Brenda J. Alcala v. Marriott International, Inc. and Courtyard Management Corporation d/b/a Quad Cities Courtyard Management Corporation ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1453
Filed November 27, 2019
BRENDA J. ALCALA,
Plaintiff-Appellee,
vs.
MARRIOTT INTERNATIONAL, INC. and COURTYARD MANAGEMENT
CORPORATION d/b/a QUAD CITIES COURTYARD MANAGEMENT
CORPORATION,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Patrick A. McElyea,
Judge.
The defendant hotel in a slip-and-fall case appeals the jury verdict.
AFFIRMED.
Mark McCormick of Belin McCormick, P.C., Des Moines, and Danny Lane
Worker of Lewis Brisbois, Chicago, Illinois, pro hac vice, for appellants.
Michael K. Bush and John C. Bush of Bush, Motto, Creen, Koury, Halligan,
Davenport, for appellee.
Heard by Tabor, P.J., and Mullins and May, JJ.
2
TABOR, Presiding Judge.
Brenda Alcala is not the person she was, and she never will
be. She was an active and successful wife, mother, grandmother
and employee, a go-getter on the job and a rock for the family. She
didn’t sit on the couch. She was engaged with life and with her family
and relished physical activity. Now, she has a painful disability that
prevents her from doing the most common of physical activities, has
precluded her from traveling as she loved to do, and makes every
activity a challenge. As a result of this injury Ms. Alcala spends many
evenings on the couch, elevating her foot, dealing with the pain, and
wishing she could be who she was and do what she did before the
injury. She has lost so much of what brought enjoyment to her life.
Alcala’s diminished condition after a slip and fall outside a Bettendorf hotel,
as described in her appellate brief, persuaded a jury to award her substantial
compensatory damages. The defendant, Marriott International, Inc., appeals the
verdict. Marriott contends the damages were excessive and resulted from the
jury’s passion and prejudice against the corporation. Marriott also seeks a new
trial based on expert witness testimony allowed by the district court.
For the reasons explained below, we affirm.
I. Facts and Prior Proceedings
In the winter of 2010, then fifty-year-old Alcala traveled from Texas to the
Quad Cities for business. Alcala worked as a software consultant for Genesis
Health Systems. While in Iowa, she stayed at the Bettendorf Courtyard by Marriott.
Around 7:30 a.m., on January 21, Alcala walked out Marriott’s front door. In front
of the hotel, she slipped on the icy sidewalk and fell to the ground. Another hotel
guest saw her lying on her back and called for help.
The night before, Bettendorf experienced a wintery mix of freezing rain and
snow. The Marriott did not employ a twenty-four-hour maintenance worker. So
housekeeper Margaret DePaepe was responsible for removing snow and salting
3
the sidewalks overnight. DePaepe testified she did so diligently until her shift
ended at 6:00 a.m. on January 21. Two hours later, the maintenance worker’s
shift began. The parties dispute what happened between 6:00 a.m. and 8:00 a.m.
The hotel manager testified the front desk person was responsible between those
times. But that person testified she did not salt the sidewalks.
Marriott kept logs of snow and ice removal for the relevant times. But those
records showed inconsistencies. For instance, some timestamps were not in
chronological order. And DePaepe testified some checks entered during her shift
were not in her handwriting.
Testimony about the condition of the sidewalk varied. Several hotel guests
testified the sidewalk was slippery. One guest testified the sidewalk and parking
lot were so slippery he chose to walk on the grass instead. No guest could recall
seeing salt on the sidewalk. Paramedics testified the sidewalk was slick when they
arrived. Responders from the fire department put down salt themselves so they
could attend to Alcala.
In contrast, Marriott workers recalled the sidewalk being well-salted. One
hotel worker testified she brought Alcala a blanket without concern for the sidewalk
being slippery. Front desk attendant Tammy Hornbuckle testified she saw Alcala
hurry through the lobby and out the front door, carrying a twelve-pack of water
bottles. After Alcala fell, Hornbuckle looked out the front door and saw salt pellets
on the sidewalk. Hornbuckle called 911 but did not go outside.
