Speculation ≠ Expert Opinion

As a prior post discussed, merely marketing yourself as an “expert witness,” and conning a lawyer into hiring you does not produce admissible expert testimony. The same “expert” who could only offer three possibilities in that prior post, offered only more speculation in a second case I had.

This question arose in an unremarkable slip and fall case. The plaintiff fell in the location marked by the yellow circle. She followed the path outlined in orange. The black boxes are pallets with merchandise on them. No one ever could determine how the spill at the yellow circle was created. However, there was a second “spill” marked by the red circle. There were paper towels on the floor, but there was never any indication of what was under them.

The plaintiff disclosed an expert who offered a theory that 1) spill 1 in red was a fluid; 2) it could have migrated across the floor; and 3) created spill 2. The expert was deposed and it became clear there the theory was supported only by assumptions and guesses.

24:19 Q. Is there a gap between the entrance to
20 Aisle 2 where Ms. Plaintiff fell and where this pallet is
21 that has the wet floor sign next to it?
22 A. Yes.
23 Q. Are these two distinct hazards, then?
24 A. They could be, or they could be related.
25 We don’t know.
25:1 Q. What evidence would you need to make
2 that — to determine if they were related?
3 A. Photographs would be nice.
4 Q. Anything else?
5 A. Oh, I’m sure there’s other things, but the
6 photographs would be probably the best go-to item.
7 Q. Is this the hazard that — or strike that.
8 The wet floor sign that I circled on
9 Exhibit 1, is that the hazard you’re referencing in
10 No. 2-C on page 8?
11 A. Yes.
12 Q. Is that where Ms. Plaintiff fell?
13 A. I’m sorry?
14 Q. Sorry.
15 How is this hazard that you saw and that
16 we circled on Exhibit 1 related to Ms. Plaintiff ‘s fall?
17 A. It’s in the general vicinity, and that’s
18 pretty much all we know at this point.
19 Q. Do we know what that hazard is or why that
20 wet floor sign is there?
21 A. No.
22 Q. Are you aware of any link whatsoever
23 between the hazard that we circled on Exhibit 1 and
24 Ms. Plaintiff ‘s fall?
25 A. I can draft upon my experience and seeing
26:1 similar situations unfold in my career, which is simply
2 that, many times, when there’s a spill in one area, if
3 it’s left unattended and people are walking through it,
4 the spill can migrate several feet in any direction,
5 depending on the foot traffic.
6 Sometimes a spill originates in one place,
7 and there’s droplets of water to another place.
8 Sometimes there’s a spill in one place. The person
9 might stumble to recover the item they’re carrying and
10 then spill in another place, so you’re actually
11 creating two puddles. I could go on and on.
12 Q. Sure.
13 A. But we really don’t know, based on what we
14 have in this case.
15 Q. And do we have any evidence of those
16 scenarios or other hypotheticals that you might have
17 seen actually occurring on this particular case?
18 A. No.

In other words, there may have been two hazards on the floor when Plaintiff fell but the expert lacked the factual evidence required to link them. Conversely, the store may have had knowledge of the one spill in one area of the aisle where it placed a warning sign and towels, but not the second in the separate area where Plaintiff fell. The expert’s testimony was complete speculation and would have resulted in a motion in limine, but the case resolved before the motion could be filed.