I previously posted about why covert site inspections are generally a bad idea. I even guessed as to what various remedies might be if one occurred. Nakamura v. Lowe’s Cos. actually addressed the issue.
The case arose from a slip and fall in a Lowe’s garden center. The customer saw the floor was wet as she approached, but still fell. Lowe’s moved for summary judgment arguing the customer knew the floor was wet before she fell, so the hazard was open and obvious as a matter of law. One of the customer’s points in her opposition was from an expert witness who concluded “the presence of other contaminants on the surface such as wet potting soil and algae, would present a substantial slip hazard for pedestrians exercising reasonable care.” There were at least two procedural problems with the expert: (1) his opinions “are based on an unauthorized site inspection, and (2) Plaintiff failed to disclose her expert or produce an expert report.”
As to the site inspection, the expert “had a senior member of his staff … inspect the location of the incident on June 19, 2015. [The staffer] took digital photographs and various measurements of relevant areas around the Garden Center.” This evidence was excluded. “There is no evidence that Plaintiff ever served Defendant a request or obtained authorization to photograph and measure its property. Therefore, the Court SUSTAINS Defendant’s objection that [the expert’s] opinions are inadmissible because they are based on an unauthorized inspection.”
Second, the customer had never disclosed the expert report until her opposition to summary judgment, well after the expert disclosure deadlines. “There is no evidence that Plaintiff ever served Defendant an expert disclosure or the expert’s written report. Therefore, the Court SUSTAINS Defendant’s objection [the expert’s] opinions are inadmissible because Plaintiff failed to disclose her expert and produce the expert’s report.”
Somewhat surprisingly, these remedies actually correlate to the remedies I hypothesized on March 6, 2017. The lesson? Do not go outside Rule 34 for site inspections.