Bennett v. Target Corp.

SHARON BENNETT, Plaintiff, v. TARGET CORPORATION a/k/a TARGET, Defendant.

16-CV-5816 (ADS)(SIL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 5, 2018

ORDER, REPORT AND RECOMMENDATION

STEVEN I. LOCKE, United States Magistrate Judge:

By way of Verified Complaint filed on August 31, 2016 in the Supreme Court of the State of New York, County of Nassau, Plaintiff Sharon Bennett ("Plaintiff" or "Bennett") commenced this action, seeking damages for personal injuries that she allegedly sustained when she tripped and fell on a display platform known as a "base deck" while shopping at a retail store owned and operated by Defendant Target Corporation a/k/a Target ("Defendant" or "Target") located at Green Acres Mall, 500 Sunrise Highway in Valley Stream, New York. See Verified Complaint (the "Complaint" or "Compl."), Docket Entry ("DE") [1-2], ¶¶ 5, 25. The case was subsequently removed to the United States District Court for the Eastern District of New York on the basis of the Court's diversity jurisdiction. See DE [1]. Plaintiff alleges that Defendant's negligence—namely, its failure to warn, its creation of a defective design and/or layout, and its failure to properly inspect the area in question—caused the incident, and that she sustained serious personal injuries as a result. See Compl. ¶¶ 29, 76.

Presently before the Court are: (i) Defendant's motion for an Order precluding the report and testimony of Plaintiff's architectural expert, Jerry Birnbach ("Birnbach"), and striking Bennett's Local Rule 56.1 statement, DE [41]; (ii) Target's letter motion to stay Birnbach's deposition and the deadline to disclose rebuttal experts, DE [43]; and (iii) Plaintiff's motion precluding the report and testimony of Defendant's industrial engineering expert, Howard Ehrlich ("Ehrlich"), DE [56]. For the reasons set forth herein, the Court respectfully recommends to the Honorable Arthur D. Spatt that Target's motion to preclude and to strike be granted in part and denied in part, and that Plaintiff's motion to preclude be denied in its entirety. Further, given that Birnbach's deposition has apparently proceeded, see Affidavit in Opposition to Plaintiff's Motion to Preclude Expert Testimony ("Collins Aff."), DE [58], Ex. D at 5, and Target has disclosed its rebuttal expert, the motion to stay is denied as moot.¹

I. BACKGROUND

As noted above, Plaintiff initially filed suit against Target in the New York Supreme Court on August 31, 2016. See Compl. According to the Complaint, on April 29, 2016, while Bennett was shopping at Defendant's retail store located at Green Acres Mall in Valley Stream, she tripped and fell upon an approximately six- to twelve-inch elevated display platform in the store's Baby Department. See id. ¶ 25. The Complaint further alleges that: (i) the display was defective and negligently placed; (ii) Target failed to conduct reasonable inspections of the subject premises; and (iii) Defendant failed to warn Plaintiff of the defective and dangerous condition. See id. ¶¶ 26, 29, 30.

Defendant removed the matter to this Court on October 18, 2016 and interposed an Answer to the Complaint on October 26, 2016. See DEs [1], [4]. This Court entered a Scheduling Order on December 6, 2016, and the parties thereafter proceeded with discovery. See DE [13]. Bennett was deposed on September 12, 2017. See Affidavit of Daniel R. Strecker in Support ("Strecker Aff."), DE [41-1], ¶ 9. On September 21, 2017, Target employees Mariana Puglia ("Puglia") and Deborah Joseph testified at depositions on the company's behalf. See id. ¶¶ 10, 11.

By letter dated September 28, 2017, Plaintiff moved for an extension of the September 29, 2017 deadline to serve her expert witness disclosure on the basis that Defendant failed to identify documents called "Plan-o-grams," "visual agencies [sic]," and "POGS" (collectively, "Plan-O-Grams")—materials that explicitly direct individual stores how to design and lay out their merchandise—until Puglia'sdeposition on September 21, 2017, and that Bennett's expert would need to review and evaluate these documents to render an opinion. See DE [27]. Notwithstanding Target's opposition to Plaintiff''s request, see DE [28], on October 30, 2017, this Court, inter alia, extended Bennett's expert disclosure deadline to January 15, 2018 and ordered Defendant to produce the materials sought. See DE [32].²

A. Birnbach and His Report

On January 5, 2018, Bennett timely served her expert disclosure identifying Birnbach, an architectural and design expert, as her intended expert witness together with Birnbach's resume and report dated January 2, 2018. See Strecker Aff. ¶ 13; id., Exhibits ("Exs.") G, H; Opposition to Defendant's Motion to Preclude Expert Testimony and to Strike Plaintiff's Rule 56.1 Statement ("Pl.'s Opp."), ¶ 12. According to Birnbach's resume, he received a Bachelor of Science degree in Architectural Technology from New York Institute of Technology in 1970. See Strecker Aff., Ex. G. Since that time, Birnbach has consistently been employed in the store design and display industry. See id.; Pl.'s Opp. ¶ 15. Birnbach currently serves as the Chief Executive Officer of the retail design firm RDD Associates Inc., in which capacity he is responsible for all store and display design, detailing, manufacturing coordination, client relations, and new business. See Strecker Aff., Ex. G; Pl.'s Opp. ¶ 16. Birnbach has received various awards for his work in retail design, spoken at numerousindustry events, and served as an expert witness in approximately 150 cases involving store/retail design and layout. See Pl.'s Opp. ¶¶ 13, 14, 18.

