Expert Excluded for Insufficient Factual Basis

A prior post once discussed the importance of an expert using the correct equipment and applying the correct standards to form the basis for a supportable, admissible opinion.[1] The post assumed that the expert actually examined the floor at issue.  Apparently that was one assumption too many.

Iazzetta v. Smith’s Food & Drug Ctrs., Inc.[2] concerned a slip and fall on a wet, tile floor.   The plaintiffs disclosed a liability expert.

Gary Presswood has opined that (1) the tile floor in the Smith’s store “was hazardous to pedestrians”; (2) the tile floor in the Smith’s store “was the cause of [Ralph’s] fall and injuries”; (3) if Ralph’s fall is determined “to be the result of a wet walkway following a floor-cleaning operation,” then Smith’s failure to warn or restrict access to the area indicates “a lack of appropriate risk management”; and (4) “there is no evidence to indicate [that] Ralph … contributed to his fall and injuries in any way.”

However, Mr. Presswood acknowledged he never examined the floor at issue.  Despite that, he concluded “the floor was inherently hazardous to pedestrians and caused Ralph’s fall.”  The only support Mr. Presswood offered for that opinion was that “he has had the opportunity to evaluate many floor surfaces especially tile floors such as those found in the subject Smith’s facility.”  However, Mr. Presswood’s report qualified that his opinion specifically applied to “tile floors such as those found in the subject Smith’s facility.”  Nothing else supported Mr. Presswood’s opinion.  Plaintiffs did not “point to any evidence indicating anything about the floor other than the general fact that it is covered in tile.”  “[T]he type of tile, its manufacturer, age, condition, and what kind of finish it has, if any, are all unknown to this expert.  Presswood offers nothing to connect the floors that he has examined with the floor in this Smith’s store.”

This is not to say that the testimony absolutely required that the expert personally test the floor.  For instance, the expert could have laid foundation for the opinion by identifying the type of tile at issue and then using testing of that same type of tile. In other words, there needed to be an connection between the data upon which Mr. Presswood relied and his opinion.  Plaintiffs did not provide it, so his liability opinion was excluded.

[1] November 23, 2015.

[2] 2:14-cv-01810, 2016 U.S. Dist. LEXIS 15641, 2016 WL 527047 (D. Nev. Feb. 9, 2016).