Buscaglia v. U.S.

• Citation: 25 F.3d 530
• Decision Date: 27 May 1994
• Docket Number: No. 93-2583,93-2583
• Parties: 39 Fed. R. Evid. Serv. 679 Judith A. BUSCAGLIA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 530

25 F.3d 530

39 Fed. R. Evid. Serv. 679

Judith A. BUSCAGLIA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 93-2583.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 11, 1994.

Decided May 27, 1994.

Glenn J. Jazwiec (argued), Roland P. Ernst, Carr & O'Rourke, Chicago, IL, for plaintiff-appellant.

Marsha A. McClellan, Kurt Lindland (argued), Office of the U.S. Atty., Criminal Div., Daniel E. May, Office of the U.S. Atty., Civil Div., Appellate Section, Linda A. Wawzenski, Asst. U.S. Atty., Office of the U.S. Atty., Chicago, IL, for defendant-appellee.

Before BAUER, FLAUM, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

Judith Buscaglia ("Buscaglia") slipped and fell in a United States Post Office in Elmhurst, Illinois, on January 27, 1987. Nearly four years later, she filed a complaint in federal district court seeking $250,000 damages against the United States ("the government") under the Federal Tort Claims Act ("FTCA"). 28 U.S.C. Sec. 1346(b). The government filed a motion to strike the affidavit of Buscaglia's expert, John Van Ostrand, and a motion for summary judgment. The district court granted both motions. Buscaglia appeals those rulings. We affirm in part and reverse in part.

I.

On the evening of the incident giving rise to this litigation, the ground outside the post office was covered with a thin layer of snow and slush. Buscaglia was wearing snow boots as she entered the post office, crossed wet floor mats, and walked through a vestibule and across the lobby to deposit her letters. While returning across the lobby, Buscaglia slipped and fell approximately four to six feet from the vestibule. She noticed a muddy accumulation of water in the area of her fall.

The postal facility's established policy required an employee to examine the lobby floor, on days of inclement weather, at approximately fifteen minute intervals and to mop up standing water when necessary. According to the depositions of postal employees, the post office janitor, Gene Hillard ("Hillard"), routinely mopped the area of the lobby where Buscaglia fell. ¹ He last checked the lobby area at 5:55 p.m. that evening. Hillard told another postal employee, John Anderson ("Anderson"), that the lobby was "fine" and proceeded to "punch out" for the day.

Buscaglia asserts two theories that would entitle her to recover under the Federal Tort Claims Act. First, she claims that the government negligently surfaced the floor with tile it should have known would become "unduly slippery when wet." In support of this theory, Buscaglia offered the affidavit of John Van Ostrand, a licensed architect and expert on the slip resistance of floor tile. Second, she contends that the government negligently failed to exercise ordinary care in removing tracked-in water from the post office lobby after voluntarily undertaking that task. After first granting the government's motion to strike Van Ostrand's affidavit, the district court granted summary judgment for the government on both theories of liability. Buscaglia appeals all of the district court's rulings.

II.

We first consider whether the district court erred in excluding Van Ostrand's affidavit under Fed.R.Evid. 403 and 702. In response to Buscaglia's discovery request, the government provided a sample piece of tile ² upon which Van Ostrand performed three independent tests to ascertain its coefficient of friction--a measure of a surface's slipperiness. According to his affidavit, these tests are generally accepted, widely used by professionals, and based on long-established scientific principles. Applying these tests, Van Ostrand determined that the tile sample had a coefficient of .32, which fell below the commonly accepted level of .5 for slip resistant surfaces in buildings accessible to the public. ³ Based on this calculation, Van Ostrand opined that (1) even when dry, the floor surface was improper for a public building, and (2) when wet, the floor surface was even more dangerous because its co-efficient of friction would be lower still.

A trial court has broad discretion in ruling on the admissibility of expert testimony, and we will reverse its decision only in the case of a clear abuse of discretion. Wallace v. Mulholland, 957 F.2d 333, 336 (7th Cir.1992). Here the district court granted the government's motion to strike Van Ostrand's affidavit, relying on two separate provisions of the Federal Rules of Evidence. To the extent the affidavit sought "to introduce some quantifiable evidence of the slipperiness of the floor at the post office," the court excluded it under Rule 403. The court found the probative value of Van Ostrand's opinion very low in light of the physical differences between the dry, unwaxed tile he tested and the wet and previously waxed tile on which Buscaglia fell. As the court stated, "[i]t is not helpful for the jury to know the coefficient of friction of a surface the plaintiff did not slip on." Order at 1. In view of the "allure of scientific jargon and a witness with an advanced degree," the court concluded that the danger of unfair prejudice and confusion of the issues outweighed the probative value of Van Ostrand's view of the floor surface when dry. Furthermore, to the extent the affidavit sought "to prove the principle that this surface would become even more slippery when wet," the court excluded it under Rule 702. Noting Buscaglia's "shocking" theory that "the floor becomes slippery when wet," the court reasoned that "[p]laintiff is not entitled to introduce expert testimony in order to make the simple appear complicated." Order at 1.

