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Henkel v. Albertsons, LLC

United States District Court, D. Colorado

June 11, 2015

REBECCA HENKEL, Plaintiff,
v.
ALBERTSONS, LLC, a limited liability corporation formed pursuant to the laws of Delaware, Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S EXPERT WITNESS ANNE STODOLA (Docket No. 39), and ORDER DENYING AS MOOT DEFENDANT'S UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE A REPLY (Docket No. 45)

MICHAEL J. WATANABE, Magistrate Judge.

This is a slip-and-fall case. Defendant moved to "strike" Plaintiff's expert report under Federal Rule of Evidence 702. (Docket No. 39.) District Judge Christine M. Arguello referred the motion to the undersigned. (Docket No. 40.) The Court has reviewed the parties' filings (Docket Nos. 39 & 44), taken judicial notice of the Court's entire file in this case, and considered the applicable Federal Rules of Evidence and case law. Now being fully informed, the Court grants Defendant's motion.

Legal Standards

As recently stated by Judge Arguello:

Under Daubert, the trial court acts as a "gatekeeper" of proffered expert testimony by reviewing that testimony for relevance pursuant to F.R.E. 401 and reliability pursuant to F.R.E. 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-95 (1993); see also United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) ("the district court must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony."). The "gatekeeping" requirement set forth in Daubert "applies not only to testimony based on scientific' knowledge, but also to testimony based on technical' and other specialized' knowledge." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). The proponent of a challenged expert must demonstrate by a preponderance of the evidence that the expert's testimony and opinion is admissible. [ Nacchio, 555 F.3d at 1241]; F.R.E. 702 advisory comm. notes.
Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule 702 provides that a witness who is qualified as an expert by "knowledge, skill, experience, training, or education" may testify 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.

Camara v. Matheson Trucking, Inc., No. 12-cv-03040-CMA-CBS, 2015 WL 161271, at *2 (D. Colo. Jan. 13, 2015).

Anne Stodola's Expert Report

Anne Stodola's expert report runs six pages. The first three-and-a-half pages recite the facts of the case as gleaned from a site visit, a surveillance video of Plaintiff's fall, and witness statements. On page four, Stodola sets out Defendant's company policy on spills, and concludes that Defendant's response to inclement weather on the day of Plaintiff's fall-specifically, using dry mops-was not effective because shoppers continued to appear to slip and slide entering the store.

From there, Stodola concludes that rubber mats should have been placed next to the door. On page 5, she explains that placing mats at building entrances during inclement weather is recommended by an industry-safety group. She then notes that Defendant placed mats on one side of the door, but not the other-a ...


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