An expert witness on slip and fall injuries recently used by Wal-Mart to successfully defend a personal injury lawsuit was affirmed by the United States 6th Circuit Court of Appeals last week despite objections from the injured plaintiff. In its ruling, the 6th Circuit clarified the standard for non-scientific expert witnesses under the guiding principles of expert admissibility found in Daubert v Merrell Dow.
Wal-Mart Injury Leads to Lawsuit
Plaintiff Carolyn Wood filed her personal injury lawsuit against Wal-Mart after tripping on a quarter-inch lip of sidewalk in front of one of the company’s Tennessee stores and seriously injuring her hand. Ms. Wood fell where the asphalt of the parking lot transitions into the sidewalk, which was designed to be flush, but had become uneven after the parking lot asphalt settled. Ms. Wood’s lawsuit alleged two theories of recovery: 1) Wal-Mart was negligent for failing to repair and warn of the quarter-inch change in elevation; and 2) Wal-Mart was liable under the legal theory of negligence per se because the quarter-inch lip violated applicable building codes.
Negligence per se allows recovery for injuries suffered because the defendant violated a law, regulation, or, in this case, construction codes. Unlike general negligence, which considers a number of factors, negligence per se only requires a plaintiff to prove that a violation of an applicable law occurred and the injury resulted. In this case, Ms. Wood’s per se argument relied on the interpretation of two building codes that defined the area where she fell as a “means of egress,” which are required to be flush. During trial, the parties presented competing expert witnesses to interpret the codes, with Wal-Mart using an architect named Mr. Edwards to inform the jury that the area in question was not considered a means of egress, and therefore the store was not in violation of building codes.
The trial court did not instruct the jury on negligence per se, meaning that Ms. Wood’s only hope of recovery was on a general negligence claim. When the jury found in favor of Wal-Mart, Wood filed an appeal claiming that Mr. Edwards was not a reliable expert witness under the requirements of Daubert because his testimony was not adequately supported by scientific evidence or methodology.
Sixth Circuit Affirms Wal-Mart Trip and Fall Expert Witness
On appeal, the 6th Circuit rejected both of Ms. Wood’s challenges to Wal-Mart’s use of Mr. Edwards as an expert witness regarding the applicable building codes. Wood, citing Daubert’s requirements on expert witness reliability, argued that Mr. Edwards should not have testified because his analysis of the situation was not supported by generally accepted authority or reliable testing, did not reflect industry standards, and did not offer peer reviewed or published opinions. These factors are critical to a Daubert analysis, and Edwards’ testimony was built solely on his personal knowledge and experience with construction and the housing codes in question.
The 6th Circuit acknowledged the lack of support for Edwards’ opinions, however, pointed out that the list of Daubert factors “neither necessarily nor exclusively applies to all experts or in every case.” The Court clarified that non-scientific expert witnesses, like Mr. Edwards, can establish the relevant reliability by drawing on personal knowledge or experience, and it is up to a trial judge to determine if a non-scientific expert relying on experience is sufficiently reliable given the circumstances. In the Wal-Mart case, Mr. Edwards had been an architect for over 40 years and had specific experience with the codes in question – more than enough to justify the trial court’s admission of his expert testimony.
By affirming Wal-Mart’s expert witness in this trip and fall case, the 6th Circuit reminded litigants that trial courts have a great deal of latitude when allowing testimony from a non-scientific expert whose testimony is based on personal experience. Under Daubert, judges are afforded room to evaluate a non-scientific expert’s qualifications and experience when determining admissibility of testimony.