Arterburn v. Home Depot USA Inc, No. 2:2022cv00408 - Document 49 (W.D. Wash. 2023)
Court Description: ORDER granting Defendants' 28 Motion to Exclude Testimony of Joellen Gill. Signed by Judge Ricardo S. Martinez. (SB)
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Arterburn v. Home Depot USA Inc Doc. 49 Case 2:22-cv-00408-RSM Document 49 Filed 10/02/23 Page 1 of 8 1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 8 CLYDE A. ARTERBURN, an individual, 9 Plaintiff, 10 v. Case No. C22 408 RSM ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF EXPERT JOELLEN GILL 11 12 HOME DEPOT U.S.A., INC. dba/aka Home Depot, a Foreign Corporation, 13 Defendant. 14 15 This matter comes before the Court on Defendant Home Depot U.S.A., Inc. (“Home 16 Depot”)’s Motion to Exclude Testimony of Joellen Gill. Dkt. #28. Plaintiff Clyde Arterburn 17 18 opposes. Dkt. #36. 19 On September 21, 2020, Mr. Arterburn tripped and fell at a Home Depot. Dkts. #30-1 20 and #30-2. Promptly after Mr. Arterburn’s fall, emergency personnel were called, and he was 21 transported by ambulance for medical treatment. Id. 22 Mr. Arterburn alleges that as he was exiting the store, he tripped over a metal basket 23 24 holder which had been placed over a pipe that protruded slightly from the floor. Dkt. #1. Home 25 Depot claims that the basket holder was placed in the location with the purpose to hold 26 baskets—not to cover the pipe. Dkt. #29. Nevertheless, there were no baskets in the wire frame 27 holder at the time of the incident. Dkt. #43. 28 ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF JOELLEN GILL - 1 Dockets.Justia.com Case 2:22-cv-00408-RSM Document 49 Filed 10/02/23 Page 2 of 8 1 There is no dispute that the area where Mr. Arterburn walked and tripped over the 2 basket, between a yellow bollard and a wall, was wide enough that he was able to pass through 3 without twisting or adjusting his body in any way. Dkt. #44-1. Home Depot testified that the 4 bollard was placed there to protect the edge of the building from heavy equipment, not to direct 5 6 7 customers where to walk. Dkt. #44-8. It is undisputed that there were no signs or warnings to customers in the area where Mr. Arterburn tripped. Id. 8 Plaintiff’s expert witness, Joellen Gill, reviewed (1) photographs of the incident location 9 taken by her colleague, (2) Home Depot’s supplemental discovery responses, and (3) the 10 deposition transcripts of Plaintiff, Preston Beebe and Taylor O’Harrow. Dkt. #24-2 at 4. Ms. 11 12 Gill relied on this photo, included in her Report filed with the Court: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF JOELLEN GILL - 2 Case 2:22-cv-00408-RSM Document 49 Filed 10/02/23 Page 3 of 8 1 In her report, she concludes that the area of the incident, between the yellow bollard and 2 the wall, was a foreseeable pedestrian walkway approximately 40 inches wide. Id. at 5-6. She 3 states that “typical aisles and walkways are 36 inches minimum.” Id. at 6. She calculates the 4 wire basket to be 13.75 inches tall, not by measuring it, but by using the known measurement of 5 6 the bollard, 55 inches, and “[u]sing the assumption that the wire basked was ¼ the height of the 7 bollard.” Id. at 6–7. She opines on Home Depot’s internal policies and procedures regarding 8 keeping the aisles clear of tripping hazards and the use of merchandising displays. Dkt. #24-2 9 at 7-8. Ms. Gill states that an individual typically does not look at the ground in the immediate 10 vicinity of their feet; rather, people typically direct their visual gaze towards their intended 11 12 13 destination or target. Id. at 8. She discusses safety measures Home Depot could have used to prevent the incident or similar ones in the future. 14 Federal Rule of Evidence 702 provides that a witness who is qualified as an expert by 15 knowledge, skill, experience, training, or education may testify in the form of an opinion or 16 otherwise if: 17 18 19 20 21 22 (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. 23 24 Under Rule 702, the trial court acts as a gatekeeper and ensures that the proffered scientific 25 testimony meets certain standards of both relevance and reliability before it is admitted. 