On the icy ground outside, Alcala felt “immediate pain.” She saw her right
foot was “dangling backwards” from its normal position. Alcala later learned she
4
fractured her ankle in three places. She required several surgeries to repair the
damage.
Before trial, Alcala retained Russell J. Kendzior, an expert in slip, trip, and
fall prevention.1 Kendzior reviewed statements by other witnesses in the case. At
trial, the plaintiff offered his conclusion that Marriott did not adequately attend to
the icy sidewalk that January morning. In Kendzior’s opinion, the hotel’s inattention
caused Alcala’s fall.
The jurors agreed with Kendzior. They awarded Alcala damages totaling
$4,916,439.2 The verdict included $3.5 million in damages for pain and suffering
and loss of function of the body. Marriott unsuccessfully moved for new trial.
Marriott appeals.3
II. Analysis
Marriott raises two claims on appeal.4 First, it contends the jury verdict was
excessive because Alcala pursued a theory of the case and offered evidence to
inflame the jury’s passion and prejudice against the hotel chain. Second, Marriott
1
The district court found Kendzior could testify as an expert, and Marriott does not
challenge that finding on appeal.
2
The jury awarded $44,466 for past medical expenses; $252,025 for future partial care
needs; and $159,734 for past lost wages. The jury also awarded $960,244 for loss of
future earning capacity; $583,000 for past pain and suffering; $1,167,000 for future pain
and suffering; $583,000 for past loss of function of the body; and $1,167,000 for future
loss of function of the body.
3
This case is not new to our appellate courts. The parties first tried the case in February
2014. Marriott appealed. Our court determined the hotel was entitled to a new trial
because the district court did not instruct the jury on the continuing storm doctrine and
other issues. See Alcala v. Marriott Int’l, Inc., No. 14-1058, 2015 WL 5577844 (Iowa Ct.
App. Sep. 23, 2015). On further review, the supreme court vacated our decision, but also
ordered a new trial based on instructional error. See Alcala v. Marriott Int’l, Inc., 880
N.W.2d 699 (Iowa 2016). This appeal is from the second trial held in March 2018.
4
Alcala contends Marriott did not state in its brief how it preserved error, and we should
consider that omission as a waiver of those claims. See Iowa R. App. P. 6.903(2)(g)(1).
We choose to overlook that omission and address the issues preserved on appeal.
5
appeals a spate of rulings on its objections to testimony from Kendzior, Alcala’s
slip-and-fall expert. We will review each claim for an abuse of discretion. See
Giza v. BNSF Ry. Co., 843 N.W.2d 713, 718–19 (Iowa 2014); see also Haskenhoff
v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 570 (Iowa 2017).
A. Excessive Verdict
1. Iowa R. Civ. P. 1.1004(4)
Marriott moved for a new trial under Iowa Rule of Civil Procedure 1.1004(4),
contending the jury’s $4.9 million verdict was a product of passion or prejudice.
The district court rejected Marriott’s arguments.
On appeal, Marriott quotes passages from Alcala’s opening statement and
closing argument focusing on the defendant’s “corporate nature” and the jurors’
ability to “enforce safety rules” through the civil jury trial. Marriott also chronicles
comments from Kendzior’s testimony that it considers inflammatory. Marriott
complains the plaintiff’s overall approach appealed to the jurors’ “reptilian” instinct
to protect themselves and their community from harm. See, e.g., Louis J. Sirico,
Jr., The Trial Lawyer and the Reptilian Brain: A Critique, 65 Clev. State. L. Rev.
411 (2009) (“[T]he most primitive part of the human brain traces its evolutionary
beginning to reptiles . . . . An effective appeal to the reptile brain . . . is an appeal
to protect ourselves, our family, and our community.”). Alcala disputes this
characterization of her counsel’s trial strategy and Kendzior’s testimony.
Error preservation. To begin, Alcala argues Marriott did not preserve error
on its challenges to counsel’s comments. She notes the defense did not object
during opening statements or closing arguments and did not raise those claims in
its motion for new trial.
