Duane Alsip v. Wal-Mart Stores East, LP ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15538
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-00476-CG
DUANE ALSIP,
as Administrator and Personal Representative
of the Estate of Emma Alsip,
Plaintiff - Appellant,
versus
WAL-MART STORES EAST, LP,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(August 19, 2016)
Before JORDAN, JULIE CARNES and BLACK, Circuit Judges.
PER CURIAM:
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Plaintiff Duane Alsip, proceeding as administrator and personal
representative of the estate of Emma Alsip, appeals the district court’s orders
excluding Plaintiff’s proffered expert testimony and granting summary judgment in
favor of Defendant Wal-Mart Stores East, LP (Wal-Mart) on Plaintiff’s claims for
personal injury arising from an accident in which Ms. Alsip slipped on a crosswalk
in the Wal-Mart parking lot during a rain shower. Plaintiff contends the district
court erred in finding the proffered expert’s testimony to be unreliable and in
granting summary judgment when genuine issues of material fact existed regarding
whether Wal-Mart met the applicable standard of care. After review, we affirm.
I. BACKGROUND
On April 24, 2013, on a rainy day in Foley, Alabama, then-83-year-old
Emma Alsip, her daughter, and a friend drove to a Wal-Mart store. Ms. Alsip’s
daughter pulled the vehicle up near the front entrance to the Wal-Mart, and Ms.
Alsip and her friend exited the vehicle onto the crosswalk. While on the painted
yellow crosswalk stripe, Ms. Alsip slipped and fractured her hip. Ms. Alsip’s
daughter, Ms. Alsip’s friend, and an unknown Wal-Mart customer helped Ms.
Alsip back into the vehicle.
On August 26, 2014, Ms. Alsip sued Wal-Mart and alleged that Wal-Mart
either negligently or wantonly maintained the crosswalk such that it was not slip
resistant in accordance with industry standards. At the core of Ms. Alsip’s case is
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the allegation that Wal-Mart did not include aggregate in the paint mixture to
ensure a high-traction walking surface. In support of this allegation, Ms. Alsip
proffered among other things the testimony of Russell Kendzior, a 25-year veteran
of the slip-and-fall prevention industry. After reviewing deposition testimony in
this case, the Wal-Mart surveillance video of the accident, photographs of the Wal-
Mart parking lot and crosswalk, and pertinent industry standards and guidelines,
Kendzior concluded that the crosswalk stripes were improperly painted so as to
create an unreasonably dangerous condition. Kendzior identified three defects in
support of his conclusion that the crosswalk stripes were not a slip-resistant
surface: (1) the top layer of paint did not contain an adequate amount of aggregate;
(2) the paint was improperly applied so as not to adhere; and (3) the underlying
layer of paint should have been removed by mechanical shot blasting. Kendzior
also opined that Wal-Mart’s failure to provide a slip-resistant parking lot in
accordance with industry standards proximately caused Ms. Alsip’s injury.
Wal-Mart moved to exclude Kendzior’s testimony. Wal-Mart cited portions
of Kendzior’s deposition testimony in which he states that the best way to
determine whether an area is a high-traction area is to test the slip resistance of the
surface. Wal-Mart noted that Kendzior performed no tests of the crosswalk stripes
and in fact never visited the site of Ms. Alsip’s accident. Wal-Mart identified
multiple slip-resistance tests that it conducted in 2015 in accordance with
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Kendzior’s description of industry standards for slip-resistance testing. Wal-Mart
contended that its tests contradicted Kendzior’s conclusion that the crosswalk
stripes were not slip resistant.
Wal-Mart also argued that Kendzior’s opinion regarding aggregate was
unreliable and inconsequential. According to Wal-Mart, Kendzior’s opinion that
aggregate was not present, which was based primarily upon Kendzior’s visual
inspection of photographs, was unreliable because Kendzior offered no scientific
basis for visually determining whether aggregate is present. In any event, Wal-
Mart contended, Kendzior’s opinion was contradicted by record evidence showing
that aggregate was present in the paint mixture. Finally, Wal-Mart stated that it
could and did achieve a slip-resistant surface in accordance with industry standards
without including aggregate in the paint.
In conjunction with its motion to exclude Kendzior’s testimony, Wal-Mart
moved for summary judgment. Wal-Mart contended that it is not liable under
Alabama law for slippery conditions caused by rainwater unless Plaintiff can prove
that the conditions were unreasonably dangerous above and beyond the typical
danger posed by slipperiness due to a naturally occurring event. Wal-Mart noted
that Ms. Alsip’s witnesses testified only that the area was slippery, which is to be
expected on an outdoor surface in the rain, and that Wal-Mart’s three different tests
of the crosswalk confirm that it met industry standards for a high-traction area.
