United States District Court, S.D. Georgia, Statesboro Division
RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court are Defendant Variety Wholesalers, Inc.'s
Motions for Summary Judgment and in Limine. (Doc. 40, 46.)
The Clerk has given Plaintiff notice of the summary judgment
motion and the summary judgment rules, of the right to file
affidavits or other materials in opposition, and the
consequences of default. (Doc. 41.) Therefore, the notice
requirements of Griffith v. Wainwright, 772 F.2d
822, 825 (11th Cir. 1985) (per curiam), have been satisfied.
The motions have been fully briefed and are ripe for
March 18, 2015, Plaintiff Janice Powell and her
granddaughter, Madison Powell, went to Defendant's
department store to shop for clothes. (M. Powell Dep., Doc.
40-3, at 7.) After trying on some clothing, Plaintiff and her
granddaughter exited the changing room and walked several
steps until Plaintiff slipped and fell on a coat hanger that
was lying in the middle of the aisle. (Id at 15.)
Plaintiff was helped to her feet by her granddaughter and,
after briefly speaking with one of Defendant's employees
about the accident, Plaintiff and her granddaughter left the
store. (Id. at 21-23.)
employee Plaintiff spoke with was Amanda Williams. (Williams
Dep., Doc. 58, at 20.) Although Ms. Williams denies
witnessing the accident, she does claim that she had
inspected the aisle where Plaintiff fell ten minutes before
and did not see a coat hanger. (Id. at 37.) Yet
during her deposition, Ms. Williams provided inconsistent
testimony regarding her whereabouts before the accident.
Initially, Ms. Williams said that she had no contact with
Plaintiff before the fall. (Id. at 30.) Later in her
deposition, however, Ms. Williams stated that she unlocked
the changing room door for Plaintiff and her granddaughter
right before inspecting the aisle where Plaintiff fell.
(Id. at 35-37.) Plaintiff and her granddaughter deny
that they had any contact with Ms. Williams before the
accident and insist that they let themselves into the
changing room. (J. Powell Dep., Doc. 40-2, at 112; M. Powell
Dep. at 13, 18.)
March 16, 2017, Plaintiff initiated this action against
Defendant in the State Court of Screven County, Georgia.
(Doc. 1-2, at 22.) Plaintiff claims that Defendant was
negligent for failing to properly maintain its store and for
using clear coat hangers, which allegedly created a tripping
hazard. Defendant removed this case on April 26, 2017, and
now moves to exclude the testimony of two of Plaintiff's
expert witnesses and for summary judgment on Plaintiff's
DEFENDANT'S MOTION IN LIMINE
moves to exclude the testimony of Thomas Lodge and Melinda
Mock, R.N. The proponent of expert testimony bears
the burden of demonstrating that the testimony complies with
Federal Rule of Evidence 702. U.S. v. Frazier, 387
F.3d 1244, 1260 (11th Cir. 2004). The Eleventh Circuit has
identified a three-part inquiry, considering whether:
(1) the expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodology by
which the expert reaches his conclusions is sufficiently
reliable as to be determined by the sort of inquiry mandated
in Daubert; and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or
specialized expertise, to understand the evidence or to
determine a fact in issue.
Id. "While there is inevitably some overlap
among the basic requirements-qualification, reliability, and
helpfulness-they remain distinct concepts and the courts must
take care not to conflate them." Id.
"Thus, for example, while an expert's overwhelming
qualifications may bear on the reliability of his proffered
testimony, they are by no means a guarantor of
reliability." Quiet Tech. DC-8, Inc. v.
Hurel-Dubois, UK, Ltd., 326 F.3d 1333, 1341 (11th Cir.
Lodge will testify that using a clear hanger on a
light-colored floor causes the hanger to be more
inconspicuous and therefore hazardous and that
Defendant's inspection policy was unreasonable.
has not met the burden of demonstrating that Mr. Lodge's
opinions regarding clear hangers are the product of a
reliable methodology. Mr. Lodge's opinion is entirely
based on one line from the National Safety Council's (the
"NSC") Data Sheet 1-495, Falls on Floors, which
provides" [c]onsider using colored hangers that contrast
with the floor color for easy identification."
(See Lodge Report, Doc. 13, at 5.) Yet Mr. Lodge
provides no information about the NSC nor does he state
whether the NSC's guideline has been adopted by
Defendant's industry. Mr. Lodge also fails to explain the
methods or data the NSC used when it recommended using
colored hangers. Without such information, the Court cannot
verify that Mr. Lodge's testimony is reliable. See
Seamon v. Remington Arms Co., 813 F.3d 983, 988 ...