Waldon v. Wal-Mart Stores Inc.

          ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION TO PRECLUDE EXPERT TESTIMONY (ECF NOS. 26 AND 37)

          JAMES R. SWEENEY II, JUDGE

         Plaintiff Linda Waldon fell while shopping in a Wal-Mart store in Crawfordsville, Indiana. She believes she slipped on a white plastic hanger on the floor. Ms. Waldon sued Wal-Mart in state court for damages to compensate her for the injuries she sustained in the fall. Plaintiff Steve Waldon, Linda's husband, brought a claim for loss of consortium. Wal-Mart removed the action to this district court under 28 U.S.C. §§ 1441 and 1446, asserting diversity jurisdiction under 28 U.S.C. § 1332.

         Wal-Mart has moved for summary judgment. Wal-Mart also has moved to preclude the testimony of Plaintiffs' expert, Edmund Di Marco, and to strike his affidavit, and has requested its attorneys' fees and expenses for having to evaluate and respond to the Di Marco affidavit. For the following reasons, the Court finds that Di Marco's testimony should be precluded, his affidavit should be stricken, Wal-Mart's motion for summary judgment should be granted, and Wal-Mart's request for sanctions should be denied.

         Wal-Mart's Motion to Preclude Expert Testimony

         Because the resolution of Wal-Mart's Motion to Preclude Expert Testimony could affect the evidence on which Plaintiffs may rely to establish a genuine issue of material fact in response to the summary judgment motion, the Court first considers the motion to preclude expert testimony. Wal-Mart contends that Di Marco's expert testimony should be excluded because his report fails to comply with Federal Rule of Civil Procedure 26 and his opinions are inadmissible under Federal Rule of Evidence 702. Plaintiffs have not responded to the motion to exclude their expert's testimony. They therefore have forfeited any argument in opposition to the motion that they could have made. See, e.g., Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“The silence resulting from the [nonmovant's] failure to file a response brief is deafening . . . . Failure to respond to an argument-as the [nonmovant has] done here- results in waiver.”).

         Besides, Wal-Mart's arguments regarding the expert testimony and report are well-taken. Wal-Mart argues that Di Marco's report is “a blatantly inadequate disclosure” and “plainly violative” of Federal Rule of Civil Procedure 26(a). And Wal-Mart asserts that it has been prejudiced in its ability to address the issues raised on summary judgment due to the untimely filing of the expert affidavit. Under Rule 26(a), an expert retained by a party to testify in a case must prepare a written report that includes “a complete statement of all opinions the witness will express and the basis and reasons for them; [and] the facts or data considered by the witness in forming them . . . .” Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii); see also Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008). Rule 37(c)(1) provides teeth to this requirement: “If a party fails to provide information . . . as required by Rule 26(a) . . . the party is not allowed to use that information or witness to supply evidence on a motion . . . or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1); see also Ciomber, 527 F.3d at 641. “This sanction is automatic and mandatory unless the offending party can establish that its violation . . . was either justified or harmless.” Ciomber, 527 F.3d at 641 (internal quotation marks omitted). Here, Plaintiffs have provided no response.

         Generously read, Di Marco's expert report offers two opinions. First, his report opines that “they [presumably Wal-Mart and/or its employees] did not practice a safe environment for the customers and the employees.” (ECF No. 37-1.) The report also opines that certain photos taken by Wal-Mart “showed slipping or tripping hazard[s] in the area.” (ECF No. 37-1.) The first opinion is a mere conclusion with no supporting analysis, and thus does not meet the requirements of Federal Rule of Evidence 702. See, e.g., Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781 (7th Cir. 2017) (“Rule 702 explicitly requires that expert testimony be ‘based on sufficient facts or data.'”) (quoting Fed.R.Evid. 702); Zenith Elec. Corp. v. WH-TV Broad Corp., 395 F.3d 416, 419 (7th Cir. 2005) (“An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.”). The second opinion is based only on Di Marco's personal observation, which is not a “‘substitute for scientific methodology and [is] insufficient to satisfy Daubert's most significant guidepost': reliability.” Hartman v. EBSCO Indus., Inc., 758 F.3d 810, 819 (7th Cir. 2014) (quoting Chapman v. Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002)). Indeed, Di Marco fails to identify any methodology whatsoever on which he relied in forming his opinions.