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During the pendency of this litigation, Ms. Alsip passed away, and Plaintiff
Duane Alsip, the administrator and personal representative of Ms. Alsip’s estate,
substituted in this action. Plaintiff responded in opposition to Wal-Mart’s motion
to exclude and argued that Kendzior’s testimony was supported by years of
experience, industry standards, and a comprehensive review of the photographic
and video evidence. According to Kendzior, the gloss of the paint would look
different in the photographs if aggregate were present. Plaintiff’s response also
included Kendzior’s explanation as to why he did not test the slip resistance of the
crosswalk stripes: a belated slip-resistance test would not reflect the slip resistance
of the surface at the time of the accident, which could have either increased or
decreased over time depending upon the variables. Finally, Plaintiff relied on an
affidavit from Kendzior to explain the flaws in Wal-Mart’s experts’ tests. In
response to Wal-Mart’s motion for summary judgment, Plaintiff contended this
was a structural defect case and the structural defect was Wal-Mart’s failure to
make its painted surface slip resistant in accordance with industry standards.
The district court addressed Wal-Mart’s motions in two separate orders.
First, the district court considered Kendzior’s testimony under Federal Rule of
Evidence 702 and the Daubert1 standard. The district court reasoned that by
Kendzior’s own admission Kendzior could not determine whether the crosswalk
1
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
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stripes were a high-traction area at the time of Ms. Alsip’s accident. Kendzior
admitted that aggregate is not the only means by which a surface can be made a
high-traction area and that the only way to determine slip resistance is to test the
surface. The district court deemed unreliable Kendzior’s opinion that the
crosswalk stripes were not slip resistant in accordance with industry norms because
the opinion was supported only by Kendzior’s observation as to the absence of just
one of several possible means of improving slip resistance and by the fact that Ms.
Alsip fell. Therefore, the district court excluded Kendzior’s testimony as
unreliable.
The district court next considered Wal-Mart’s motion for summary
judgment. The district court reasoned that it was Plaintiff’s burden under Alabama
law to prove that the crosswalk was unreasonably dangerous. After considering
the undisputed facts and Plaintiff’s argument regarding disputed facts, the district
court determined that “[t]here is simply no evidence, other than the fact that Ms.
Alsip fell, that the area was unreasonably [un]safe.” Therefore, the district court
granted summary judgment in favor of Wal-Mart.
II. STANDARD OF REVIEW
We review for abuse of discretion a district court’s decision to exclude
expert testimony. Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 987 (11th
Cir. 2016). A district court abuses its discretion if it applies an incorrect legal
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standard, follows improper procedures, or makes a clearly erroneous finding of
fact. Original Brooklyn Water Bagel Co. v. Bersin Bagel Grp., LLC, 817 F.3d 719,
724 (11th Cir. 2016). “Because the task of evaluating the reliability of expert
testimony is uniquely entrusted to the district court, we give the district court
considerable leeway in the execution of its duty.” Seamon, 813 F.3d at 987
(quotation marks and alteration omitted). Thus, when a district court excludes
unreliable expert testimony under Daubert, we defer to the district court unless its
decision is manifestly erroneous. Id.
We review de novo a district court’s order granting summary judgment and,
drawing all reasonable inferences in favor of the non-movant, consider whether the
movant met its burden of showing that there was no genuine issue of material fact
and that the moving party was entitled to judgment as a matter of law. See
Anderson v. Cagle’s, Inc., 488 F.3d 945, 951 (11th Cir. 2007).
III. DISCUSSION
We discuss in turn whether the district court abused its discretion in
excluding Kendzior’s testimony and whether the district court erred in granting
summary judgment in favor of Wal-Mart.
A. Exclusion of Expert Testimony
When determining admissibility of expert opinion testimony, a district court
must consider whether (1) the expert is qualified to testify as to the subject matter,
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(2) the expert’s methodology is sufficiently reliable, and (3) the expert’s testimony
will assist the trier of fact. See Seamon, 813 F.3d at 988. We agree with the
district court that there is no real argument regarding Kendzior’s experience or
knowledge in the field of slip resistance. We also believe that testimony regarding
slip resistance would generally assist the trier of fact in this action. The more
difficult issue is the reliability of Kendzior’s testimony, more specifically the
reliability of the methodology by which Kendzior opined that the Wal-Mart
crosswalk stripes were not slip resistant in accordance with industry standards.
On this record, we take no issue with Kendzior’s assertion that, after 25
years in the slip-and-fall prevention industry, he can determine the presence or
absence of aggregate by examining a picture. Kendzior stated that aggregate has a
distinct look that would be visible in a photograph, and Wal-Mart failed to rebut
that point. The problem is Kendzior’s follow-on opinion: because the painted
yellow crosswalk lines did not contain aggregate, they were not slip resistant. It is
this opinion that the district court found to be the product of an unreliable
methodology, and we agree.
