Schlis et al v. Target Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Nancy Schlis
v. Civil No. 19-cv-1201-JD
Opinion No. 2021 DNH 100
Target Corporation
O R D E R
Nancy Schlis brings this negligence action against Target
Corporation. Schlis asserts that Target’s negligence in
maintaining and operating its Greenland, New Hampshire,
department store resulted in a slip and fall incident in which
she fractured her shoulder. The court denied Target’s motion
for summary judgment. Target now moves to exclude, under
Federal Rule of Evidence 702, the expert report and testimony of
Schlis’s proposed expert witness David Dodge, who plans to
testify about possible alternative flooring materials and safety
procedures that Target could have used to prevent Schlis’s fall.
Standard of Review
Federal Rule of Evidence 702 governs the admissibility of
expert testimony:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 1 of 13

2
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact
in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. The proponent of the expert’s opinion bears
the burden of showing that it is admissible. Milward v. Rust-
Oleum Corp., 820 F.3d 469, 473 (1st Cir. 2016); United States v.
Tetioukhine, 725 F.3d 1, 6 (1st Cir. 2013). Once the expert’s
qualifications are established, the opinion is shown to be
relevant, and the bases for the opinion are both sufficient and
reliable, “the credibility and weight of the expert’s opinion
[are] for the factfinder.” United States v. Jordan, 813 F.3d
442, 446 (1st Cir. 2016); see also Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 597 (1993).
Background
On February 20, 2018, Schlis slipped and fell on spilled
cooking oil in the baking aisle in Target’s Greenland, New
Hampshire, store. Schlis filed this lawsuit and retained David
Dodge as an expert witness. Dodge produced a report in which he
concludes that Schlis fell “because the Target store owners and
management did not provide a flooring material that would be
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 2 of 13

3
slip resistant under all foreseeable conditions. The failure to
provide such a floor or the managerial system to continuously
monitor the store for such foreseeable, unsafe conditions as
spilled liquids was the direct cause of Ms. Schlis’[s] accident
as she describes it.” Doc. 19-2 at 2.
Dodge supports his conclusion by discussing the typical
process for assessing potential risks in a retail store, which
he derives from his experience and American National Standard
Z244.1-2016.1 He discusses the available options for a store to
mitigate the risk of a person slipping and falling and their
relative efficacy. For example, he states that use of warnings
is less effective than providing a slip-resistant floor because
provision of warnings requires a spill to be identified by store
employees first. He suggests use of a continuously-monitored
video system to improve store employee response time to spills.
He also states that some stores use a systematic inspection
system, where employees are assigned to inspect store aisles for
spills. He asserts that this is less effective than a video-
monitoring system, but more effective than Target’s ad hoc
approach.
Dodge also refers to an article, published in 2014, that he
wrote in a magazine called “Mercantile Safety,” in which he
1 Dodge attached an excerpt of the standard to his report.
Doc. 19-2 at 11.
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 3 of 13

4
discusses his view of best practices for risk management and
safety in retail stores. In the article, he refers to the
International Building Code, the Life Safety Code, and the ASTM
codes.
In addition, Dodge opines that the Life Safety Code and the
International Building Code, as adopted by New Hampshire,
require that flooring within a means of egress to be slip
resistant under foreseeable conditions. He opines that the area
where Schlis slipped and fell therefore required the flooring to
be slip resistant.
Dodge’s conclusions are based primarily on his experience.
According to his curriculum vitae, he has worked in the safety
consulting field since 1971. He holds a marine engineering
degree from Maine Maritime Academy, and he has taken coursework
in industrial safety at Northeastern University, Syracuse
University, and the University of Massachusetts, Amherst. He
holds a “Certified Safety Professional” certification. He is a
member of the National Fire Protection Association and
participated in the Committee on Mercantile and Business
Occupancies for the Life Safety Code. He has authored various
publications on safety for magazines and state agencies. He
notes in his affidavit that his work as a safety consultant has
included work for retail stores such as Hannaford.
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 4 of 13

5
Discussion
Target moves to exclude Dodge’s expert report and proposed
expert testimony, arguing that he is not qualified to testify as
an expert, that his opinions are not scientifically valid, and
that his opinions would not be helpful to the jury. Schlis
objects.
A. Qualifications
Target argues that Dodge is not qualified to opine as an
expert “with regard to [Target’s] compliance with the subject
building and life safety codes or Target’s use of security
surveillance . . . .” Doc. 19-1 at 3. Target contends that
Dodge’s education is in the field of marine engineering and that
his only relevant education is coursework on industrial safety
from Northeastern University, University of Massachusetts, and
Syracuse University. Target argues that Dodge’s employment as a
loss-control consultant for manufacturing companies is
insufficient to qualify him as an expert on safety standards in
a retail setting. Target also asserts that Dodge does not have
any indicated professional accomplishments related to building
codes, fall protection, or security surveillance systems, nor is
he a member of any relevant professional organizations on those
subjects.
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 5 of 13

