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Cameron v. Lowes Home Centers Inc.

United States District Court, D. Arizona

June 26, 2019

Christine Cameron, Plaintiff,
v.
Lowes Home Centers Incorporated, et al., Defendants.

          ORDER

          Honorable John J. Tuchi United States District Judge

         At issue is Defendant Lowe's Home Centers, LLC's Daubert Motion to Exclude Testimony of Plaintiff's Expert Alex Balian (Doc. 152, Mot.), to which Plaintiff Christine Cameron filed a Response (Doc. 166, Resp.), and Defendant filed a Reply (Doc. 181, Reply). The Court finds this matter appropriate for decision without oral argument. See LRCiv 7.2(f).

         I. LEGAL STANDARD

         Rule 702 of the Federal Rules of Evidence tasks the trial court with ensuring that any expert testimony provided is relevant and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1999). “Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.” Fed.R.Evid. 401. The trial court must first assess whether the testimony is valid and whether the reasoning or methodology can properly be applied to the facts in issue. Daubert, 509 U.S. at 592-93. Factors to consider in this assessment include: whether the methodology can be tested; whether the methodology has been subjected to peer review; whether the methodology has a known or potential rate of error; and whether the methodology has been generally accepted within the relevant professional community. Id. at 593-94. “The inquiry envisioned by Rule 702” is “a flexible one.” Id. at 594. “The focus . . . must be solely on principles and methodology, not on the conclusions that they generate.” Id.

         The Daubert analysis is applicable to testimony concerning non-scientific areas of specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). However, the Daubert factors may not apply to testimony that depends on the knowledge and experience of the expert, rather than a particular methodology. United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000) (citation omitted) (finding that Daubert factors do not apply to police officer's testimony based on 21 years of experience working undercover with gangs). An expert qualified by experience may testify in the form of opinion if his or her experiential knowledge will help the trier of fact to understand evidence or determine a fact in issue, as long as the testimony is based on sufficient data, is the product of reliable principles, and the expert has reliably applied the principles to the facts of the case. See Fed. R. Evid. 702; Daubert, 509 U.S. at 579.

         The advisory committee notes on the 2000 amendments to Rule 702 explain that Rule 702 (as amended in response to Daubert) “is not intended to provide an excuse for an automatic challenge to the testimony of every expert.” See Kumho Tire Co., 526 U.S. at 152. “Vigorous 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 595 (citation omitted).

         II. ANALYSIS

         Defendant moves to exclude the testimony of Plaintiff's merchandising practices expert, Alex J. Balian, arguing that Mr. Balian's opinion is unreliable, speculative, unhelpful to the jury, and lacking in foundation. (Mot. at 5.) Plaintiff contends that Mr. Balian's testimony is relevant and he reliably applies the facts and data of the case to the industry standards. (Resp. at 1.)

         A. Mr. Balian's Testimony Regarding Length of Time Alleged Dangerous Condition Existed and Whether Defendant Followed Its Policies and Procedures

         Defendant argues that Mr. Balian's opinion regarding the length of time the alleged dangerous condition existed and whether Defendant followed its policies and procedures lacks foundation and is speculative. (Mot. at 9.) Defendant also contends that the employee testimony Mr. Balian relies on for his own opinion does not require expert assistance to be understood by the trier of fact because the employee testimony is not complex and contains no scientific or technical data. (Reply at 2.) Plaintiff responds that Mr. Balian's opinion is reliable because it is grounded on his experience and Defendant's sales data of the item at issue in this case, namely, a box of flooring tile. (Resp. at 8.)

         In his report, Mr. Balian makes multiple inferences. He infers that a dangerous condition existed with respect to how the flooring tile boxes were stacked and that the alleged dangerous condition “would have been discovered” if an inspection had occurred following the last customer purchase of the flooring tile four days prior to the incident in question. (Mot. Ex. C at 2.) Mr. Balian bases his conclusion that Defendant failed to follow its policies and procedures on the deposition testimony of Defendant's employee, Ms. Janet Husband. (Mot. Ex. B at 1.) Specifically, Mr. Balian states that the “accepted retail practice” was “confirmed” when Ms. Husband stated that the boxes of tile “should be positioned flat.” (Mot. Ex. B at 3.) Mr. Balian goes on to reference Ms. Husband's deposition testimony five additional times to support and confirm his conclusions. (Mot. Ex. B at 3; Mot. Ex. C at 2.)

         The Court is not persuaded that Mr. Balian's opinion is reliable regarding the length of time the alleged dangerous condition existed. When the report of an expert witness offers no foundation for one of his conclusions, a court may properly exclude that portion of the opinion under Rule 702, Daubert, and Kumho Tire. Provident Life & Accident Ins. Co. v. Fleischer, 18 Fed. App'x 554, 556 (9th Cir. 2001). Mr. Balian does not, in fact, know how long the box of tile was in the alleged unsafe position, and his testimony that Defendant failed to implement its procedures by not inspecting for four days based on the last purchase of the box of tile is purely speculative. (Mot. Ex. C at 2.) Therefore, Mr. Balian's testimony regarding the length of time the alleged dangerous condition existed and whether Defendant followed its policies and procedures lacks foundation, and the Court will exclude it.

         Furthermore, Rule 702 states that a witness who is qualified as an expert by experience may testify if his specialized knowledge will “help the trier of fact to understand the evidence” of the case. See Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007). Here, Mr. Balian's opinion is not necessary to help the trier of fact understand Ms. Husband's deposition testimony regarding whether Defendant followed its policies and procedures. Mr. Balian's opinion does not expound upon Ms. Husband's testimony with principles and references from his experience that support his own conclusion that Defendant did not follow its policies and procedures. (Mot. Ex. B at 4.) Instead, he simply states his conclusions without the requisite support and “confirms” them from what Ms. Husband has stated. (Mot. Ex. B at 3.) Because the jury can weigh Ms. Husband's testimony for itself without Mr. Balian's assistance, Mr. Balian's opinion is irrelevant, and the Court will exclude it for this additional reason.

         B. Mr. Balian's Testimony Regarding Proper ...


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