United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
William C. Lee, Judge
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.
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,  Speedway removed the case to this Court
on October 7, 2016, on the basis of diversity jurisdiction.
Notice of Removal (ECF 1).
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.
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).
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.
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).
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.
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 ...