26 Daubert v. Merrell Dow Pharm., Inc. ("Daubert I"), 509 U.S. 579, 590, 113 S. Ct. 2786, 125 L. 27 Ed. 2d 469 (1993). The party proffering expert testimony has the burden of showing the 28 ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF JOELLEN GILL - 3 Case 2:22-cv-00408-RSM Document 49 Filed 10/02/23 Page 4 of 8 1 admissibility of the testimony by a preponderance of the evidence. Daubert I, 509 U.S. at 592 2 n.10. “[J]udges are entitled to broad discretion when discharging their gatekeeping function” 3 related to the admission of expert testimony. United States v. Hankey, 203 F.3d 1160, 1168 (9th 4 Cir. 2000) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150-53, 119 S. Ct. 1167, 143 L. 5 6 Ed. 2d 238 (1999)). The Court considers four factors to determine if expert testimony will 7 assist the trier of fact: “(i) whether the expert is qualified; (ii) whether the subject matter of the 8 testimony is proper for the jury’s consideration; (iii) whether the testimony conforms to a 9 generally accepted explanatory theory; and (iv) whether the probative value of the testimony 10 outweighs its prejudicial effect.” Scott v. Ross, 140 F.3d 1275, 1285-86 (9th Cir. 1998). 11 12 As an initial matter, this Court must determine whether a witness is qualified as an 13 expert by “knowledge, skill, experience, training or education.” Fed. R. Evid. 702. Because the 14 Rule “contemplates a broad conception of expert qualifications,” only a “minimal foundation of 15 knowledge, skill, and experience” is required. Hangarter v. Provident Life & Accident Ins. Co., 16 373 F.3d 998, 1015-16 (9th Cir. 2004) (emphasis in original) (quoting Thomas v. Newton Int’l 17 18 Enters., 42 F.3d 1266, 1269 (9th Cir. 1994)). A “lack of particularized expertise goes to the 19 weight of [the] testimony, not its admissibility.” United States v. Garcia, 7 F.3d 885, 890 (9th 20 Cir. 1993) (citing United States v. Little, 753 F.2d 1420, 1445 (9th Cir. 1984)); Daubert v. 21 Merrell Dow Pharm., Inc. (“Daubert II”), 43 F.3d 1311, 1315 (9th Cir. 1995). 22 23 The trial court must also ensure that the proffered expert testimony is reliable. 24 Generally, to satisfy Rule 702’s reliability requirement, “the party presenting the expert must 25 show that the expert’s findings are based on sound science, and this will require some objective, 26 independent validation of the expert’s methodology.” Daubert II, 43 F.3d at 1316. Toward this 27 end, the Supreme Court in Daubert I set forth the following factors for the trial court to consider 28 ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF JOELLEN GILL - 4 Case 2:22-cv-00408-RSM Document 49 Filed 10/02/23 Page 5 of 8 1 when assessing the reliability of proffered expert testimony: (1) whether the expert’s method, 2 theory, or technique is generally accepted within the relevant scientific community; (2) whether 3 the method, theory, or technique can be (and has been) tested; (3) whether the method, theory, 4 or technique has been subjected to peer review and publication; and (4) the known or potential 5 6 rate of error of the method, theory, or technique. Daubert I, 509 U.S. at 593-94. An expert 7 opinion is reliable if it is based on proper methods and procedures rather than “subjective belief 8 or unsupported speculation.” Id. at 590. The test for reliability “‘is not the correctness of the 9 expert’s conclusions but the soundness of his methodology.’” Stilwell v. Smith & Nephew, Inc., 10 482 F.3d 1187, 1192 (9th Cir. 2007) (quoting Daubert II, 43 F.3d at 1318). 11 12 Alternative or opposing opinions or tests do not “preclude the admission of the expert’s 13 testimony – they go to the weight, not the admissibility.” Kennedy v. Collagen Corp., 161 F.3d 14 1226, 1231 (9th Cir. 1998). Furthermore, “‘[d]isputes as to the strength of [an expert’s] 15 credentials, faults in his use of [a particular] methodology, or lack of textual authority for his 16 opinion, go to the weight, not the admissibility, of his testimony.’” Id. (quoting McCullock v. 17 18 H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)). 19 Finally, the Court must ensure that the proffered expert testimony is relevant. As 20 articulated in Rule 702, expert testimony is relevant if it assists the trier of fact in understanding 21 evidence or in determining a fact in issue. Daubert I, 509 U.S. at 591. Thus, the party 22 23 proffering such evidence must demonstrate a valid scientific connection, or “fit,” between the 24 evidence and an issue in the case. Id. Expert testimony is inadmissible if it concerns factual 25 issues within the knowledge and experience of ordinary lay people because it would not assist 26 the trier of fact in analyzing the evidence. In the Ninth Circuit, “[t]he general test regarding the 27 admissibility of expert testimony is whether the jury can receive ‘appreciable help’ from such 28 ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF JOELLEN GILL - 5 Case 2:22-cv-00408-RSM Document 49 Filed 10/02/23 Page 6 of 8 1 testimony.” 