Expert-aganza ’17: Planning to Fail, Part 1

How many times have you heard the saying that failing to plan is planning to fail? I believe It is repeated so often because of the simple truth it conveys. This post is the first of a series arising from cases I have handled where the opposing party’s expert witness strategy did not work well, due to what I suspect may have been inadequate planning. I have no idea what actually happened, but from the outside looking in, planning would be my first guess. The point of these posts is not to shame, but to remind that, although life is busy, problems will arise if strategies are not planned. In a world where even the best laid plans may not work, poorly conceived and hastily laid plans may be worse than no plan at all.

The example for this post arose in a slip and fall case for a national restaurant chain I represented where the customer decided to disclose a liability expert. 1) Was an expert witness necessary? Yes, because the customer testified the floor was clean and dry when she fell. She instead argued the floor itself was defective. 2) Did the expert have sufficient evidence to consider? The customer thought so, but I disagreed.

The case was in federal court, a rare discovery extension was obtained, and initial expert disclosures occurred 185 days after discovery opened.  The plaintiff disclosed a liability expert who concluded the store’s floor itself breached a standard of care.

The expert’s opinion had problems though, as exemplified by the opinion section.

Preliminary Opinions and Conclusions

The plaintiff’s statement that the floor surface was “new and very slippery” may indicate that the floor surface slip resistance level, wet and/or dry may have fallen significantly below the national consensus standards for what constitutes a safe and slip resistant walking surface.  Also, within the deposition testimony of the [employee] stated how “slick” the new and waxed floors were.

I reserve the right to amend this report based on my review of additional documents provided by your office and the opportunity to perform objective slip resistance testing at the location of plaintiff’s slip and fall event.

No supplemental report was disclosed before discovery closed, nor did the expert ever perform slip resistance testing at the scene.  There was no explanation as to why he had not done so in the 185 days of discovery before initial expert disclosures.

The expert seemed to reach two conclusions.  First, that Plaintiff’s “statement that the floor surface was ‘new and very slippery’ may indicate” something about the floor’s slip resistance level.  This was a conditional statement.  Plaintiff’s statement may indicate something, but it also may not.  The expert did not state whether one was more likely than the other, merely that both were possible.

His second conclusion, based upon the first, was that the floor’s slip resistance level “may have fallen significantly below the national consensus standards for what constitutes a safe and slip resistant walking surface.”  This too was a conditional statement.  It was possible the floor is below a standard of care, however it was just as possible that the floor satisfied that standard.  Once again, the expert acknowledged both possibilities, but did not state one was more likely than the other.

To the extent the expert expressed an opinion, the conditional language he used to express it indicated these two facts were insufficient to determine if the store’s floor breached a standard of care.  Consequently these two facts were insufficient, by his own language, to support an admissible opinion.

Next, the expert’s opinion lacked any degree of professional certainty because it expressed mere possibilities.  He did not state that the store breached a standard of care, he only stated that was a possibility.  That could not help a jury understand a disputed, material fact.  It would only muddle the jury’s deliberations with speculative conjecture.

Finally, the expert’s conclusion was not the product of reliable principles or methods.  Even assuming the various standards cited in his report are applied, the facts upon which the expert relied were conditional.  Perhaps they triggered the standards, but perhaps they did not.

The case settled after the motion to exclude the expert was filed but before an opposition was due.  Maybe I was right, maybe not, but we’ll never know. The outcome is really beside the point because it was the last in a long sequence of foreseeable and predictable events. Had the need for an expert, and the related need for evidence, been identified earlier in the case, perhaps a discovery strategy could have been executed to help form a more informed opinion.