The Blind Trust of the Lawyer/Expert Witness Relationship

Clients rely upon lawyers to guide them through the legal process.  Lawyers sometimes must rely upon expert witnesses to help understand the facts they are litigating.  This can then place the lawyers in the same precarious position of blind trust that clients sometimes experience.  The experts are also in a precarious position of blind trust that the lawyers understand the opinions offered.

In Alsip v. Wal-Mart Stores East, LP, the plaintiff slipped and fell on the painted yellow crosswalk stripe during a rain shower and sued Wal-Mart.[1]  She argued Wal-Mart was negligent because the stripe “not slip resistant in accordance with industry standards. At the core of Ms. Alsip’s case is the allegation that Wal-Mart did not include aggregate in the paint mixture to ensure a high-traction walking surface.”  She hired an expert witness to meet her burden of proof.  He concluded “(1) the top layer of paint did not contain an adequate amount of aggregate; (2) the paint was improperly applied so as not to adhere; and (3) the underlying layer of paint should have been removed by mechanical shot blasting.”

Wal-Mart moved to exclude this opinion as unreliable and for summary judgment.  The expert had not examined the stripe itself to determine if aggregate was present, but this could be determined by the photographs and was not a disputed point.  However, Wal-Mart challenged whether this alone meant the stripe was not slip resistant.

Both the documents to which Kendzior directs our attention and Kendzior himself identify four discrete methods of achieving a slip-resistant surface: (1) aggregate; (2) cross-cut grooving; (3) texturing; or (4) other appropriate means. The absence of aggregate does not render a surface non-conforming if the surface contains cross-cut grooving, texturing, or another appropriate means of creating traction. Thus, Kendzior’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.

In other words, Plaintiff had evidence of a breach sufficient to defeat summary judgment on one of the four alternative methods to meet the industry standard.  However, plaintiff had no evidence that Wal-Mart did not satisfy the other three alternatives.  Some of my colleagues are probably thinking, “well, what evidence did Wal-Mart provide that it did satisfy those three methods?”  That argument misses the point.  During plaintiff’s case-in-chief, or in opposing summary judgment, the burden of proof was on the plaintiff.  She presented no evidence on any of these three points, meaning there was no genuine issue of material fact.

The point of this post, however, is how would the lawyer have known of the other three alternative methods unless the expert witness addressed them?  The lawyer is not an expert in the field, which is why an expert is needed.  Conversely, the expert must rely upon the lawyer to understand the basis and reasons for the opinions offered.  If the expert does not explain or the lawyer misses the point, difficulties may arise.

[1] 658 Fed. Appx. 944, 2016 U.S. App. LEXIS 15224 (11th Cir. 2016).  For those unfamiliar with the Federal Appendix, its decisions are unpublished.