A Capehart Scatchard Blog

Plaintiff’s Retail Safety Expert Found Not Qualified to Testify as Expert

By on May 4, 2018 in Litigation with 0 Comments

Plaintiff Kim Yazujian sued PetSmart for an injury that occurred due to a slip and fall at one of their stores. The case was tried before a jury and the jury found PetSmart not liable. Plaintiff appealed on the basis that the trial court judge abused its discretion in excluding his retail safety expert from testifying at trial. In Yazujian v. PetSmart, 2018 U.S. App. LEXIS 9607 (3d Cir. April 17, 2018), the federal appeals court (United States Court of Appeals for the Third Circuit), was asked to set aside the trial on the basis that the District Court judge had made a mistake in excluding plaintiff’s expert from testifying at the trial.

The plaintiff had slipped on a puddle of water and fell inside the PetSmart store. The plaintiff intended to have Robert Loderstedt, a purported retail management and store safety expert testify on his behalf. The defendant challenged his qualifications and the District Court conducted a hearing to determine whether he was qualified to testify. The District Court found his methodology was flawed and that the jury would not benefit from his testimony. Hence, the Court barred him from testifying.

The Court relied on Rule of Evidence 702 as to the need for expert qualifications, as well as the standard set forth in the Supreme Court case of Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993), in determining if the expert was qualified to testify. Under Daubert, the Supreme Court made clear that the expert’s opinion “must be based on the methods and procedures of science rather than on subjective belief or unsupported speculation.”

Here, the District Court found that Mr. Loderstedt had “no academic background in retail safety, no formal training in retail management or safety, and no retail work experience other than a job as a stock clerk more than 50 years prior.” He was relying on his time training under a person who he claimed to be an expert in retail safety, his review of over one hundred retail store manuals, and his visits to retail stores.  He conceded that there are no formal industry standards in the area of retail safety. He sought to offer an opinion on his view of the industry best practices that were based upon his review of unspecified retail manuals. He conceded that his methods were not subject to peer review and there was no evidence that this method was tested, accepted, or used by other experts in the field of retail safety. He did not even review the safety manual or policies of the PetSmart store at issue in this case.

Thus, the Third Circuit agreed with the District Court that Mr. Loderstedt was not qualified as an expert in retail safety and that is testimony “was the product of methods and principles that were not reliable.” The appeals court found that his testimony would have constituted “no more than his subjective belief or unsupported speculation.” Thus, the Third Circuit affirmed the judgment of the District Court barring the plaintiff’s expert from testifying at trial.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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