Padgett v. Kmart Corp.

TAMMY PADGETT, and JOEY PADGETT, Plaintiffs, v. KMART CORPORATION, and COLONY MILL ENTERPRISES, LLC, Defendants.

CV 315-048

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION

July 8, 2016

ORDER

Before the Court are Defendants' motions to exclude the testimony of Plaintiffs' expert witness Mr. Jeffrey Gross. (Doc. nos. 43, 45.) Because the Court finds all of Mr. Gross's opinions reliable except Opinions Seven, Nine, and Eleven, the Court GRANTS IN PART and DENIES IN PART Defendants' motions.

I. BACKGROUND

Plaintiffs filed this case in the Superior Court of Laurens County, in Dublin, Georgia, and on May 29, 2015, Defendants removed to this Court pursuant to 28 U.S.C. § 1441(a), § 1446(a) and (b), and § 1332(a). (Doc. no. 1, p. 3.) Plaintiffs allege that, on December 21, 2013, an unknown assailant assaulted and robbed Plaintiff in the parking lot of a Kmart store leased to Defendant Kmart Corporation ("Kmart") by Defendant Colony Mill Enterprises, LLC ("Colony Mill"). (Doc. no. 15, p. 2.) The complaint asserts Defendants had a duty to make the premises reasonably safe for customers, the incident was reasonably foreseeable, and the attack was a direct and proximate result of Defendants' failure to make the premises safe. Additionally, Plaintiff Joey Padgett asserts a claim for loss of consortium. (Id.)

Plaintiffs retained Mr. Jeffery Gross, a premises liability consultant, to provide expert testimony supporting their allegation that Defendants failed to make the premises reasonably safe for customers. (Id. at 3.) Mr. Gross has been a premises liability consultant for the past sixteen years, has an Associate of Arts in Industrial Safety and Security, and has more than thirty-six years of experience in commercial premises security, negligence, safety, and loss prevention. (Doc. no. 33-1, pp. 5-8.) Mr. Gross frequently attends industry related seminars, has a certificate in safety management, and worked for more than sixteen years in security for Marriott Hotels, including nine years as an Area Loss Prevention Manager. (Id. at 5-6.) Mr. Gross inspected the property on September 2, 2015, and his expert witness report offers the following eleven conclusions:

Opinion One: At the time of the attack on December 21, 2013, Defendant Colony Mill Enterprises had no security plan. The basis for this opinion is defendant's response to Interrogatory No. 8 seen on Page 5 of Defendant Colony Mill Enterprises' response to plaintiff Tammy Padgett's first interrogatories.

Opinion Two: At the time of the attack on December 21, 2013, Defendant Kmart had no security plan regarding the protection of its customers in their parking lot. The basis for this opinion is Defendants' supplemental response to plaintiff Tammy Padgett's request for production of documents.

Opinion Three: The use of private security or off duty police officers to patrol large areas of land or parking lots is a usual customary and accepted standard practice in industrial, commercial, retail and private property settings.

Opinion Four: The use of a patrol vehicle or golf cart would have allowed this property to be patrolled in between three to five minutesdepending on the speed of the patrol. A patrol on foot may take longer.

Opinion Five: The use of high visibility security patrols could have alerted a potential perpetrator of an increased chance of detection and apprehension while committing undesirable or illegal acts in the Kmart parking lot.

Opinion Six: At the time of the attack no method was being used to deter undesirable or criminal behavior on this property including the use of closed circuit television cameras.

Opinion Seven: There is no evidence to suggest the perpetrator of this crime had information that Ms. Padgett was leaving the store at a particular time and walking to her vehicle. As such it was more likely than not the perpetrator was observing the area for a victim and used his bicycle to ride up on Ms. Padgett. A properly trained security officer could have observed a person watching the parking lot or riding about it with no apparent legitimate purpose and taken action.

Opinion Eight: The absence of any security or loss prevention efforts at this property could have provided an expectation of privacy for the perpetrator.

Opinion Nine: Given the totality of the circumstances in this case it is more likely than not the perpetrator considered an expectation of privacy and rapid escape from the location of this attack approximately 157 feet from the front doors of Kmart.

Opinion Ten: More likely than not had Kmart or Colony provided a high visibility patrol of this parking lot, Ms. Padgett would have not been attacked owing to the ability of security to detect, deter, or intervene.

Opinion Eleven: Kmart or Colony made no attempt to determine the scope of crime taking place on their property in the ten years prior to the attack of Ms. Padgett which included, felony theft, suspicious persons, robbery, breaking and entering an auto, fighting, and other crimes.

(Doc. no. 33-1, pp. 3-4.)

II. DISCUSSION

A. Standard for Admissibility of Expert Testimony

Defendants move to exclude all of Mr. Gross's conclusions pursuant to Federal Rule of Evidence 702, which provides as follows:

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:

(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.

Fed. R. Evid. 702. The Eleventh Circuit has organized Rule 702 into three broad requirements known as the "qualifications," "reliability," and "helpfulness" prongs. See United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). The burden of establishing these three requirements rests on the proponent of the expert opinion. See id. "[E]xperts may be qualified in various ways. While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status." Id. at 1260-61.

When evaluating the reliability of scientific expert testimony, the trial court must assess "whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93. In assessing reliability, a trial court has "considerable leeway"in deciding which tests or factors to use. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). In Daubert, the Supreme Court suggested that a trial court consider: "(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community." Daubert, 509 U.S. at 593-95.

These factors, however, are generally inapplicable in the context of non-scientific testimony. See Kumho, 526 U.S. at 152 (holding that expert's personal knowledge and expertise are relevant in non-scientific expert testimony). In such cases, the Advisory Committee Notes for Rule 702 suggest that courts consider factors such as:

(1) Whether [the expert] is proposing to testify about matters growing naturally and directly out of research he has conducted independent of the litigation, or whether [he has] developed [his] opinion expressly for purposes of testifying;

(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;

(3) Whether the expert has adequately accounted for obvious alternative explanations;

(4) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting; and

(5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Fed. R. Evid. 702 advisory committee's note (citations and internal quotations omitted); see also 325 Goodrich Ave., LLC v. SW Water Co., 891 F. Supp. 2d 1364, 1379 (M.D. Ga. Sept. 4, 2012).

However, the notes also indicate "other factors may also be relevant" and "no single factor is necessarily dispositive of the reliability of a particular expert's testimony." Fed. R. Evid. 702 advisory committee's notes (citations omitted). "When a witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusions reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Id. A trial judge is given considerable leeway in determining whether particular testimony is reliable. Kumho Tire, 526 U.S. at 152.

In evaluating the expert's testimony in light of these factors, the trial court must remain mindful that "Daubert does not require certainty; it requires only reliability." Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1198 n.10 (11th Cir. 2010). The focus of reliability "must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 595.

Expert testimony must also help the trier of fact to understand the facts in evidence or to determine a fact in issue. This consideration "goes primarily to relevance." Daubert, 509 U.S. at 591. "Expert testimony which does not relate to any issue in the case is not relevant, and, ergo, non-helpful." Frazier, 387 F.3d at 1262. Expert testimony is additionally helpful "if it concerns matters that are beyond the understanding of the average lay person." Id. In other words, "expert testimony generally will not help the trier of fact when it offers...