6
Parties need not make contemporaneous objections to closing argument to
preserve error for appeal. See Kinseth v. Weil-McLain, 913 N.W.2d 55, 67 (Iowa
2018) (finding “a party does not necessarily waive an objection to a remark made
in a closing argument if the party fails to make a contemporaneous objection”
because counsel need not “jeopardize his position with the jury by constant
objections” (citing Andrews v. Struble, 178 N.W.2d 391, 401 (Iowa 1970))). But
counsel must move for a mistrial before the court submits the case to the jury so
the court has “ample opportunity to ‘admonish counsel or instruct the jury’ before
deliberations begin.” Id. at 68 (quoting Andrews, 178 N.W.2d at 401).
Marriott did not move for mistrial. And Marriott’s motion for new trial did not
refer to counsel’s comments. In fact, Marriott’s motion stated, “It is unnecessary
in this case to look any further than the testimony of . . . Kendzior for evidence that
fostered passion and prejudice in the jury.”
Marriott now claims it preserved error by generally asserting the verdict
resulted from passion or prejudice. But the district court did not address any
ground of error related to opening statements or closing arguments. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”). So we likewise limit our
review of Marriott’s excessive-verdict challenge to its targeted complaints about
Kendior’s testimony.
Merits. “The determination of damages is traditionally a jury function” and
only for the most compelling reasons will we disturb the verdict. Estate of Pearson
v. Interstate Power and Light Co., 700 N.W.2d 333, 345 (Iowa 2005). A party may
7
receive a new trial if the jury awards excessive damages “appearing to have been
influenced by passion or prejudice.” See Iowa R. Civ. P. 1.1004(4). If a verdict
results from passion or prejudice, a new trial should be granted, but if it is “merely
excessive because not supported by sufficient evidence[,] even in the absence of
passion or prejudice[,] justice may be effectuated by ordering a remittitur of the
excess as a condition for avoiding a new trial.” Schmitt v. Jenkins Truck Lines,
Inc., 170 N.W.2d 632, 659 (Iowa 1969).
“[A] flagrantly excessive verdict raises a presumption that it is the product
of passion or prejudice.” WSH Props., L.L.C., v. Daniels, 761 N.W.2d 45, 50 (Iowa
2008). Thus, “we will first consider whether the verdict is so excessive as to raise
a presumption that it was motivated by passion or prejudice on the part of the jury.”
Id. We focus on the evidentiary support for the verdict to determine whether it was
flagrantly excessive. See Pearson, 700 N.W.2d at 345. We take the evidence in
the light most favorable to Alcala. See WSH Properties, 761 N.W.2d at 50. We
accord weight to the view of the trial judge who heard and saw all the witnesses
and observed the jury. Pearson, 700 N.W.2d at 345.
In addressing Marriott’s motion for new trial, the district court found the
verdict was not flagrantly excessive. The court determined the jurors “had a
reasonable basis for their award of damages, and the amount awarded was not so
far outside the range of evidence as to suggest the jury was motivated by passion
or prejudice.” The court focused on the unrebutted testimony of Alcala’s doctors.
On appeal, Marriott challenges four categories of the damage award:
(1) past pain and suffering, (2) future pain and suffering, (3) past lost function of
the body, and (4) future lost function of the body. During trial, Alcala estimated
8
those damages at $3.5 million, and the jury awarded her the full amount. Because
the jurors gave Alcala what she asked for, according to Marriott, they showed an
“arbitrariness” that raised a presumption of passion or prejudice.
Alcala counters that the jury did not give her exactly what she suggested.
In closing argument, Alcala asked for $500,000 for past damages and $3 million
for future damages. The jury gave her more than she requested for past damages
and less for future damages. This independent exercise of judgment, according
to Alcala, shows the jury was not consumed by passion or prejudice.
With those arguments in mind, our job is to decide whether the district court
abused its discretion in rejecting Marriott’s passion-and-prejudice argument. We
start with the recognition that damages for pain and suffering cannot be measured
with mathematical precision. Pearson, 700 N.W.2d at 347. Courts properly leave
that calculation to the sound judgment of the jury. Id. Those damages encompass
both physical pain and mental anguish, anxiety, embarrassment, and loss of
enjoyment of life. Id. Pain-and-suffering damages are by their nature “highly
subjective.” Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 772 (Iowa 2009). Covering
different ground, damages for loss of function of the body are “broadly inclusive of
various physical injuries.” See Brant v. Bockholt, 532 N.W.2d 801, 804 (Iowa
1995).
