Opinion
Case No. 8:01CV365
July 18, 2002
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY
This matter is before the Court on the Motion in Limine to Exclude the Expert Testimony of Plaintiff's expert witness, Donald Prochaska, A.I.A. (Filing No. 53) filed by Defendant J.C. Penney Company, Inc. The parties have briefed the issues presented, and Defendant has submitted evidence in support of its motion (Filing No. 54A). The Court granted Defendant's request for hearing on the motion, which was made orally during the pretrial conference, and that hearing was conducted on July 3, 2002. During the hearing, the Court received additional evidence for the purposes of the motion in limine only, including a video tape that was viewed during the hearing (Exhibits 25 and 118).
Defendant seeks to exclude any reference at trial, in both argument and as evidence, to the opinions of the Plaintiff's retained expert witness, Donald Prochaska A.I.A. Prochaska is a registered architect who was retained by Plaintiff to provide expert opinions relating to the allegedly defective design of a vestibule area in the Defendant's Lincoln store.
Daubert Standard
In light of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), this Court must screen proffered expert testimony for relevance and reliability. Blue Dane Simmental Corp. v. American Simmental Ass'n, 178 F.3d 1035, 1040 (8th Cir. 1999). A reliable opinion must be based on scientific methodology rather than on subjective belief or unsupported speculation. See Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir. 2000). Furthermore, the expert's information or opinion must "assist" the trier of fact to understand or determine a fact in issue. Fed.R.Civ.P. 702.
In assessing reliability, the Court should consider factors including whether the proposed expert's theory, methodology or technique: 1) can be and has been tested; 2) has been subjected to peer review; 3) has a known or potential rate of error; 4) is generally accepted by the relevant community; 5) ruled out alternative explanations; and 6) sufficiently connected the proposed testimony with the facts of the case. Lauzon v. Senco Prod., Inc., 270 F.3d 681, 687 (8th Cir. 2001); Jaurequi v. Carter Mfg. Co., Inc., 173 F.3d 1076, 1082 (8th Cir. 1999). This list of factors is not exclusive, and this Court is allowed "great flexibility" in its analysis. Id. The Supreme Court has held that Daubert applies to all expert testimony, not only scientific expert testimony. Kumho Tire Co., Ltd., 526 U.S. at 141.
Opinions of Mr. Prochaska
Mr. Prochaska is a principal officer in his architectural firm, Prochaska Associates, located in Omaha, Nebraska. Mr. Prochaska has a Bachelor of Architecture degree from the University of Nebraska-Lincoln, and he also attended an Honors Program in Architecture in London, England. According to his curriculum vitae, Mr. Prochaska is a member of the American Institute of Architects, and he is certified by the National Council of Architectural Registration Boards. He has been involved in the design of hundreds of structures, including approximately 50 retail commercial properties. He is a principal officer of his own architectural firm. Given this educational background, professional affiliations, and extensive design experience as a professional architect on a multitude of commercial projects, the Court concludes that Mr. Prochaska is qualified to provide expert opinions based on a reasonable degree of architectural certainty relating to the design of the vestibule at issue in this case.
A finding that Mr. Prochaska is qualified to testify as an expert does not end the inquiry. The Court must also consider whether he has engaged a methodology sufficient to support his opinions. The Court has evaluated Mr. Prochaska's proposed testimony as it is reflected in his report to Mr. Cann and in his deposition, in light of factors including those set out in Lauzon, 270 F.3d at 687, and Jaurequi, 173 F.3d at 1082. (The report is Exhibit 132, duplicated at Exhibit 177; and the deposition is Exhibit 178.)
In connection with the preparation of his report, Mr. Prochaska reviewed the following: the Petition and Answer; 11 photographs of the vestibule area and of Plaintiff's injuries; certain medical records and EMS reports; correspondence from the Plaintiff's husband relative to Plaintiff's injuries; and a summary of medical bills. He also reviewed ANSI standards A156.10-1991 to A156.19-1990; product literature including the installation manual for the Series 7000 doors; the Defendant's Answers to Interrogatories and Responses to the Request for Production of Documents; and the deposition transcripts of the Plaintiff and her husband. In addition, Mr. Prochaska conducted a general survey of the site and reviewed the literature associated with automatic doors and power-assisted doors used in commercial and other buildings.
