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Barnes v. Malinak

United States District Court, E.D. Tennessee

August 11, 2017

GREG MALINAK, et al., Defendants.


         This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

         Now before the Court is Defendants Greg Malinak and Debbie Malinak's Motion to Exclude the Testimony of Russell Kendzior as an Expert at Trial [Doc. 62] and Defendant Sidney James Motor Lodge, Inc., d/b/a/ Olde Gatlinburg Rentals's Motion to Exclude Testimony of Russell J. Kendzior [Doc. 63]. The Plaintiffs have responded [Docs. 71 and 72] in opposition to the Motions, and Defendant Sidney James Motor Lodge, Inc., d/b/a/ Olde Gatlinburg Rentals, filed a Reply. [Doc. 80].

         The parties appeared before the Court on July 12, 2017, for a motion hearing. Attorney Darren Berg appeared on behalf of the Plaintiffs. Attorney Mabern Wall appeared on behalf of Defendants Greg Malinak and Debbie Malinak (collectively, the “Malinaks”). Attorney Greg Brown appeared on behalf of Defendant Sidney James Motor Lodge, Inc., d/b/a/ Olde Gatlinburg Rentals (“Sidney”). During the hearing, the Defendants submitted the video deposition testimony of Russell Kendzior as an exhibit. The Defendants' expert, John Lefler, testified at the hearing.

         Following the hearing, the Defendants filed Supplements [Docs. 90 and 92] to their Motions. The Court has considered all of the above filings and the experts' testimonies presented at the hearing. Accordingly, for the reasons more fully explained below, the Court DENIES the Defendants' Motions [Docs. 62 and 63].

         I. BACKGROUND

         The Plaintiffs filed their Complaint on December 16, 2015, [Doc. 1], and later amended the Complaint on May 19, 2016. [Doc. 17]. The Amended Complaint states that on April 9, 2015, the Plaintiffs rented a condominium at Olde Gatlinburg Place for a weekend vacation. [Id. at ¶ 7]. The Amended Complaint alleges that the Malinaks own the condominium and that Defendant Sidney cleans, manages, or otherwise maintains the units. [Id. at ¶¶ 9-10]. In addition, the Amended Complaint states that Defendant Sidney is the exclusive agent for renting and managing the unit in question. [Id. at ¶ 12].

         The Amended Complaint alleges that on April 10, 2015, Plaintiff Phyllis Barnes entered the bathroom for the purpose of using the bath/shower. [Id. at ¶ 14]. She laid a cloth bath mat, which upon information and belief, was provided by the Defendants for use as a bath mat, on the tile floor in front of the bathtub. [Id. at ¶ 15]. The Amended Complaint continues that the bath mat provided by the Defendants was made entirely of cloth, with no rubber backing or similar material that would prevent the bath mat from slipping on a tile floor. [Id. at ¶ 16]. In addition, the Amended Complaint states that upon information and belief, the Defendants cleaned/polished the floor of the bathroom using a substance that increased the slipperiness of the floor, thereby making the floor a latent danger when the cloth bath mat provided by the Defendants is placed on the floor and thereafter stepped on by someone exiting the shower. [Id. at ¶ 17]. The Amended Complaint states that Plaintiff Phyllis Barnes stepped out of the bath/shower, and she placed her left foot on the cloth bath mat. [Id. at ¶ 18]. The bath mat suddenly, and without warning, slid across the bathroom floor, causing Plaintiff Phyllis Barnes to fall and suffer severe injuries. [Id. at ¶ 19]. The Amended Complaint continues that the responding officer commented that the bathroom floor was very slippery. [Id.].

         The Amended Complaint alleges that the Defendants owed the Plaintiffs, as guests, a duty to provide a bath mat with backing material that would prevent slipping on the bathroom floor. [Id. at ¶ 20]. In addition, the Amended Complaint avers that the Defendants owed Plaintiffs a duty to clean and/or polish the bathroom floor utilizing substances that do not increase or otherwise contribute to the slipperiness of the floor. [Id. at ¶ 21]. The Amended Complaint alleges negligence, loss of consortium and loss of society. [Id. at ¶ 29].

         The Plaintiffs obtained Russell Kendzior, with Traction Experts, Inc., [Doc. 62-1] to testify in this case. Kendzior opines that the Defendants breached the standard of care to provide the Plaintiffs with a bath mat that would not slip when used for exiting the bathtub. [Id. at 2]. Kendzior states that the Defendants failed to provide a suitable bath mat for the type of flooring that was in the condominium rented by the Plaintiffs. [Id.]. He further opines that bath towels are not bath mats and should not be used as such. [Id.]. He continues that bath towels do not have a slip resistant backing, and therefore, do not provide sufficient traction when placed on a smooth surfaced floor. [Id.]. Further, he states that the bath towel's design, construction, and lack of a slip resistant backing were insufficient to prevent the towel from slipping on the smooth surfaced floor as testified by the Plaintiffs. [Id.]. He concludes that Defendant Sidney breached the standard of care it owed to the Plaintiffs by not warning them of the risk of falling due to the slipperiness of the floor when combined with the use of the towel. [Id.]. Finally, he states that had a proper bath mat been placed in the condominium for the Plaintiffs' use, the bath mat would not have slipped when Plaintiff Phyllis Barnes stepped on it while getting out of the tub. [Id. at 3].

