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Powell v. Variety Wholesalers Inc.

United States District Court, S.D. Georgia, Statesboro Division

July 9, 2018




         Before 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 decision.

         I. BACKGROUND

         On 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.)

         The 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.)

         On 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 claims.


         Defendant moves to exclude the testimony of Thomas Lodge and Melinda Mock, R.N.[1] 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. 2003).

         A. Thomas Lodge

         Mr. 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.

         1. Clear Hangers

         Plaintiff 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 ...

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