6
Schlis responds that Dodge is a “Certified Safety
Professional” and has continually updated his education to
maintain his certification to be a safety consultant across
fifty years. Schlis notes that Dodge has previously been
qualified as an expert on safety issues, even if his opinions
have ultimately been excluded on other grounds. See Hecht v.
Waterville Dev. Corp., 05-CV-462-PB, 2007 WL 542151, at *2
(D.N.H. Feb. 16, 2007).
Based on the current filings, Schlis has demonstrated that
Dodge is sufficiently qualified to testify about the safety and
risk management issues discussed in his report. See id. (“The
court does not doubt that Mr. Dodge is an expert on safety
issues.”). While Dodge’s college degree is in marine
engineering, it is undisputed that his professional career,
which spans fifty years, has been as a safety consultant.
Dodge’s education as an engineer does not detract from his
professional experience. Furthermore, Dodge states in his
affidavit attached to Schlis’s objection to the motion to strike
that, as part of his professional experience, he has worked
specifically with retail stores, including Hannaford stores,
which are retail supermarkets. Dodge’s curriculum vitae further
indicates that, contrary to Target’s argument, he has
professional accomplishments and membership in professional
organizations related to safety consulting and the subject
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 6 of 13

7
matter of his opinion. Target’s motion is denied as to its
challenge to Dodge’s qualifications.
B. Scientific Validity / Reliability
Next, Target contends that Dodge’s opinion is not
scientifically valid. Specifically, Target argues that Dodge
uses the term “slippery” in his report, but he did not perform a
coefficient of friction test on the flooring at issue. Target
also disagrees with Dodge’s interpretation and application of
the Life Safety Code. It contends that Dodge speculates that
use of a security surveillance system would have reduced the
time it took Target employees to respond to spills and that a
systemized inspection procedure would have been more likely to
identify the spill as opposed to the procedure used by Target.
Schlis responds that Dodge’s experience and reliance on
national standards such as the Life Safety Code suffices to
support his assertions. Schlis notes that, although Dodge uses
his own article in Mercantile Safety to support his theories,
the article makes reference to and relies on “national standards
and codes” and “other materials and sources.” Doc. 20 at 7.
Schlis adds that “[i]f defense counsel wishes to voir dire Mr.
Dodge on such issues before he issues certain opinions at trial,
undersigned expects that the Court will be more than satisfied.”
Id.
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 7 of 13

8
An expert witness can testify on the basis of his
experience. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 156 (1999) (“[N]o one denies that an expert might draw a
conclusion from a set of observations based on extensive and
specialized experience.”). “If the witness is relying solely or
primarily on experience, then the witness must explain how that
experience leads to the conclusion reached, why that experience
is a sufficient basis for the opinion, and how that experience
is reliably applied to the facts. The trial court's gatekeeping
function requires more than simply ‘taking the expert's word for
it.’” Fed. R. Evid. 702 advisory committee’s note to 2000
amendments; see also Brown v. Wal-Mart Stores, Inc., 402 F.
Supp. 2d 303, 308 (D. Me. 2005). Ultimately, it is the
reliability of the expert witness’s opinion that the court
evaluates in its role as gate keeper, not its credibility.
Lawes v. CSA Architects and Engineers LLP, 963 F.3d 72, 105 (1st
Cir. 2020).
In this case, a test to determine the coefficient of
friction of Target’s flooring is not necessary to ascertain the
reliability of Dodge’s general observation that impermeable
vinyl floors become slippery when exposed to oil or other
liquids. As Target itself suggests, Dodge’s observation is
grounded in common sense. Doc. 19-1 at 8 (“Dodge is doing
little more than stating common sense, that flooring may be
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 8 of 13

9
slippery.”).2 Additionally, Target’s argument that Dodge
incorrectly interpreted and applied the Life Safety Code in his
report goes to credibility or weight, which may be addressed
through cross examination. See Jordan, 813 F.3d at 446.
Schlis, however, has only made a minimally sufficient
showing to support the reliability of Dodge’s opinions about the
relative efficacy of risk management strategies (i.e., video
surveillance and systemized inspections). Although that is
enough to avoid outright exclusion of those opinions at this
stage, without further explanation from Dodge about how he has
applied his training and experience to obtain the opinions
presented in his report, the court does not have enough
information to determine conclusively whether or not the
opinions are reliable. Accordingly, before trial,3 the parties
will have the opportunity to question Dodge about his report and
the materials on which it relies. See United States v. Diaz,
300 F.3d 66, 73-74 (1st Cir. 2002) (stating that “there is no
particular procedure that the trial court is required to follow
in executing its gatekeeping function under Daubert”); Hochen v.
Bobst Group, Inc., 290 F.3d 446, 452 (1st Cir. 2002) (affirming
2 Furthermore, whether the floor was “slippery” does not
appear to be a disputed issue in this case.
3 Trial in this case is currently set for the two-week
period beginning September 8, 2021.
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 9 of 13