We next consider whether the evidence supported the jury’s award for those
four damage categories. The jury heard Alcala was an active person before the
fall. She travelled extensively for work and found her work rewarding. She had a
healthy salary, earning $147,000 per year despite having only a high school
diploma. She planned to work to full retirement age to build up her savings. She
9
enjoyed gardening, walking, shopping, and attending her grandchildren’s activities.
Her husband’s poor health and early retirement left her as the sole breadwinner of
the family.
The jury also heard from Alcala’s two doctors, Charles Cassel and Michael
Tran. Dr. Cassel, who treated Alcala right after the fall, testified Alcala suffered a
trimalleolar dislocated ankle fracture. That injury caused bleeding, swelling, and
pain in the immediate aftermath. Alcala described her pain as “twenty out of ten.”
To that end, Alcala screamed when medical providers had to pull her bones back
into position. Alcala is allergic to morphine, and the drugs administered did little to
block the pain.
After that initial treatment, surgeons inserted a plate and screws into
Alcala’s ankle to hold her joint together. She has had several additional surgeries.
While she first needed a wheelchair to get around, she progressed to using a cane.
She has a permanent limp and has trouble navigating stairs. She also reports daily
pain and swelling. Her balance is off and her abnormal gait puts additional strain
on her knee and lower back, which also hurt more. In the future, she may need
additional surgeries.5
Alcala has taken a different job for the same company at lower pay because
it does not require as much travel. She believes she cannot keep working to full
5
Marriott counters that the testimony of Dr. Tran, Alcala’s doctor in her home state of
Texas, does not support the size of the verdict. Dr. Tran testified Dr. Cassel had done a
good job setting the bones in her ankle. The fall happened in January and, by April, Alcala
was back at work. She reported to Dr. Tran that her ongoing pain was mild to moderate.
He advised her to take anti-inflammatory medicines to reduce swelling and manage pain
but acknowledged the condition was deteriorating slowly and more surgeries were
possible.
10
retirement age as she originally planned because “[e]very day is just very difficult.”
She moves slower and cannot meet the physical demands of her job.
Alcala’s husband testified her personality has changed since the fall. She
has less energy and cannot do things she used to enjoy. And although her family
is close and supportive, Alcala worries about being unable to provide more for her
children and grandchildren. She also worries she cannot participate in or attend
her grandchildren’s activities because of her physical limitations.
Viewed in the light most favorable to Alcala, the record includes ample
evidentiary support for the verdicts. Alcala’s physical and mental pain and
suffering are essentially undisputed. She suffers daily pain. Her active lifestyle
has contracted. She does not have the same employment or financial prospects.
She worries for her future and her family’s future. She cannot enjoy the activities
she did before the fall. We find no abuse of discretion in the district court’s
conclusion the verdict was not flagrantly excessive.
That evidentiary basis for the damage awards “dispels any presumption”
that passion or prejudice motivated the jury. WSH Props., 761 N.W.2d at 51.
“Once the presumption of passion . . . is dispelled, we must look for some other
indication in the proceedings that would support a finding the jury was angry with
the defendants and motivated to punish them.” Id.
On cue, Marriott points to comments in Kendzior’s testimony that it believes
motivated the jury to punish the hotel chain. Marriott suggests the plaintiff’s expert
became an advocate for Alcala. As an example of his offending statements,
Marriott complains the district court allowed Kendzior to quote statistics about the
11
prevalence of accidental falls that result in emergency room visits.6 Marriott also
criticizes Kendzior’s inaccurate comments about Marriott’s policy statement about
snow and ice removal. Kendzior referenced a document outlining Marriott’s snow
removal policy and stressed “they underline the words ‘remove it at once’ to stress,
emphasize, how important it is.”7
In addition, on appeal Marriott bemoans Kendzior’s use of the word “gross”
in describing Marriott’s violation of its policies. Marriott also contests his response
to a hypothetical defendant asserting the plaintiff in a slip-and-fall action was
wearing inappropriate footwear and his response to a hypothetical defendant
asserting the remedial measures to avoid a slip-and-fall injury are too burdensome.