Both the documents to which Kendzior directs our attention and Kendzior
himself identify four discrete methods of achieving a slip-resistant surface:
(1) aggregate; (2) cross-cut grooving; (3) texturing; or (4) other appropriate means.
The absence of aggregate does not render a surface non-conforming if the surface
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contains cross-cut grooving, texturing, or another appropriate means of creating
traction. Thus, Kendzior’s determination upon inspection of photographs that
there was no aggregate in the paint does not in and of itself support the conclusion
that the crosswalk stripes were not slip resistant. Cf. McClain v. Metabolife Int’l,
Inc., 401 F.3d 1233, 1243 (11th Cir. 2005) (discussing the effect of flawed logic on
the reliability of expert testimony).
By Kendzior’s own admission, he does not know the actual slip resistance of
the crosswalk stripes at the time of Ms. Alsip’s accident or whether the crosswalk
stripes qualified as a high-traction area. According to Kendzior, the only way to
determine slip resistance and thus whether an area is a high-traction area is to
conduct a precise, contemporaneous test. Despite this testimony, Plaintiff
attempted to introduce Kendzior’s opinion that the crosswalk stripes were not slip
resistant and were therefore unreasonably dangerous. See Chapman v. Procter &
Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) (“Under Daubert, the
district judge asked to admit scientific evidence must determine whether the
evidence is genuinely scientific, as distinct from being unscientific speculation
offered by a genuine scientist.” (quotation marks omitted)). Because Kendzior’s
own testimony—as presented to the district court 2—suggests that his opinion is
2
Both in the district court and on appeal, Plaintiff contended that Wal-Mart’s alleged
failure to include aggregate in the paint is the reason the crosswalk stripes were not slip resistant
in accordance with industry standards. In his reply brief, Plaintiff raises for the first time
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based on flawed reasoning and speculation, the district court did not abuse its
discretion when it excluded as unreliable the proffered expert testimony of Russell
Kendzior. 3
B. Summary Judgment in Favor of Wal-Mart
In the district court and on appeal, Plaintiff argues at length about the
dispute of fact regarding the presence or absence of aggregate in the paint that
Wal-Mart used for the crosswalk lines. In so doing, Plaintiff misapprehends both
Wal-Mart’s argument and the basis for the district court’s summary judgment.
Irrespective of whether there was aggregate in the paint, Plaintiff fails to offer
evidence from which a jury could reasonably conclude that the crosswalk lines
were not slip resistant.
portions of Kendzior’s testimony in which Kendzior considers and dispels other means by which
Wal-Mart might have made the crosswalk lines slip resistant. Specifically, Plaintiff argues at
length that Kendzior considered whether the crosswalk lines might have benefitted from the
traction of the underlying asphalt in the Wal-Mart parking lot. According to Kendzior, because
Wal-Mart painted layer upon layer without removing the underlying layer, the asphalt would not
have gone through to the top layer. Because Plaintiff failed to make this argument to the district
court and in fact did not raise this argument on appeal until the reply brief, we decline to
consider whether this aspect of Kendzior’s testimony would cure the reliability issue argued by
the parties and decided by the district court. See Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275,
1283 (11th Cir. 2015) (declining to consider an argument to exclude expert testimony first raised
on appeal during oral argument); Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“[W]e
do not address arguments raised for the first time in a . . . reply brief.”).
3
Plaintiff has not raised and we therefore do not consider whether the district court
should have excluded only the portions of Kendzior’s testimony that are based upon an
unreliable methodology.
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As we discuss above, aggregate is not an essential ingredient for a slip-
resistant surface. In fact, Plaintiff’s own expert concedes that he does not know
whether the crosswalk lines met industry standards for slip resistance. Plaintiff
identifies no lay testimony or circumstantial evidence from which a jury could
reasonably infer that the crosswalk lines were any more dangerous than a typical
paved outdoor surface on a rainy day. See Terrell v. Warehouse Groceries, 364
So. 2d 675, 677 (Ala. 1978) (“When it rains, surfaces naturally become more
slippery than usual a fact with which a customer is sufficiently familiar.”).
Therefore, Plaintiff has failed to establish a genuine issue of material fact regarding
whether the crosswalk lines suffered from a “design, construction, or condition
abnormality” or otherwise constituted an unreasonably dangerous condition. Wal-
Mart Stores, Inc. v. White, 476 So. 2d 614, 617 (Ala. 1985); see also Terrell, 364
So. 2d at 677. The district court correctly determined that Wal-Mart was entitled
to judgment as a matter of law.
IV. CONCLUSION
For the foregoing reasons, the orders of the district court are AFFIRMED.
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