Opinion
CASE NO. 20-cv-61693-WPD
2021-10-05
Frank DEMARZO, Plaintiff, v. HEALTHCARE TRUST OF AMERICA, INC., a Foreign Profit Corporation, and Cushman & Wakefield, U.S., Inc., Defendant.
Marc Philip Lyons, Lyons, Snyder & Collin, Plantation, FL, Philip M. Snyder, Lyons, Snyder & Collin, Ft. Lauderdale, FL, Brandon L. Chase, Law Offices of Brandon L. Chase, P.A., Coral Gables, FL, for Plaintiff. Thomas Walter Paradise, Megan Ann Pariti, Vernis & Bowling of Broward, Hollywood, FL, for Defendant Healthcare Trust of America, Inc. Gregory Scott Glasser, Klein Glasser Park Lowe & Pelstring, P.L., Miami, FL, Megan Ann Pariti, Thomas Walter Paradise, Vernis and Bowling of Broward, Hollywood, FL, for Defendant Cushman & Wakefield, U.S., Inc.
Marc Philip Lyons, Lyons, Snyder & Collin, Plantation, FL, Philip M. Snyder, Lyons, Snyder & Collin, Ft. Lauderdale, FL, Brandon L. Chase, Law Offices of Brandon L. Chase, P.A., Coral Gables, FL, for Plaintiff.
Thomas Walter Paradise, Megan Ann Pariti, Vernis & Bowling of Broward, Hollywood, FL, for Defendant Healthcare Trust of America, Inc.
Gregory Scott Glasser, Klein Glasser Park Lowe & Pelstring, P.L., Miami, FL, Megan Ann Pariti, Thomas Walter Paradise, Vernis and Bowling of Broward, Hollywood, FL, for Defendant Cushman & Wakefield, U.S., Inc.
ORDER DENYING DEFENDANTS’ DAUBERT MOTION
WILLIAM P. DIMITROULEAS, United States District Judge
THIS CAUSE is before the Court on Defendants Healthcare Trust of America, Inc. and Cushman & Wakefield, U.S., Inc. ("Defendants")’s Motion to Strike or Alternatively Limit the Testimony of Plaintiff's Liability Expert David Gill (the " Daubert Motion") [DE 55]. The Court has carefully considered the Daubert Motion [DE 55], Plaintiff's Response in Opposition [DE 56], notes that no timely reply was filed, and is otherwise fully advised in the premises. The Court finds that Plaintiff's expert, David Gill, satisfies the standards set out in Daubert and its progeny, so the Daubert Motion is denied. I. BACKGROUND
In this personal injury case, Plaintiff Frank Demarzo ("Plaintiff") seeks damages stemming from injuries sustained as a result of a slip and fall on painted asphalt in the parking lot owned by Defendants. Plaintiff alleges that the painted surface was unreasonably slippery, which was worsened by rainwater, causing the Plaintiff to fall and suffer injuries to his ankle. Plaintiff's complaint alleges claims for negligence against both Defendants. In particular, Plaintiff alleges that Defendants failed to act reasonably under the circumstances by failing to use the appropriate type of paint on the asphalt, on an area that Defendants knew or should have known would be subject to various weather conditions and pedestrian traffic. Plaintiff retained David Gill ("Mr. Gill") to provide expert opinions on the paint Defendants used on the asphalt, including the paint's slip resistance qualities and standard practices concerning safe walking surfaces. By the instant motion, Defendant seeks to strike or, alternatively, limit the testimony of Plaintiff's liability expert, Mr. Gill, who has opined that the painted asphalt surface did not provide adequate slip resistant when there were wet conditions and that the surface caused Plaintiff's injuries.
II. STANDARD OF REVIEW
Rule 702, as explained by Daubert and its progeny, governs the admissibility of expert testimony. Rink v. Cheminova, Inc. , 400 F.3d 1286, 1291 (11th Cir. 2005). In Daubert , the Court described the gatekeeping function of the district court to "ensure that any and all scientific testimony or evidence is not only relevant, but reliable." Daubert , 509 U.S. 579 at 589, 113 S.Ct. 2786. As stated in the Advisory Committee Notes accompanying Rule 702 of the Federal Rules of Evidence, "[a] review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule." See Advisory Committee Notes to the 2000 Amendment to Rule 702. In addition, the trial judge is afforded broad discretion in deciding Daubert issues. See Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
Rule 702 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.