10
exclusion of expert opinion as unreliable after voir dire
revealed that the proposed expert “showed little knowledge” in
the relevant fields). After Dodge’s voir dire examination,
Target may reraise its objection to the reliability of Dodge’s
opinions as to the relative efficacy of risk management
strategies.
C. Relevance and Helpfulness to Jury
Target argues that Dodge’s opinion will not help the jury
determine anything for which an expert opinion is required.
Target contends that Dodge’s opinion is, in essence, that
flooring can become slippery when wet, which is a common sense
conclusion. Schlis responds that Dodge opines about the
application of the Life Safety Codes to Target’s flooring, risk
assessment plans, and about the risks caused by liquids spilling
on impervious vinyl flooring. Schlis contends that Dodge does
not merely place an “expert sheen” on matters of common sense,
but rather takes the facts and opines about whether Target
satisfied applicable safety codes or applied appropriate risk
management plans considering the risks.
To testify as an expert, a witness must provide knowledge
that will “help the trier of fact to understand the evidence or
to determine a fact in issue.” Fed. R. Evid. 702(a); United
States v. Shay, 57 F.3d 126, 132-33 (1st Cir. 1995) (“The
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 10 of 13

11
fundamental question that a court must answer in determining
whether a proposed expert's testimony will assist the trier of
fact is ‘whether the untrained layman would be qualified to
determine intelligently and to the best degree, the particular
issue without enlightenment from those having a specialized
understanding of the subject matter involved.’”). Expert
testimony does not help the trier of fact if it can be derived
from common sense or experience, the jury’s perceptions, or
simple logic. See Jenks v. New Hampshire Motor Speedway, 2012
WL 405479, at *5 (D.N.H. Feb. 8, 2012) (“A statement of the
obvious which is within the ken of a lay jury is not the proper
subject of expert testimony.”).
Target misunderstands the scope and purpose of Dodge’s
expert opinion. In support of his conclusions in his written
report, Dodge observes that vinyl flooring becomes slippery when
wet, which Target contends is a fact that an untrained layman
could determine. Based on that foundational observation,
however, Dodge opines that Target should have used different
flooring or altered the flooring so that it complied with
applicable safety codes.
The slipperiness of Target’s flooring when exposed to oil
is a relevant, even if obvious, supporting fact for the opinion,
but it is not where the probative value of the opinion lies.
Rather, Dodge opines that, because of its characteristics,
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 11 of 13

12
Target’s flooring did not comply with applicable safety codes,
that there were alternative flooring options available with
better characteristics that would have prevented Schlis’s fall,
and that Target could have taken extra steps to discover the
spill before Schlis fell by implementing an alternative risk
management plan, such as video surveillance and systemized
inspections. Testimony by a person with experience and
expertise on these issues would be helpful to the jury, which
will not have a technical understanding of safety codes or about
the availability or feasibility of alternative flooring options
or risk management plans. Therefore, Target’s motion to strike
Dodge’s report and preclude his testimony on these grounds is
denied.4
4 Target also presents the court with the text of Federal
Rule of Civil Procedure 26(b)(2)(B) and states that, considering
this rule, Dodge should be precluded from offering testimony on
matters not contained within his written report. Target,
however, fails to make any objection to a specific matter that
is not contained within Dodge’s expert report. It is up to
counsel, not the court, to identify and object to rules
violations in a sufficiently specific manner so that the court
can make a meaningful ruling. E.g., United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely to
mention a possible argument in the most skeletal way, leaving
the court to do counsel's work, create the ossature for the
argument, and put flesh on its bones.”).
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 12 of 13

13
Conclusion
For the foregoing reasons, Target’s motion to exclude the
expert report and testimony of David Dodge (doc. no. 19) is
denied without prejudice to Target’s option to challenge
pretrial Dodge’s opinions about the relative efficacy of
alternative risk management strategies (i.e., video monitoring
and systemized inspections). Counsel shall contact the
courtroom deputy to schedule the voir dire hearing during the
latter part of August.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 24, 2021
cc: Counsel of Record.
Case 1:19-cv-01201-JD Document 22 Filed 06/24/21 Page 13 of 13