In his report, Mr. Prochaska outlined the facts that he relied upon as the bases for his opinions (Exhibit 132 at 3-5, ¶¶ 1-14), and he provided seven opinions to a reasonable degree of architectural certainty. (Exhibit 132 at 5-6, ¶ 1-7). He provides opinions relative to
the cause of Plaintiff's injury (¶ 1)
the safety of entrances and exits in commercial retail establishments (¶ 2)
the location of the interior remote switch on the power-assisted doors and whether it creates a hazardous condition (¶ 3)
the rate of speed of the door operation and its creation of a hazardous condition (¶ 4)
the sufficiency of warnings and signage(¶ 5)
the proximity of the power-assisted doors to a retail display case and whether it creates a hazardous condition (¶ 6)
safety measures and design alterations that could have prevented the Plaintiff's injuries (¶ 7).
Having reviewed the report, Mr. Prohaska's deposition, and having listened to the arguments of counsel, the Court finds that Mr. Prohaska is qualified, based on his educational background and professional experience, to offer expert opinions regarding the need for safety in designing entrances and exits in commercial retail establishments (¶ 2); the location of the interior remote switch on the power-assisted doors and the proximity of the power-assisted door relative to the display case, and whether that design creates a hazardous condition (¶¶ 3 and 6); the sufficiency of warnings and signage on the doors as elements of the design (¶ 5); and alternate and more safe designs that were available at the time of the original design that could have prevented the Plaintiff's injuries (¶ 7).
Plaintiff's counsel argues that because Mr. Prochaska cannot point to a building code or ANSI standard that has been violated, there is no basis for Mr. Prochaska's expert opinions. The Court is not persuaded by this argument. Mr. Prochaska testified that he is not criticizing the vestibule area based on noncompliance with code, but rather on the basis of good and safe design (Prochaska Dep. at 70). Good and safe design is within the province of registered architects, and the Court shall allow Mr. Prochaska to provide expert testimony relative to the matters identified in the preceding paragraph.
The Court concludes, however, that Mr. Prochaska is attempting to provide opinions outside his area of expertise as to two other matters. The Court finds that Mr. Prochaska's opinion relating to the cause of the Plaintiff's injury is based on 1) the statements of fact or opinion made by the Plaintiff and her spouse that Prochaska has reviewed, and 2) his own every-day experiences (Prochaska dep. at 23-26). Mr. Prochaska's opinion that the power-assisted door caused Plaintiff's injury was not developed using his education and experience as an architect, and therefore, he will not be allowed to testify as an expert as to the cause of Plaintiff's injuries.
The Court also concludes that Mr. Prochaska's observations and opinions relative to the speed with which the power-assisted door opened and closed shall be excluded from evidence at trial. The Court finds that Mr. Prochaska did not engage in anything that resembles scientific or technical testing to determine the speed with which the power-assisted door opened. Mr. Prochaska states in his deposition that he visually observed the speed of the door opening to approximately 80 degrees, and that he timed the door's movement with a stopwatch. He used the 80 degree mark based on his assumption that the door had been installed in compliance with the installation manual — and that the door perceptibly slowed when the door opened to 80 degrees. Mr. Prochaska estimated the location of the 80 degree mark, and he used no tools, such as a template or protractor, to determine the 80 degree mark with precision. He also estimated that his opinion as to the door speed had a 10 percent margin of error, which Plaintiff's counsel contends would cover the difference between being in compliance with the applicable code and not being in compliance. (Prochaska Dep. at 26-31).
The Court concludes that Mr. Prochaska's findings and opinions relative to the rate of speed at which the door operated are too speculative, conclusory, and unreliable for admission as expert testimony under the standards of Daubert and Kumho. Pursuant to the Plaintiff's motion in limine, the Court shall exclude from evidence Mr. Prochaska's finding contained in his report at page 4, ¶ 9, and his opinion contained in the report at page 5, ¶ 4 (Exhibit 132), and any testimony by him relating to the testing he performed more than a year after the accident as to the speed of the door operation.
For all the reasons provided in this memorandum,
IT IS ORDERED:
Defendant's Motion in Limine (Filing No. 53) is granted in part and denied in part consistent with this Memorandum. The motion is granted as to Mr. Prochaska's findings, opinions, and testimony relative to a) the cause of the Plaintiff's injury; and b) the testing of and actual speed of the door's operation; and the motion is denied in all other respects.