In Rink v. Cheminova, Inc. , 400 F.3d 1286 (11th Cir. 2005), the Eleventh Circuit set forth a three-pronged approach to qualifying expert witnesses: To fulfill their obligation under Daubert , district courts must engage in a rigorous inquiry to determine whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert ; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Id. at 1291–1292 (internal citations omitted). The party offering an expert has the burden of satisfying each of these elements by a preponderance of the evidence. See Id. at 1292 ; see also Allison v. McGhan Med. Corp. , 184 F.3d 1300, 1306 (11th Cir. 1999). III. DISCUSSION
Plaintiff has proffered the expert testimony of David Gill ("Mr. Gill"), who has opined that: (1) the surface Plaintiff slipped and fell on was an asphalt surface painted over with an enamel oil-based paint; (2) the application of the enamel oil-based paint filled the peaks and valleys in the asphalt, removing the asphalt's inherent slip resistant qualities; (3) it was reasonably foreseeable that rainwater would be present on the painted asphalt surface; and (5) the presence of rainwater on the painted asphalt at the time of Plaintiff's fall rendered it not slip resistant and below the standard of care for pedestrian walkway surfaces. Defendants move to strike or limit Mr. Gill from testifying at trial regarding the paint used on the asphalt under Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Rule 702 of the Federal Rules of Evidence. Specifically, Defendants argues that: (1) Mr. Gill lacks the qualifications to render opinions he proposed to introduce at trial; (2) Mr. Gills opinions are based on unreliable methods that lack a scientific basis; and (3) Mr. Gil's opinions will confuse the jury and not assist them in determining the facts at issue.
Having carefully considered the parties’ arguments for and against the exclusion at trial of Mr. Gill's expert opinion, the Court denies the Daubert Motion.
First, Mr. Gill is sufficiently qualified in terms of training, skill, knowledge, and experience to provide helpful, relevant testimony that will likely assist the jury in understanding these matters, which are "beyond the understanding of the average lay person." See U.S. v. Frazier , 387 F.3d 1244, 1262 (11th Cir. 2004). The Court disagrees with Defendants’ contention that Mr. Gill needs to be an asphalt or paint expert to render an opinion about the present case. Mr. Gill has over fourteen (14) years of experience serving as the president of a company specializing in identifying areas prone to slip and fall accidents. See [DE 56-3]. He has received specialized professional training regarding hard-flooring and pedestrian walking surfaces. Further, Mr. Gill testified that he has spent approximately 35% of his professional time performing expert work in litigation and 65% of his time consulting with property managers and owners. See [DE 55-1], at 7:20-22. In fact, Mr. Gill has been retained as a slip-and-fall expert over forty (40) times within the last five years. Experts may be qualified through their knowledge, skill, training, or education and are "not necessarily unqualified simply because [their] experience does not precisely match the matter at hand." J.G. v. Carnival Corp. , No. 12-21089-CIV, 2013 WL 752697, at *3 (S.D. Fla. Feb. 27, 2013) (quoting Furmanite Am., Inc. v. T.D. Williamson , 506 F.Supp.2d 1126, 1129 (M.D. Fla. 2007) (citing Fed. R. Evid. 702 )). "[S]o long as the expert is minimally qualified, objections to the level of the expert's expertise go to credibility and weight, not admissibility." Ctr. Hill Courts Condo. Ass'n, Inc. v. Rockhill Ins. Co. , No. 19-CV-80111, 2020 WL 475633, at *2 (S.D. Fla. Jan. 28, 2020) (citing Clena Invs., Inc. v. XL Specialty Ins. Co. , 280 F.R.D. 653, 661 (S.D. Fla. 2012) ). In short, Mr. Gill is qualified.
Second, the potential flaws in Mr. Gill's methodology that Defendants raise go to the weight and not the admissibility of Mr. Gill's testimony. Courts have set forth the following list of nonexclusive factors to assist in determining whether an expert's methodology is reliable: "(1) whether the expert's methodology can be tested; (2) whether the expert's scientific technique has been subjected to peer review and publication; (3) whether the method has a known rate of error; (4) whether the technique is generally accepted by the scientific community." Rink , 400 F.3d at 1291 (citing Quiet Tech. DC–8, Inc. v. Hurel–Dubois UK Ltd. , 326 F.3d 1333, 1341 (11th Cir. 2003) ). "Notably, however, these factors do not exhaust the universe of considerations that may bear on the reliability of a given expert opinion, and a federal court should consider any additional factors that may advance its Rule 702 analysis." Quiet Tech. , 326 F.3d at 1341. When determining whether a party has met its burden, "[a] trial judge has ‘considerable leeway’ in deciding how to determine when a particular expert's testimony is reliable and how to establish reliability." Coconut Key Homeowners Ass'n, Inc. v. Lexington Ins. Co. , 649 F. Supp. 2d 1363, 1371 (S.D. Fla. 2009) (quoting Graff v. Baja Marine Corp. , 310 F. App'x 298, 302 (11th Cir. 2009) ).
