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Pearson v. Wal-Mart Stores, Inc.

United States District Court, S.D. Mississippi, Eastern Division

June 5, 2019

ERICKA PEARSON PLAINTIFF
v.
WAL-MART STORES, INC., et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         For the reasons below, the Court denies Defendant's Motion to Exclude the Expert Testimony of Mark Williams [51] and denies Defendant's Motion for Summary Judgment [53].

         I. Background

         This is a premises liability case. Plaintiff slipped and fell in the parking lot of Sam's Club Store #6503 in Hattiesburg, Mississippi. Plaintiff contends that drainpipes on the side of the store deposited rainwater and algae from the roof onto a pedestrian walkway outside the store, collecting in the parking lot in front of the store's exit. Plaintiff contends that Defendant knew or should have known of the hazardous condition. She claims Defendant was negligent and demands a variety of damages. Defendant filed a Motion to Exclude [51] the testimony of Plaintiffs expert and a Motion for Summary Judgment [53].

         II. Motion to Exclude Expert Testimony [51]

         First, Defendant argues that the Court should exclude the testimony of Plaintiffs expert, Mark Williams. Plaintiff contends that drainpipes on the side of the store deposited rainwater and algae from the roof onto a pedestrian walkway outside the store, and that the water and algae collected in the parking lot in front of the store's exit. Williams intends to testify:

Dangerous conditions that caused Pearson's fall and resulting injury include stagnant water contaminated with algae on the asphalt drive. The slippery mixture was formed by water and algae on the roof that accumulated in a pavement depression as a result of improper discharge and drainage across the pedestrian walkway surface.

         Exhibit A to Motion to Exclude at 5, Pearson v. Wal-Mart Stores, Inc., No. 2:17-CV- 144-KS-MTP (S.D.Miss. Dec. 21, 2018), ECF No. 51-1. Williams contends that the "pavement where Pearson slipped and fell was not properly sloped to drain." Id. at 9.

         Accordingly, he believes that "[i]t was foreseeable to Sam's Club that water contaminated with organic matter from the roof would flow down the rain water leaders, across the concrete walkway, accumulate in the pavement depression, and remain stagnant each time it rained." Id. at 5.

         Rule 702 provides:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

FED. R. EVID. 702. Therefore, "when expert testimony is offered, the trial judge must perform a screening function to ensure that the expert's opinion is reliable and relevant to the facts at issue in the case." Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997).

         In Daubert v. MerrellDow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court provided a nonexclusive list of "general observations intended to guide a district court's evaluation of scientific evidence," including: "whether a theory or technique can be (and has been) tested, whether it has been subjected to peer review and publication, the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation, as well as general acceptance." Watkins, 121 F.3d at 989 (punctuation omitted).

Not every guidepost in Daubert will necessarily apply to expert testimony based on engineering principles and practical experience, but the district court's 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 is no less important.

Id. at 990-91 (punctuation omitted).

         Expert testimony must be supported by "more than subjective belief or unsupported speculation." Paz v. Brush Eng'red Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009). It "must be reliable at each and every step or it is inadmissible. The reliability analysis applies to all aspects of an expert's testimony: the methodology, the facts underlying the expert's opinion, the link between the facts and the conclusion, et alia." Seaman v. Seacor Marine LLC, 326 Fed.Appx. 721, 725 (5th Cir. 2009). "Overall, the trial court must strive to ensure that the expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).

         But the Court's role as gatekeeper is not meant to supplant the adversary system because "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596. While the Court should focus solely on the proposed expert's "principles and methodology, not on the conclusions that they generate," id. at 595, "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence connected ...


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