The district court made no findings about the inflammatory nature of these
statements, and Marriott did not seek amended or enlarged findings. So those
claims are not properly before us. See Meier, 641 N.W.2d at 537.
We have reviewed the expert’s testimony, Marriott’s motion for new trial,
and the court’s order. We do not find an abuse of discretion in the court’s refusal
to grant the motion for new trial based on an excessive verdict resulting from
passion or prejudice.
6
The district court found those statements relevant to the reasonableness of preventing a
known hazard. We find no abuse of discretion in that ruling.
7
As it turned out, Alcala’s counsel had underlined the passage that instructs employees
to “remove [snow and ice] at once.” In opening statements, Alcala’s counsel clarified,
“Now, I want to be clear that I’m the one who underlined that and I’m the one that is
emphasizing that.” At another point during trial, Alcala’s counsel objected to witnesses
being shown the exhibit because of their own underlining. The district court found those
clarifications on the record were enough to correct any inaccurate perception before jury
deliberations and dispelled any unfair prejudice. We find no abuse of discretion in the
court’s conclusion.
12
As a final push for its excessive verdict argument, Marriott points to
Goettelman v. Stoen, 182 N.W.2d 415, 421 (Iowa 1970). In that case, the
defendant’s negligence caused the deaths of a married couple in car accident.
Goettelman, 182 N.W.2d at 417. The estates brought two separate wrongful death
actions. Id. The parties tried the cases separately. In the case brought by the
wife’s estate, the jury awarded almost $6000 more in damages than the jury in the
case brought by the husband’s estate. Id. The more generous jury heard evidence
the defendant “was having domestic trouble over his drinking and staying
out . . . and his activities with a 19-year-old-girl.” Id. at 416. The supreme court
was left “with no doubt” that the difference in the verdicts “was the result of
inflammatory evidence which prejudiced the jury.” Id. at 421.
Marriott tries to draw a parallel to Goettelman by comparing the verdicts in
the first and second trials of Alcala’s lawsuit. In the first trial, the jury awarded
damages totaling $1.2 million. Alcala, 880 N.W.2d at 707. In the second trial, the
jury’s verdict reached nearly $5 million. Marriott insists the difference can be
traced to the inflammatory statements from Alcala’s expert witness allowed in the
second trial. So in its view, the second verdict is clearly excessive.
Countering Marriott’s position, Alcala attributes the higher verdict to several
factors. In the second trial, (1) Alcala impeached hotel employee DePaepe by
securing her concession the maintenance records were not in her handwriting;
(2) Marriott did not offer its own experts to counter the testimony of her doctors;
and (3) Alcala presented evidence her medical condition had worsened while
waiting for the prior appeals. We agree with Alcala. The disparate awards in her
two trials are not analogous to the verdicts discussed in Goettelman.
13
2. Iowa Rule of Civil Procedure 1.1004(6)
In passing, Marriott mentions the verdicts were “not based upon credible
evidence” and “lacked evidentiary support.” Alcala reads these as references to
the ground for new trial under Iowa Rule of Civil Procedure 1.1004(6). This rule
provides the court may grant a new trial if “the verdict . . . is not sustained by
sufficient evidence.” Alcala argues Marriott did not preserve error on such a claim
because it only cited rule 1.1004(4) as a ground for relief. Iowa R. Civ. P. 1.1004(4)
(the court may grant new trial if there are “[e]xcessive or inadequate damages
appearing to have been influenced by passion or prejudice”)
We do not read Marriott’s appellate brief as raising an issue under
rule 1.1004(6). Instead, we view Marriott’s argument as encouraging this court to
find a presumption of passion or prejudice arising from an excessive damage
award. We addressed that argument above.
B. Expert Testimony
Marriott next contends the trial court abused its discretion by overruling
defense objections to several questions Alcala’s counsel asked Kendzior in his
video deposition. According to Marriott, the questions strayed outside the
boundaries of permissible expert testimony and the district court abused its
discretion by admitting the exchanges into the record.
