PATRICIA MINALDI, District Judge.
Before the court are a Motion for Summary Judgment (Rec. Doc. 6) and Motion to Strike Plaintiff's Summary Judgment Evidence (Rec. Doc. 10) filed by defendant Lowe's Home Centers, LLC ("Lowe's"), Oppositions (Rec. Docs. 8 & 15) filed by plaintiff Shirley Taylor ("Taylor"), and Replies (Rec. Docs. 9 & 16) filed by Lowe's. For the following reasons, the Motion to Strike will be
On March 7, 2014, Taylor was shopping at a Lowe's store in Leesville, Louisiana.
On October 1, 2015, Lowe's filed a Motion for Summary Judgment.
In support of a Motion for Summary Judgment, the non-moving party need not present evidence that would be admissible at trial, and may rely on any of the evidentiary materials described in FED.R.CIV.P. 56. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). However, the content of those materials are still subject to evidentiary requirements. See Goodwin v. Johnson, 132 F.3d 162, 186 (5th Cir. 1997). Therefore, inadmissible statements contained within acceptable forms of summary judgment evidence may not be considered by the court. Id.
Lowe's first challenges the affidavit of Rightor Cobb, who was retained by Taylor as a safety expert.
FED. R. CIV. P. 56(c) provides that affidavits may be used in support of motions for summary judgment. However, such affidavits "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." FED. R. CIV. P. 56(c)(4). Admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which states that a witness "who is qualified an expert by knowledge, skill, experience, training, or education" may only testify if:
FED. R. EVID. 702.
In his affidavit Cobb states that he is a self-employed safety consultant.
Cobb reviewed the petition for damages and Motion for Summary Judgment, eight pictures of the accident site, Taylor's deposition, and occupational safety publications.
Lowe's presents no direct challenges to Cobb's experience, other than his lack of prior qualification in state or federal court. Given Cobb's training and experience, we do not view this as a fatal flaw to his purported expertise. Lowe's also likens Cobb's affidavit to the one stricken in Stagliano v. Cincinnati Ins. Co., 633 F. App'x 217 (5th Cir. 2015) (unpublished). There the court heavily criticized the expert's failure to provide specific factual findings or to "delineate any principles or methodology" supporting his conclusions. Stagliano, 633 Fed. App'x at 221 (emphasis in original). Here, on the other hand, Cobb reviewed several photographs of the site. He offered literature identifying the site as a fall hazard. He also outlined numerous ways the site's safety could have been improved.
Lowe's also alleges that the expert opinion here is the "product of unreliable principles, in that [Cobb] relied upon an out of date OSHA booklet and an inadmissible internet study."
Finally, the challenges to the independent admissibility of these documents below have no bearing on whether they may be considered by an expert in forming his opinion. See FED.R.EVID. 703 ("If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.") Taylor has submitted a supplemental affidavit from Cobb, stating that these materials are reasonably relied upon in his field.
Lowe's next moves to strike the OSHA booklet, the Business Wire report of the Liberty Mutual study, and another Liberty Mutual study, as all were cited independently within Taylor's brief in opposition to the Motion for Summary Judgment. Lowe's objects to these documents on multiple grounds, including that they are unsworn and constitute inadmissible hearsay.
"In order for a document to be considered in support of or in opposition to a motion for summary judgment, it must be authenticated by and attached to an affidavit [and] the affiant must be a person through whom the exhibits could be admitted into evidence." Burnett v. Stagner Hotel Courts, Inc., 821 F.Supp. 678, 683 (N.D. Ga. 1993), aff'd, 42 F.3d 645 (11th Cir. 1994); see King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994); 10A CHARLES ALAN WRIGHT ET AL., FED. PRAC. & PROC. CIV. § 2722 (3d ed.). Publications are subject to this requirement. See Spears v. United States, No. 5:13-CV-47, 2014 WL 3513203, *3-4 (W.D. Tex. Jul. 14, 2014). Here, however, no authentication was provided for any of the above-described documents. Therefore the documents are incompetent as summary judgment evidence for lack of authentication.
In deciding whether to strike the affidavit of Rightor Cobb, the court found that the OSHA booklet, the Business Wire report of the Liberty Mutual study, and the other Liberty Mutual study may be used as a foundation by Plaintiff's expert. Although the court will not consider these documents as direct evidence for the purposes of the present motion for summary judgment, they may nonetheless be admissible during trial if a proper foundation is established. Thus, the motion to strike will be
A grant of summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). A dispute is said to be genuine only where "a reasonable jury could return a verdict for the non-moving party." Dizer v. Dolgencorp, Inc., No. 3:10-cv-699, 2012 U.S. Dist. LEXIS 24025, at *16 (W.D. La. Jan. 12, 2012) (citing Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006)). In ruling on a motion for summary judgment, the district court shall draw all inferences in a light most favorable to the non-moving party. Id. at *3 n. 1 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (additional citation omitted)). "Rule 56[(a)] mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Webber v. Christus Schumpert Health Sys., No. 10-cv-1177, 2011 U.S. Dist. LEXIS 99235, at *14 (W.D. La. Sep. 2, 2011) (citing Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004)). "The non-movant cannot preclude summary judgment by raising `some metaphysical doubt as to the material facts, conclusory allegations, unsubstantiated assertions, or by only a scintilla of the evidence.'" Cormier v. W&T Offshore, Inc., No. 10-cv-1089, 2013 U.S. Dist. LEXIS 53416, at *18-19 (W.D. La. Apr. 12, 2013) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
Merchants, such as Lowe's, have a duty to their patrons "to exercise reasonable care to keep . . . aisles, passageways, and floors in a reasonably safe condition." LA. REV. STAT. 9:2800.6. The same statute establishes the burden of proof in claims against merchants, stating that:
Id.
Here the contested issue is whether the kick plate constituted an unreasonable risk of harm that was reasonably foreseeable. Photographs of the scene show that the site of the accident, the carpet remnant bay, is an open stall on a concrete floor containing multiple rolls of carpet scraps.
Lowe's points to Taylor's deposition testimony, where she admits that she had been to the carpet remnant bay at that store before and that, prior to entering on this occasion, she waited about 10 minutes and observed other customers entering and exiting the bay.
Taylor's safety expert Cobb identified a change in elevation of greater than ½ inch as a tripping hazard and stated that these are "not . . . permitted to be in walking surfaces."