Saldana v. Kmart Corp.

• Decision Date: 20 December 1999
• Docket Number: No. CIV.1995–90M.,CIV.1995–90M.
• Citation: 42 V.I. 358
• Parties: Marie SALDANA, Plaintiff, v. KMART CORPORATION, Defendant.
• Court: U.S. District Court — Virgin Islands

42 V.I. 358

Marie SALDANA, Plaintiff,

v.KMART CORPORATION, Defendant.

No. CIV.1995–90M.

District Court of the Virgin Islands, Division of St. Croix.

Dec. 20, 1999.

In “slip and fall” action brought by store patron, store moved to exclude the opinion of patron's expert witness, and filed a motion for summary judgment. The District Court, Moore, J., held that: (1) safety expert's report was inadmissible; (2) patron's testimony that a layer of dust had accumulated on the puddle of liquid car wax on which she slipped was insufficient to support a finding that store had constructive notice of the spill; and (3) patron's attorney's routine use of a profanity to express her displeasure or disagreement with matters during trial and her calling an expert witness a “Nazi” in writing warranted monetary sanctions and required completion of a continuing legal education seminar on civility in the legal profession.

Motions granted.

Lee J. Rohn, Law Offices of Lee J. Rohn, St. Croix, VI, for plaintiff.

Andrew C. Simpson, Bryant, White & Barnes, P.C., St. Croix, VI, for defendant.

MEMORANDUM

MOORE, District Judge.

The defendant, Kmart Corporation [“Kmart” or “defendant”], has moved to exclude the opinion of plaintiff's expert witness, Rosie Mackay [“Mackay”], and filed a motion for summary judgment. The plaintiff, Marie Saldana [“Saldana” or “plaintiff”], has opposed both motions. For the reasons set forth below, the Court will grant Kmart's motions both to exclude the testimony of Rosie Mackay and for summary judgment.¹ The Court also rules on Kmart's motion for sanctions against plaintiff's counsel.

I. FACTS

On or about April 20, 1995, Saldana was shopping at Kmart's store located in St. Croix, U.S. Virgin Islands. As she walked down an aisle, she slipped and fell in a puddle of what was later identified as Finish 2001 car wax. It is undisputed that no one saw the wax on the floor before the accident, nor is there any evidence of the size of the puddle before plaintiff fell. Neither Saldana, nor her mother or aunt, who were with her when she fell, saw the spill. Moreover, neither Saldana's mother and aunt, nor an unknown couple that was also in the aisle at the time and remain unidentified, slipped in the wax. Other than the opinion testimony which Kmart has moved to exclude, there is no evidence of how long the wax had been on the floor, although plaintiff did notice a light brown dust on the puddle after her fall. There were no tracks of wax near the puddle from anyone else stepping in it before Saldana. The only evidence of the size of the wax spill at any time is plaintiff's estimate, after her fall had disturbed and smeared the wax, that it was about twenty-four inches across.

II. DISCUSSIONA. Kmart's Motion for Summary Judgment

To establish liability, Saldana must prove that the wax was on the floor and that Kmart had notice of this particular condition and that this condition involved an unreasonable risk of harm to a business invitee such as herself. There is no evidence that Kmart had actual notice of the spill. Thus, Saldana must establish that the wax was “on the floor long enough to give [Kmart] constructive notice of this potential ‘unreasonable risk of harm.’ ” See David v. Pueblo Supermarket, 740 F.2d 230, 233–34 (3d Cir.1984) (quoting Restatement (Second) of Torts § 343 (1965)). Even though the fact that the wax was on the floor at the time of the fall is uncontested, “the mere presence of the foreign substance does not establish whether it had been there a few seconds, a few minutes, a few hours or even a few days before the accident.” Id. How long a slippery substance must remain on the floor for it to constitute constructive notice is to be determined on a case-by-case basis. Id. at 236 (The plaintiff must produce reliable evidence that the condition existed sufficiently long for it to become “a question of fact for the jury whether, under all the circumstances, the defective condition of the floor in the store existed long enough so that it would have been discovered with the exercise of reasonable care.”).

A moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party may seek a summary judgment with or without supporting affidavits. SeeFed. R. Civ. P. 56(b). Neither the moving nor the opposing party may either support or oppose a motion for summary judgment with evidence that would be inadmissible at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 n. 19, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

Although the Court must draw all reasonable inferences from the evidence in favor of the non-movant, see Anderson, 477 U.S. at 256, 106 S.Ct. 2505, the party opposing summary judgment “may not rest upon the mere allegations or denials of the pleading;” its response, “by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” FED. R. CIV. P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). Indeed, the non-moving party must come forward with evidence from which a reasonable jury could return a verdict in her favor. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505;Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989).

In support of its motion for summary judgment, Kmart points to the deposition testimony of Eugenie Williams, a Kmart “Loss Control Associate,” whose responsibilities included patrolling the store looking for any hazardous situation. (Williams Dep. at 17.) Williams walked through the aisle where Saldana fell three minutes before the accident and did not see any Finnish 2001 product on the floor. ( Id. at 15, 43.) Williams was certain that she would have seen the wax if it had been on the floor when she walked through that same aisle. ( Id. at 43.)

Saldana has offered no evidence that Kmart had actual notice of the spill. Instead, she attempts to show that Kmart had constructive notice through her own testimony that she noticed a layer of dust on the puddle of car wax after she had fallen, and through the expert testimony of Rosie Mackay, proffered as a safety engineer. Since Mackay's opinion testimony is the only evidence which bears on the length of time the wax was on the floor, the Court will first rule on Kmart's motion to exclude her testimony. The Court will then determine whether plaintiff's case can survive defendant's motion for summary judgment without circumstantial evidence that the wax “was left on the floor for an inordinate period of time” sufficient to constitute negligence. Put another way, is the evidence sufficient to raise a question of fact for the jury, namely, “whether, under all the circumstances, the defective condition of the floor in the store existed long enough so that it would have been discovered with the exercise of reasonable care.” David, 740 F.2d at 236.

1. Standards for District Court's Gatekeeping Function

Kmart has moved to exclude Mackay's opinion and testing as unreliable and lacking any scientific or other replicable and reliable procedures. One of the functions of a trial judge is to rule on preliminary questions of admissibility and relevancy. SeeFED. R. EVID. 104(a); 402. Expert testimony is addressed by Rule 702 of the Federal Rules of Evidence:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

With respect to the expert matters described therein, Rule 702 “ ‘establishes a standard of evidentiary reliability.’ ” See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).²

The district court acts as “gatekeeper” to enforce these standards of evidentiary reliability by assuring that the technique, procedure, and methodology upon which an expert's opinion is founded are reliable in the scientific, technical, or other specialized field in which the witness professes expertise. Even before the Supreme Court's ruling in Kumho Tire, this Court in 1998 extended Daubert 's scientific analysis to expert testimony based on “technical” or “other specialized knowledge” gained by “skill, experience, training, or education” covered by Rule 702. See Belofsky v. General Elec. Co., 980 F.Supp. 818, 821–23 (D.Vi.1997) ( Daubert principles applied to testimony of engineer with expertise in mechanical engineering and product safety design).

In addition to requiring the witness to be qualified as an expert in her field, Rule 702 mandates

“a valid ... connection to the pertinent inquiry as a precondition to admissibility.” And where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question, the trial judge must determine whether the testimony has “a reliable basis in the knowledge and experience of [the relevant] discipline.”

See Kumho Tire, 119 S.Ct. at 1175 (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786) (citations omitted). To summarize, Rule 702 has three major requirements: (1) the witness must be an expert; (2) the procedures and methods used must be reliable; and (3) the testimony must “fit” the factual dispute...