Fontaine v. Columbia Props. Ozarks, Ltd., Case No. 2:15-cv-04213-NKL

• Decision Date: 03 November 2016
• Docket Number: Case No. 2:15-cv-04213-NKL
• Parties: AMY FONTAINE and TODD FONTAINE, Plaintiffs, v. COLUMBIA PROPERTIES OZARKS, LTD., et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

AMY FONTAINE and TODD FONTAINE, Plaintiffs, v. COLUMBIA PROPERTIES OZARKS, LTD., et al., Defendants.

Case No. 2:15-cv-04213-NKL

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

November 3, 2016

ORDER

Before the Court is Defendants' Motion to Exclude Expert Testimony [Doc. 47] and Defendants' Motion for Summary Judgment [Doc. 45]. For the following reasons, Defendants' Motion to Exclude Expert Testimony is granted in part and denied in part and Defendants' Motion for Summary Judgment is denied.

I. Background

On May 30, 2012, Plaintiff Amy Fontaine travelled to Defendants' Tan-Tar-A Resort in Osage Beach, Missouri, for a work conference. [Doc. 51, pp. 1-2]. The Resort did not provide a sidewalk, so guests walked on the driveway. Id. After checking in, Ms. Fontaine walked along the driveway looking to find her room. Id. at 4. Ms. Fontaine was "pulling luggage with her purse/work bag and laptop on top of it and carrying her conference materials in her left arm." Id. Around 8:00 p.m.¹, Ms. Fontaine fell while walking on the driveway trying to locate her room. Id. In the area where Ms. Fontaine fell, there was a depression in the roadway approximately one-inch deep by one foot wide by one and one half foot in diameter. [Doc. 46, p. 3]. Ms. Fontaine suffered injuries to her ankle, knee, and shoulder subsequently requiring eight surgeries. [Doc. 51, p. 1]. Tan-Tar-A employees later stated in depositions that another company, APAC, had been contracted to make repairs to the area in which Ms. Fontaine fell, but only "seal-coated" the area; no repairs were done to fill in the missing asphalt. [Doc. 46, p. 7].

Ms. Fontaine and her husband filed suit against Tan-Tar-A Resort and its parent companies, alleging negligent premises liability. Defendants now move to exclude the testimony of Plaintiffs' expert and move for summary judgment.

II. Discussion

A. Defendants' Motion to Exclude Expert Testimony

Plaintiffs have designated Arthur Chew as a liability expert. Mr. Chew is a civil engineer and currently serves as the city engineer in Ocean City, New Jersey. [Doc. 50-1, p. 3]. Defendants move to exclude Mr. Chew's testimony under Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), arguing the testimony is not reliable and otherwise improper. [Doc. 48, p. 2]. If allowed, Mr. Chew will testify that:

(1) Tan-Tar-A's driveway where Amy Fontaine fell was not reasonably safe because of the missing asphalt and was in violation of applicable codes and standards because it created an unreasonable risk of tripping and falling,

(2) the driveway was substandard and in need of repairs,(3) because the injury was suffered at approximately 8:00 p.m., lighting and shadows on the black seal coated surface made the depression nearly impossible to see,

(4) because Amy Fontaine was pulling her luggage and conference materials, the pothole depression area was not within her lower peripheral vision, and

(5) poor subsurface draining caused the initial loss of asphalt which occurred over time.

[Doc. 50, p. 2]. Plaintiffs object to Defendant's motion. Id.

1. Legal Standard

Federal trial judges have "broad discretion" in making decisions concerning expert testimony's admissibility. Bradshaw v. FFE Transp. Servs., Inc., 715 F.3d 1104, 1107 (8^th Cir. 2013). Under Fed. R. Evid. 702 and the guidance set forth in Daubert, expert testimony should be liberally admitted. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8^th Cir. 2014) (citing U.S. v. Finch, 630 F.3d 1057, 1062 (8^th Cir. 2011) (holding that doubts about usefulness of expert testimony are resolved in favor of admissibility); Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8^th Cir. 2006) (holding that expert testimony should be admitted if it "advances the trier of fact's understanding to any degree"); Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8^th Cir. 2001) (Rule 702 "clearly is one of admissibility rather than exclusion"). "As long as the expert's . . . testimony rests upon 'good grounds, based on what is known' it should be tested by the adversary process with competing expert testimony and cross-examination, rather than excluded by the court at the outset." Id. (citing Daubert, 509 U.S. at 590, 596). Exclusion of expert opinion is proper "only if it is so fundamentally unsupported that it can offer no assistance to the jury." Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8^th Cir. 1997).