Prior to preparing his report, Birnbach reviewed and relied upon, among other materials, the Plan-O-Grams provided by Target in response to this Court's October 30, 2017 Order. See Strecker Aff., Ex. H at 1; Pl.'s Opp. ¶ 20. Birnbach opines in his report that Plaintiff's actions on the date in question were reasonable and foreseeable and that Defendant's layout with respect to the base deck constituted a defective design. See Strecker Aff., Ex. H at 2; Pl.'s Opp. ¶ 22. Birnbach also concludes that Target was negligent in creating this condition, failing to conform to the Plan-O-Grams, and failing to warn customers of a defective/hazardous/dangerous condition that foreseeably would lead to a customer sustaining injury. See Strecker Aff., Ex. H at 2. Birnbach further opines that, in the absence of empty space on the base deck, Plaintiff's fall would have been broken, which, in turn, would have prevented or minimized her injuries. See id. at 4-5. In addition, Birnbach concludes that the fall caused Bennett to break her metatarsal. See id. at 3.

B. Plaintiff's Local Rule 56.1 Statement

On February 13, 2018, Plaintiff served her Local Rule 56.1 statement, see Strecker Aff. ¶ 16; id., Ex. I, which sets forth the following facts, among others: (i) Plaintiff was shopping in an aisle with infant/toddler items located on shelves to her left and a raised platform, known as a base deck, displaying furniture to her right, id. ¶ 2; (ii) the base deck was characterized by a large, open void/space between a dresser and crib that were displayed on the base deck, id. ¶ 6; (iii) Target's corporateoffice provides each store with Plan-O-Grams that dictate how each aisle shall be configured and how the items in each aisle are to be displayed, id. ¶ 8; (iv) the open space between the dresser and crib on the base deck did not comply with Defendant's Plan-O-Gram, industry standards, or Occupational Safety and Health Administration's ("OSHA") standards for safety and compliance, id. ¶¶ 9, 10; (v) Target knew that shoppers would be likely to step upon the base deck but did not utilize signage warning them to refrain from doing so, id. ¶¶ 15, 16; (vi) it was foreseeable that a shopper would, as Plaintiff did, take one step back to expand her sightline to fully view the items on display and hit her foot on the base deck in the same aisle, id. ¶ 18; and (vii) Bennett's injuries were the direct result of the accident, which was caused by Defendant's failure to comply with OSHA regulations, industry standards, and its Plan-O-Grams, id. ¶ 21. Plaintiff's Local Rule 56.1 statement cites and relies upon Birnbach's report in 13 of its 21 paragraphs. See generally id.

C. Defendant's Motions

1. Motion to Preclude and to Strike

On March 1, 2018, Target filed its motion to preclude Birnbach's report and testimony and to strike Plaintiff's Local Rule 56.1 statement. See DE [41]. In support of that motion, Defendant argues that Birnbach is not qualified to render the opinions set forth in his report. See Memorandum of Law in Support of Motion to Preclude Expert and Strike 56.1 Statement ("Def.'s Mem."), DE [41-12], at 1. Further, Target contends, for a variety of reasons, that such opinions are unreliable and will not assist the trier of fact. Defendant also asserts that Bennett's Local Rule 56.1 statementshould be stricken because it relies heavily on Birnbach's inadmissible report, contains improper argument and conclusions, and makes assertions unsupported or contradicted by the cited evidence. See id. at 1-2. Bennett argues in opposition that Birnbach's testimony and report should not be precluded because Birnbach is a qualified expert with reliable opinions based upon over four decades of experience in the retail design and safety field and a thorough review of all relevant materials. See Plaintiff Sharon Bennett's Memorandum of Law in Opposition, DE [44-12], at 2. Moreover, Plaintiff contends that her Local Rule 56.1 statement should not be stricken because it accurately reflects the testimony of all witnesses and documentary evidence in this matter. See id. at 3.

2. Motion to Stay

On March 2, 2018, Target moved by letter for a stay of both Birnbach's deposition and the deadline to disclose its rebuttal experts, pending the outcome of its motion to preclude and to strike. See DE [43]. Plaintiff opposed...