On appeal, Buscaglia concedes the obvious--that the average person comprehends that floor surfaces become more slippery wet than dry. She maintains, however, that Van Ostrand's expert testimony was admissible under Rule 702 to explain that some surfaces' slipperiness increases more than others and to establish that the floor surface of the Elmhurst Post Office did not meet the appropriate standard for a public building. Further, she argues that the court's decision to exclude the affidavit under Rule 403 was manifestly erroneous. Buscaglia insists that the court vastly understated the probative value of Van Ostrand's affidavit by overstating the differences between the test sample and the condition of the floor on which she fell, in part because the court based its decision on faulty premises not supported in the record. Specifically, Buscaglia asserts that the record evidence indicates a dispute as to whether the floor was wet or dry at the time of the fall--she claims that the floor was wet while two postal employees gave deposition testimony that it was dry. In addition, Buscaglia points out the absence of testimony indicating when the floor previously had been waxed and with what type of wax.

As a threshold matter, Van Ostrand's affidavit could be admitted only upon the laying of a foundation that the tests he performed on the tile sample occurred under substantially similar circumstances to those present at the time of the accident. Estate of Carey by Carey v. Hy-Temp Mfg., Inc., 929 F.2d 1229, 1235 n. 2 (7th Cir.1991). In applying this standard, we have emphasized that "substantially similar" does not mean "identical," and that the range between similar and identical is a matter to be addressed on cross examination. Id. (citing Kelsay v. Consolidated Rail Corp., 749 F.2d 437, 450-51 (7th Cir.1984) (Posner, J., dissenting)). We conclude that the conditions of Van Ostrand's test were sufficiently similar to the conditions of Buscaglia's fall to establish the requisite foundation, and we note that nothing in the district court's order appears to take a contrary view.

Rule 702 establishes two admissibility requirements for expert testimony: (1) the expert must be qualified, and (2) the subject matter of the expert's testimony must be suitable, that is, consist of specialized knowledge that will be helpful or essential to the trier of fact in deciding the case correctly. United States v. Stevenson, 6 F.3d 1262, 1266 (7th Cir.1993); Fed.R.Evid. 702. Here, the government does not contest Van Ostrand's qualifications, and we are persuaded that Van Ostrand's conclusions convey specialized knowledge that is at least moderately probative of an important issue in this case. Cf. 3 Weinstein & Berger, Weinstein's Evidence Sec. 702(02) at 702-18 (1994 supplement). We note also that expert testimony may be excluded if it addresses matters that people of common understanding can easily comprehend, United States v. Lundy, 809 F.2d 392, 395 (7th Cir.1987), or if based upon speculation, unsupported assumptions, or conclusory allegations. United States v. Tranowski, 659 F.2d 750, 755 (7th Cir.1981). If Buscaglia were seeking admission of the affidavit simply to advance the idea that a floor becomes slippery when wet, we would affirm a decision to exclude the evidence on the former ground; if the affidavit lacked adequate foundation it would be excluded on the latter ground. Here Van Ostrand's affidavit satisfies the requirements of Rule 702, at least in support of Buscaglia's theory that, wet or dry, this tile floor was unreasonably slippery.

Of course, expert testimony that is otherwise admissible under Rule 702 may nonetheless be excluded under Rule 403 if its probative value is outweighed by the danger of unfair prejudice. United States v. Brown, 7 F.3d 648, 654 (7th Cir.1993). This case presents the unusual situation in which a district court's decision to exclude evidence under Rule 403 constitutes clear error on the basis of an incorrect weighing of the relevant factors. As noted above, we are satisfied that Van Ostrand's affidavit has adequate foundation and at least moderate probative value. Admittedly, the tile sample provided by the defendant in response to a discovery request was not identical to the tile on which Buscaglia fell. Indeed, to test the actual tile on which s...