AND ORDER

          William C. Lee, Judge

         This matter is before the Court on the Motion to Exclude Testimony from Plaintiffs Expert H. Richard Hicks, P.E., filed by Defendant Speedway LLC on March 7, 2018 (ECF 31). Plaintiff Naikoma Hawn filed a response in opposition to the motion on March 21 (ECF 35) and Speedway filed a reply on March 28 (ECF 40). For the reasons discussed below, the motion to strike is GRANTED in part and DENIED in part.

         BACKGROUND

         Naikoma Hawn filed a Complaint against Speedway on September 6, 2016, in the DeKalb County (Indiana) Superior Court, alleging that Speedway is liable to her for personal injuries she sustained when she slipped and fell in the women's restroom at a Speedway convenience store in Auburn, Indiana, on June 27, 2015. Complaint, p. 1, [1] Speedway removed the case to this Court on October 7, 2016, on the basis of diversity jurisdiction. Notice of Removal (ECF 1).

         Pursuant to Fed.R.Civ.P. 26(a)(2), Hawn designated H. Richard Hicks, a professional engineer, as a testifying expert witness. Hicks investigated the incident and prepared a report detailing his findings. Defendant's Motion to Strike, Exh. A (ECF 31-1). Speedway challenges the admissibility of Hicks' report, arguing that his "opinions are subject to exclusion under Fed.R.Evid. 702 because his opinions address common sense matters well within the realm of an average juror's knowledge and experience[]" and "because they offer opinions about case-determinative legal issues." Defendant's Motion to Strike, p. 1.

         STANDARD OF REVIEW

         The admissibility of expert testimony is governed by the Federal Rules of Evidence and the Supreme Court's decision in Daubert (and its progeny). In Brown v. Burlington N. Santa Fe Ry. Co., 765 F.3d 765 (7th Cir. 2014), the Seventh Circuit explained that "[a] district court's decision to exclude expert testimony is governed by Federal Rules of Evidence 702 and 703, as construed . . . in Daubert[.] Rule 702(c) requires that an expert's testimony be 'the product of reliable principles and methods.' Similarly, Rule 703 requires the expert to rely on 'facts or data, ' as opposed to subjective impressions." Brown, 765 F.3d at 771-72. The proponent of the expert's testimony bears the burden of demonstrating that it satisfies the Daubert standard. Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 782 (7th Cir. 2017).

         Federal Rule 702 provides as follows:

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 facts of the case.

         The Seventh Circuit has explained that Rule 702 "requires that the trial judge ensure that any and all expert testimony or evidence admitted 'is not only relevant, but reliable.'" Manpower, Inc. v. Ins. Co. of Pa. 732 F.3d 796, 806 (7th Cir. 2013) (citing Daubert, 509 U.S. at 589). The district court's "'gatekeeping' obligation applies not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999); see also Lees v. Carthage Coll., 714 F.3d 516, 521 (7th Cir. 2013) ("[T]he Daubert analysis applies to all expert testimony under Rule 702, not just scientific testimony."). Under Daubert, "the district court must engage in a three-step analysis before admitting expert testimony. It must determine whether the witness is qualified; whether the expert's methodology is scientifically reliable; and whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.'''' Id. at 779 (citation and internal quotation marks omitted). In the end, "the inquiry is a flexible one that provides wide latitude for the Court to serve its role as 'gatekeeper.'" C. W. v. Textron, Inc., 807 F.3d 827, 834-35 (7th Cir. 2015) (italics added).

         DISCUSSION

         In this case, Speedway argues that Hicks' report and proposed testimony should be stricken not because Hicks is unqualified or his methodology was unreliable, but rather because it is an attempt to "put an impermissible 'expert gloss' on a conclusion that jurors should be able to draw themselves based upon their common knowledge and experience." Defendant's Reply, p. 3. "Whether Speedway should have placed a 'wet floor' sign closer to the women's restroom or prevented customers from entering the restroom until the floor was dry, and whether by failing to do either was negligent, 'are matters of common sense and jury issues.'" Id., p. 1. Speedway also argues that "[c]ontrary to Plaintiffs statements, whether dangerous conditions existed in the Speedway store at the time of Plaintiffs fall is a case-determinative legal issue, and expert testimony on this subject is also inappropriate." Id., p. 4.

         Speedway elaborates as follows:

Hicks is a civil engineer by education and claims to have experience in investigating "slip, trip and fall" cases. Hicks' expert opinions are essentially that wet floors are slippery and dangerous and that Speedway should have placed a "Wet Floor" sign near the allegedly wet floor in the women's restroom or prevented ...

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