Even so, pursuant to Daubert, the Court's role as "gatekeeper" in determining the admissibility of expert testimony requires the Court to conduct "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93. This question of whether "an expert's testimony both rests on a reliable foundation and is relevant to the task at hand" is known as the "reliability and relevancy" test. Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, (1999)). "The main purpose of Daubert exclusion is to prevent juries from being swayed by dubious scientific testimony." In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011).

"When making the reliability and relevancy determinations, a district court may consider: (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review or publication; (3) whether the theory or technique has a known or potential error rate and standards controlling the technique's operation; and (4) whether the theory or technique is generally accepted in the scientific community." Russell, 702 F.3d at 456 (citing Daubert, 509 U.S. at 592-94).

Plaintiffs argue that Daubert does not apply to Mr. Chew's testimony, because "the Daubert standard only applies to expert testimony which is being proffered on a strictly scientific basis or foundation." [Doc. 50, p. 3]. That is incorrect; Daubert applies to all expert testimony. Jaurequi v. Carter Manufacturing Company, Inc., 173 F.3d 1076, 1082 (8th Cir. 1999). However, the Daubert standard is "flexible" and the above factors are guidelines rather than "a definitive checklist." Id. The expert's testimony must at the very least satisfy "the same level of intellectual rigor that characterizes the practice of an expert in the relevant field," but "whetherDaubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Kumho Tire, 526 U.S. at 151, 153.

2. Mr. Chew's Testimony

Plaintiffs have the burden of establishing the admissibility of Mr. Chew's testimony. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8^th Cir. 2001). Many of the Defendants' concerns regarding Mr. Chew's expected testimony reference the methods he used in reaching his conclusions; namely that he "observed photographs of the area of the fall . . . and conducted what he called a 'foot slip test.' He conducted no measurements of the area." [Doc. 52, p. 5]. Yet "[a]s a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination." Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8^th Cir. 1988); see also Air Evac EMS, Inc. v. Aeronautical Accessories, Inc., No. 96-3605, 1997 WL 545304, at * 1 (8^th Cir. Sept. 5, 1997) ("But weakness in the factual basis of expert testimony goes to the weight, not the admissibility, of that testimony."). Furthermore, because Tan-Tar-A repaired the area immediately following Ms. Fontaine's fall, Mr. Chew used the evidence available to him in reaching his conclusions. [Doc. 50, p. 6].

Plaintiffs have illustrated that Mr. Chew has extensive experience in civil engineering, applicable standards and codes, and has expertise in "walkways, driveways, asphalt, paving, pavement repair, and maintenance of pavement." [Doc. 50, p. 2]. His testimony is relevant in establishing the condition of the driveway where Ms. Fontaine fell. Additionally, his testimony will assist the jury in understanding the technical aspects of driveway safety as well as the condition of the asphalt in the relevant area, a topic most likely outside the realm of commonknowledge. The Court finds that his knowledge on driveway safety and maintenance is established and supported by sufficient data and facts. Mr. Chew's opinions on whether or not the driveway was reasonably safe and whether or not the driveway was in need of repairs, opinions (1) and (2) above, are admissible. See Hose v. Chicago Nw. Transportation. Co., 70 F.3d 968, 974 (8^th Cir. 1995) ("Only if an expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.").

However, that testimony should be limited to the above mentioned opinions regarding the condition of the driveway and pavement safety standards. To the extent that Plaintiffs seek to have Mr. Chew testify outside of that area, that testimony should be excluded. The Court finds that there is insufficient evidence contained in Mr. Chew's report with which he could rely on in forming Opinions (3) and (4). See [Doc. 50-1]. While Mr. Chew is not per se excluded from testifying to "common sense observations," the lighting at the time of Ms. Fontaine's fall and the specific area within or outside of her peripheral vision are not based on any objective evidence in the record. See Pro Serv. Auto., L.L.C. v. Lenan Corp., 469 F.3d 1210, 1216 (8th Cir. 2006) ("Where 'opinion evidence . . . is connected to existing data only by the ipse dixit of the expert,' a district court 'may conclude that there is simply too...