Here, Defendants argue that Mr. Gill's opinions are based entirely upon subjective visual observations and not scientific evidence. Specifically, Defendants argue that Mr. Gill's visual magnification inspection is not a generally recognized method in the industry for conducting walkway inspections to determine the slip-resistance of a surface and, further, Mr. Gill did not conduct a coefficient of friction testing on the painted asphalt. However, Mr. Gill testified that he was not able to perform coefficient of friction testing due to the uneven surface texture of the asphalt. See [DE 55-1], at 74:18-23. Mr. Gill's inability to conduct a coefficient of friction test on the asphalt does not automatically render his methodology and opinions unreliable. See Galarza v. Carnival Corp. , 2016 WL 7507883, at *3-4 (S.D. Fla. Aug. 8, 2016). Instead, Mr. Gill performed a magnified visual inspection, conducted porosity testing, and conducted a review of the technical and safety data sheets for the paint used on the asphalt. Thus, while Mr. Gill did not perform a coefficient of friction testing, he could still testify about what he learned through physical inspection of the painted surface, industry standards regarding slip resistance, his magnification testing, investigation into technical and safety data sheets for the paint used, his porosity testing, and other available evidence, provided it is admissible. That Mr. Gill failed to conduct a coefficient of friction test may pose grounds for cross-examination but does not call the reliability of his methodology into doubt.
Defendants further contend that the present matter is factually similar to those facts presented in Alsip v. Wal-Mart Stores E., LP . See 658 F. App'x 944, 945 (11th Cir. 2016). However, in that case, the slip-and-fall expert did not perform any on-site testing and instead relied upon an inspection of photographs to determine there was no aggregate in the paint. Id. at 948 ("[The expert's] determination upon inspection of photographs that there was no aggregate in the paint does not in and of itself support the conclusion that the crosswalk stripes were not slip resistant."). Unlike the expert in Alsip , Mr. Gill did in fact perform a physical site inspection. Moreover, Mr. Gill testified that, based upon his magnification inspection, the paint failed to contain an abrasive additive, cross-cut grooving, texturing, or other appropriate means that would render the surface slip resistant. [DE 55-1], at 107:24-108:7. In any case, Defendants’ arguments attack the weight and persuasiveness of Mr. Gill's testimony and, thus, are more appropriate for attack on cross-examination.
Finally, the Court finds that the proffered expert testimony will have a tendency not to confuse the jury, but rather to "logically advance[ ] material aspect[s] of the case.’ " See Coral Way, L.L.C. v. Jones , No. 05-21934-CIV, 2006 WL 5249734, at *2 (S.D. Fla. Oct. 17, 2006) (quoting McDowell v. Brown , 392 F.3d 1283, 1299 (11th Cir. 2004) ). The Eleventh Circuit has held that "matters of slip resistance and surface friction are ‘beyond the understanding and experience of the average lay citizen.’ " See Rosenfeld v. Oceania Cruises, Inc. , 654 F. 3d 1190, 1194 (quoting United States v. Rouco , 765 F.2d 983, 995 (11th Cir. 1985) ). That Mr. Gill did not consider any "other appropriate means" Defendants could have employed to render the painted asphalt slip-resistant is a matter more appropriate for questioning on cross-examination.
The Court has found Mr. Gill is qualified and proposes to give testimony that passes muster under Daubert . As such, the Court will not strike or limit his testimony pretrial. Defendants’ criticisms of Mr. Gill's opinion may form the basis for "[v]igorous cross-examination" and "presentation of contrary evidence" at trial. See Maiz v. Virani , 253 F.3d 641, 666 (11th Cir. 2001).
IV. CONCLUSION
Based upon the foregoing, it is ORDERED AND ADJUDGED that Defendants’ Daubert Motion [DE 55] is DENIED .
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 5th day of October, 2021.