Iowa Rule of Evidence 5.702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if 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.
14
In its pretrial motion in limine, Marriott asserted Kendzior’s proffered
testimony would not satisfy that rule. Marriott also complained Kendzior’s
testimony would “present the Plaintiff’s case from the witness stand telling the jury
which witnesses are to be believed, why they are to be believed, what evidence is
persuasive, which opinions are important and what the community standards are
that should be applied by the jury to find the Defendant liable.”
On appeal, Marriott insists the district court erred in allowing Kendzior to
testify to questions not requiring expert knowledge and allowing Alcala to question
Kendzior on “questions of fact for the jury.” According to Marriott, “Kendzior
usurped the prerogative of the jury in expressing views about the credibility of
controverted evidence.”
Error preservation. As a starting point,8 Alcala emphasizes Marriott
successfully moved in limine to exclude any statements Kendzior made bolstering
the credibility of a witness. The court ordered Alcala to redact the video to exclude
Kendzior’s comments on the credibility of other witnesses. The court overruled
every other objection Marriott made to Kendozior’s testimony. At trial, the court
offered Marriott the opportunity to address any additional redactions. Marriott
made no objections relevant here. Alcala characterizes Marriott’s failure to ask for
further redactions as waiver of its claims that Kendzior offered improper opinions
on witness credibility. We agree and will not address those issues.
8
Alcala argues Marriott failed to provide citations to the record showing where it preserved
each objection for appellate review. Alcala says we should consider that omission as a
waiver and decline to review any of these issues. Again, we will address them, where we
can, based on the district court rulings.
15
Alcala also asserts Marriott failed to preserve error on two of the ten
questions because Marriott raises different grounds on appeal than it raised at
trial.9 We have scrutinized the record and conclude Marriott did not
contemporaneously raise the same objections advanced on appeal. So we will not
address Marriott’s challenges to those two questions. See Bratton v. Bond, 408
N.W.2d 39, 44 (Iowa 1987) (refusing to consider application of two hearsay
exceptions when two different exceptions were raised at trial).
Merits. The preserved objections to Kendzior’s testimony fall into three
categories. We will address each kind of objection in turn.
1. Questions not calling for scientific, technical, or specialized knowledge.
Marriott contends several questions posed to Kendzior were impermissible
because they did not call for the expert to share scientific, technical, or otherwise
specialized knowledge. “Iowa is generally ‘committed to a liberal view on the
admissibly of expert testimony.’” State v. Tyler, 867 N.W.2d 136, 153 (Iowa 2015)
(quoting Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010)). Rule
5.702 allows expert testimony if it will help the jury understand the evidence or to
determine a contested fact.
Rule 5.703 further provides:
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known
to the expert at or before the trial or hearing. If of a type reasonably
relied upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible
in evidence.
9
Those two questions involved the response by Marriott staff to the “mist that was present
in the early morning hours of January 21st 2010.”
16
The district court found Kendzior qualified as a walkway safety expert, and
Marriott does not challenge that finding here. The disputed questions go to the
reasonableness of Marriott’s actions, the weather and other conditions on the
morning of her fall, and how those conditions affected the hotel sidewalk. Those
facts are central to Alcala’s suit against Marriott. His testimony would help a jury
understand the circumstances leading to Alcala’s injury. The district court did not
abuse its discretion in overruling this objection to questions plaintiff’s counsel
posed to Kendzior.
2. Questions about controverted questions of fact for the jury
Marriott next contends several questions were impermissible because they
called for Kendzior to opine on controverted jury issues.10 It is true a witness
cannot opine on a legal conclusion or whether the facts of the case satisfy a certain
legal standard. In re Palmer, 691 N.W.2d 413, 419 (Iowa 2005), overruled on other
grounds by Alcala, 880 N.W.2d 699, 708 n.3. But “[a]n opinion is not objectionable
just because it embraces an ultimate issue.” Iowa R. Evid. 5.704. “[A] qualified
witness may opine on the ultimate question.” Schlichte v. Franklin Troy Truck, 265
N.W.2d 725, 730 (Iowa 1978). And expert witnesses may base their opinions on
facts or data gleaned before or at the trial. See Iowa R. Evid. 5.703.