2 unreliable and unfairly prejudicial expert witness testimony is not helpful to the trier of fact, the 3 trial court should exclude such evidence. Jinro Am., Inc. v. Secure Invs., Inc., 266 F.3d 993, 4 United States v. Gwaltney, 790 F.2d 1378, 1381 (9th Cir. 1986). Because 1004 (9th Cir. 2001). Likewise, expert testimony that merely tells the jury what result to reach 5 6 is inadmissible. Fed. R. Evid. 704, Advisory Committee Note (1972); see, e.g., United States v. 7 Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (“When an expert undertakes to tell the jury what result 8 to reach, this does not aid the jury in making a decision, but rather attempts to substitute the 9 expert’s judgment for the jury’s.”). 10 After reviewing the submitted materials, the Court assumes Ms. Gill is qualified as an 11 12 expert and will begin with the question of relevancy, i.e. whether her testimony will assist the 13 jury in understanding evidence or determining a fact in issue. Home Depot contends that her 14 opinions are within a layperson’s knowledge and therefore not necessary. Dkt. #28 at 12–13. 15 Plaintiff barely addresses this point. See Dkt. #36 at 9 (“All that is required is that the expert 16 testimony be helpful; not necessary. Ms. Gill’s testimony clearly more than meets this ‘low bar’ 17 18 in providing testimony that advances the two material aspects of Plaintiffs case: foreseeability 19 of the space for customers to walk through and breach of the duty of care in keeping the 20 walkway free of a hazard”). It is not enough for Plaintiff to correctly state the applicable law; 21 Plaintiff must also analyze the content of Ms. Gill’s testimony. The Court has done so and 22 23 concludes the jury cannot receive appreciable help from Ms. Gill’s testimony. Ms. Gill has 24 reviewed the same evidence that will be presented to the jury—photos of the scene, exhibits, 25 witness testimony—and stated observations that would be obvious to any layperson. The Court 26 agrees with Home Depot that “[t]he normal life experiences of a jury would permit it to draw its 27 own conclusions regarding the safety of the basket holder at the Home Depot store,” because 28 ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF JOELLEN GILL - 6 Case 2:22-cv-00408-RSM Document 49 Filed 10/02/23 Page 7 of 8 1 “[j]urors would likely have visited similar stores, used similar shopping baskets that were stored 2 in similar shopping basket holders and generally be aware of where and how shopping basket 3 holders are located.” Dkt. #28 at 12–13. The vast majority of Ms. Gill’s opinions about 4 foreseeable pedestrian walkways, Home Depot’s policies for walkways and merchandising 5 6 7 displays, and where a person looks when they shop are all within the knowledge and experience of ordinary lay people. This significantly undermines the relevancy of her testimony. 8 Home Depot also argues that her testimony as to whether Plaintiff went through a 9 foreseeable walkway is not relevant or reliable because she incorrectly states that the width of 10 the “walkway” chosen by Plaintiff was 40 inches, that number actually being the distance from 11 12 the yellow bollard to the wall, not the distance between the bollard and the white cabinet 13 pictured above. Id. at 10–11. Again, Plaintiff’s response to this is woefully inadequate. 14 Plaintiff maintains that “the question of inaccurate measurements is subject to dispute, and Ms. 15 Gill relied on measurements her assistant provided.” Dkt. #36 at 6. Plaintiff also cites his 16 deposition testimony where he was shown the photo and stated that the white cabinet was 17 18 “further back” at the time. Id. at 7. The Court will not act as a factfinder on the ultimate issues 19 in this case, but it is unbelievable that Ms. Gill could accept her colleague’s measurement of 40 20 inches for the “walkway” while at the same time relying on the photo above to determine facts 21 about that walkway. She asserts that the basket is 13.75 inches tall, presumably based on 22 23 eyeballing the photo above. In that photo, the basket dominates the “walkway,” appearing to 24 occupy somewhere from 80% to 100% of the space between the yellow bollard and the white 25 cabinet. Taken together, Ms. Gill’s testimony about the walkway is so inconsistent as to be 26 irrelevant. The Court does not need to rule on the width of the walkway to conclude that Ms. 27 Gill’s testimony is unreliable, relying on subjective belief or unsupported speculation. 28 ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF JOELLEN GILL - 7 Case 2:22-cv-00408-RSM Document 49 Filed 10/02/23 Page 8 of 8 1 Given all of the above, and having reviewed the relevant briefing and the remainder of 2 the record, the Court hereby finds and ORDERS that Home Depot’s Motion to Exclude 3 Testimony of Joellen Gill, Dkt. #28, is GRANTED. 4 5 6 DATED this 2nd day of October, 2023. 7 8 9 10 A RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF JOELLEN GILL - 8
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