United States District Court, E.D. Tennessee
PHYLLIS G. BARNES, and WALTER R. BARNES, Plaintiffs,
GREG MALINAK, et al., Defendants.
MEMORANDUM AND ORDER
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and Standing Order 13-02.
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].
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
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].
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].
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.].
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].
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].
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.
POSITIONS OF THE PARTIES
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
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.
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.
Sidney filed a Reply [Doc. 80], asserting that the cited
cases in the Plaintiffs' responses are different than the
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.
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.
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).
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, ...