         On May 15, 2017, Kendzior provided a supplemental report. [Doc. 71-2]. In his supplemental report, he stated that the test method that is used to determine the slip resistance of the floor matting is published by the National Floor Safety Institute (“NFSI”) 101-C “Test Method for Measuring Dry TCOF of Floor Mat Backing Materials.” [Doc. 71-2 at 3]. Kendzior stated that he tested the Transitional Coefficient of Friction (“TCOF”) on the exemplar bath mat per the NFSI 101-C test method and the test results revealed a dry TCOF value of .14, which is below the required minimum value of .5 to be considered a high-traction mat. [Id.]. Kendzior states that given the low level of slip resistance or traction, the bath towel in question would increase the likelihood of sliding on a smooth surfaced floor. [Id.] Kendzior also opines that the Defendants should have provided at least one vertically mounted grab bar near the front critical support service wall for the bathtub/shower enclosure. [Id. at 1].


         The Malinaks assert that Kendizor is not qualified to issue the opinions contained in his report or to testify regarding the conclusions he purports to have reached in this case. The Malinaks argue that Kendzior is a mathematician and not an engineer or architect. In addition, the Malinaks argue that he does not have any training in terry cloth towels or their use as bath mats. Further, they contend that Kendzior's opinions and conclusions lack sufficient factual basis or scientific reliability to be admissible under the Federal Rules or Daubert. The Malinaks submit that his opinions regarding the floor (i.e., the floor is slippery, the bath mat was inappropriate for the type of flooring, or that the mat slipped because of the type of flooring) are unreliable and irrelevant because he has not seen, examined, or inspected, or tested the flooring. The Malinaks state that Kendzior had insufficient facts to reach the conclusion he asserts and that he relied on photographs and Plaintiff Phyllis Barnes's testimony in providing his opinions. The Malinaks aver that Kendzior states broad conclusions about the Defendants breaching the standard of care, citing to different standards, but he acknowledged the standards and codes he cited were all voluntary and not mandated by any law. Further, the Malinaks assert that the standard cited is not applicable to the present matter. The Malinaks state that Kendzior also issued certain opinions about the lack of a grab bar in the bathtub, but the lack of a grab bar is not an issue in this case and it is not addressed in the Amended Complaint. The Malinaks explain that the Plaintiffs have not alleged that the fall was due to the lack of a grab bar. Furthermore, the Malinaks argue that Kendzior's reasoning and methodology underlying his conclusions are not scientifically valid and not based in science. The Malinaks continue that Kendzior's techniques or theories have not been tested and have not been objectively challenged. They assert that Kendzior's rate of error and the standard of testing do not indicate reliability.

         Defendant Sidney argues that Kendzior's opinions are based on insufficient data-that is, the subject floor surface's slip-resistance is unknown. Defendant Sidney continues that the principals and methods upon which Kendzior's testimony is based are not relevant or reliable. Defendant Sidney argues that bath mats are outside the scope of the standards that Kendzior relies on, and therefore, are not relevant. In addition, Defendant Sidney asserts that Kendzior did not reliably apply the methods to the facts of the case.

         The Plaintiffs filed responses [Docs. 71 and 72] to both Motions. The Plaintiffs assert that the issues raised by the Defendants go to the weight of the evidence and not to admissibility. The Plaintiffs assert that Kendzior performed tests on a test tile representative of average floor material, rather than the tile from the condominium. The Plaintiffs continue, however, that they do not contend that Plaintiff Phyllis Barnes slipped on the floor at issue but rather the bath towel. Further, the Plaintiffs provide that Kendzior relied on other statements in this case, stating that the floor was slippery. The Plaintiffs further state that Kendzior's experience and knowledge of slip-and-fall accident prevention qualify him as an expert as contemplated by Rule 702. The Plaintiffs assert that Kendzior's expert opinion will aid the trier of fact by providing context to the available evidence and testimony and that a narrow focus on select Daubert factors is an improper Rule 702 inquiry. Finally, the Plaintiffs distinguish the court decisions that have excluded Kendzior as an expert.

         Defendant Sidney filed a Reply [Doc. 80], asserting that the cited cases in the Plaintiffs' responses are different than the present matter.

         After the hearing in this matter, the Defendants both filed Supplements [Docs. 90 and 92] to their Motions. The Malinaks state [Doc. 90] that Kendzior has only testified at trial thirty times. The Malinaks argue that he has not been scrutinized by a court under Daubert or the applicable rules of evidence in over 90% of the supposed 700-750 times he has been retained as an expert. The Malinaks state that Kendzior has been admitted to testify over parties' objections in only three cases and that he has been excluded from testifying in six cases. In Defendant Sidney's Supplement [Doc. 92], it also provides several court decisions that have excluded Kendzior's testimony.

         III. ANALYSIS

         Federal Rule of Evidence 702 governs the admission of expert testimony. It provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702.

         In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court of the United States stated that a district court, when evaluating evidence proffered under Rule 702, must act as a gatekeeper, ensuring “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 589. The Daubert standard “attempts to strike a balance between a liberal admissibility standard for relevant evidence on the one hand and the need to exclude misleading ‘junk science' on the other.” Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 176-77 (6th Cir. 2009).

         The factors relevant in evaluating the reliability of the testimony, include: “whether a method is testable, whether it has been subjected to peer review, the rate of error associated with the methodology, and whether the method is generally accepted within the scientific community.” Coffey v. Dowley Mfg., Inc., 187 F.Supp.2d 958, 970-71 (M.D. Tenn. 2002) (citing Daubert, 509 U.S. at 593-94). “Although Daubert centered around the admissibility of scientific expert opinions, the trial court's gatekeeping function applies to all expert testimony, including that based upon specialized or technical, as opposed to scientific, knowledge.” Rose v. Sevier Cnty., Tenn., No. 3:08-CV-25, 2012 WL 6140991, at *4 (E.D. Tenn. Dec. 11, 2012) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 138-39 (1999)). “[A] party must show, by a ‘preponderance of proof, ...

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