After reviewing the questions at issue, we find no abuse of discretion in
allowing the expert to address facts that were in dispute at trial. “[S]uch a challenge
10
Marriott also complains Kendzior improperly expressed a legal conclusion by referring
to a “gross” violation. Kendzior testified, “[S]o . . . the two plus hour window whereby that
hazardous condition, the ice, was allowed to form . . . was a gross violation of Marriott’s
safety procedures and policies.” Marriott moved to strike, but the court overruled the
objection in its limine order. Whether Marriott was “grossly” negligent was not an issue in
the case. So the district court did not abuse its discretion.
17
goes to the credibility of the expert testimony, rather than its admissibility.” Acosta
v. Acosta, 725 F.3d 868, 874 (8th Cir. 2013). Marriott was free to examine the
factual basis for Kendzior’s opinion in cross-examination. See id.
3. Speculation and outside scope of expertise
Finally, Marriott contends two of the questions called for speculation or were
outside the scope of Kendzior’s expertise. “An expert may not express a mere
guess or conjecture, but [he] may testify to what might have been the cause of a
certain result.” Millis v. Hute, 587 N.W.2d 625, 629 (Iowa Ct. App. 1998). An
expert must have enough data to reach a competent opinion. City of Oelwein v.
Bd of Trs. of the Mun. Fire and Police Ret. Sy. of Iowa, 567 N.W.2d 237, 239 (Iowa
Ct. App. 1997).
Alcala asked Kendzior to give his opinion about the general behavior of
people walking in winter conditions and whether Alcala was reasonable in how she
walked, based on her description of the event. Kendzior had data to address those
questions. He reviewed witness depositions, Alcala’s own report of her actions,
and weather reports. He also relied on his own expertise in walkway safety and
pedestrian awareness of hazards. His opinion was sufficiently grounded in fact to
be more than conjecture.
But we do question whether the expert’s view on the care necessary for
walking in winter conditions truly helped this Iowa jury determine a fact in issue.
See Iowa R. Evid. 5.702 (hinging admissibility of expert testimony on its
helpfulness to the trier of fact). An expert’s testimony is not helpful unless “[t]he
body of knowledge which the expert brings” is “outside the realm of” the jurors’
own “common knowledge and experience.” State v. Hines, 223 N.W.2d 190, 192–
18
93 (Iowa 1974); see State v. Fox, 480 N.W.2d 897, 899 (Iowa Ct. App. 1991)
(noting expert testimony must “bear[] on matters outside the realm of common
knowledge and experience”). So opinions about matters “within the jury’s
knowledge or experience” are “subject to exclusion ‘because [they do] not then
meet the helpfulness criterion.’” Lee v. Andersen, 616 F.3d 803, 809 (8th Cir.
2010). Put another way, courts should not “permit ‘expert’ testimony on issues the
jury is equally as capable of resolving.” Hines, 223 N.W.2d at 192–93. Such
opinions do not assist the jury. Lee, 616 F.3d at 809. They just tell the jury “what
result to reach.” Id.
As noted above, the court permitted Kendzior to testify Alcala was
reasonable in the way she walked on the sidewalk. We doubt this topic would
escape the common knowledge and experience of an Iowa juror. We also doubt
that all of the expert’s testimony—such as his observations Alcala “wasn’t running,”
“wasn’t careless,” “was patient,” and “took her time”—came from specialized
knowledge “unavailable to the jury.” Id. at 808 (concluding district court correctly
excluded testimony where expert “did not employ any technique or utilize any
specialized skill that is unavailable to the jury” (citation omitted)). We thus find a
small portion of Kendzior’s testimony was improperly admitted. But viewing the
record as a whole, we do not find Marriott’s substantial rights were affected by
those limited admissions. See Iowa R. Evid. 5.103(a); Even v. Bohle, No. 01-0061,
2002 WL 31640613, at *6 (Iowa App. Nov. 25, 2002) (concluding record showed
lack of prejudice because disputed evidence appeared “relatively insignificant” in
the context of lengthy trial).
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For all the reasons above, we affirm the jury verdict.
AFFIRMED.