         The Di Marco expert report is wholly lacking in any of “the basis and reasons” for the expert's opinions or of “the facts or data considered” by him in forming his opinions. The report, and thus the expert disclosure, are woefully inadequate under Federal Rule of Civil Procedure 26(a)(2). See Fed. R. Civ. P. (a)(2)(B)(i)-(v).

         Furthermore, the opinions offered in Di Marco's affidavit were not disclosed by Plaintiffs in their expert report. The opinions in the affidavit are new opinions; they were not even mentioned in Plaintiffs' expert disclosures served on September 7, 2018. (Wal-Mart included a copy of Di Marco's expert witness report as Exhibit A to its motion, which exhibit was filed on November 8, 2018, as ECF No. 37-1.) These new opinions would come as a complete surprise to Wal-Mart, and Plaintiffs waited to disclose them until after Wal-Mart had moved for summary judgment. This prevented Wal-Mart from addressing these undisclosed opinions in its opening summary judgment brief and caused Wal-Mart to seek additional time to move to limit or preclude expert testimony and to seek discovery on the basis for Di Marco's findings disclosed in his affidavit. (SeeECF No. 35; ECF No. 36.) The opinions in the affidavit could be excluded under Rule 37(c)(1) on this basis alone. See Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information . . . as required by Rule 26(a) . . ., the party is not allowed to use that information or witness to supply evidence on a motion . . . or at a trial, unless the failure was substantially justified or is harmless.”).

         Plaintiffs have not established, or even argued, that Di Marco's untimely affidavit report was substantially justified or harmless. However, the Court need not rely solely on the inadequacies and untimeliness of Plaintiffs' expert disclosure to reach the conclusion that Di Marco's opinions and testimony must be excluded. As Wal-Mart contends, Di Marco's expert testimony, both in his report and his affidavit, is inadmissible because it is not reliable or relevant, it is based on speculation, and it would not assist the trier of fact. Fed.R.Civ.P. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) (Federal Rules of Evidence require the district court to ensure that expert testimony “is not only relevant, but reliable”). Plaintiffs have not even responded, must less argued otherwise, and they, as the proponents of the expert, bear the burden of demonstrating that the testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). The Court finds that Di Marco's expert opinions, both in the Rule 26(a) expert report and in the expert's affidavit, are not admissible under Federal Rule of Evidence 702 and Daubert. The affidavit is further excludable for failure to comply with the strictures of Rule 26(a). Therefore, Wal-Mart's Motion to Preclude Expert Testimony should be granted.

         Wal-Mart requests an award of sanctions under Rule 37(c) for Plaintiffs' failure to comply with the expert disclosure deadline in the Court's scheduling orders. Wal-Mart should not have had to evaluate Di Marco's untimely affidavit; however, Di Marco's timely yet inadequate report by itself likely would have resulted in a motion to strike the expert testimony. Therefore, the Court finds that an award of sanctions is not appropriate in this instance.

         Summary Judgment Standard

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the district court “must construe all the facts and reasonable inferences in the light most favorable to the nonmoving party, ” Monroe v. Ind. Dep't of Transp., 871 F.3d 495, 503 (7th Cir. 2017), but the court does not draw “inferences that are supported by only speculation or conjecture, ” id.(quoting Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)).

         The moving party bears the burden of showing the absence of genuine issues of material fact. Lewis v. Wilkie, 909 F.3d 858, 866 (7th Cir. 2018). If the moving party carries its burden, “the burden shifts to the non-moving party to come forward with specific facts showing that there is a genuine issue for trial.” Id. (quoting Spierer v. Rossman, 798 F.3d 502, 507 (7th Cir. 2015)). “Where the record taken as a whole could not lead a rational trier of fact to find for the ...