HOUSTON – A federal magistrate judge has denied a motion to exclude testimony of a licensed professional engineer, in a premises liability case where the plaintiff alleged she was injured when she fell in the parking lot of an AMC movie theater.
In a July 11 memorandum opinion, U.S. Magistrate Judge Andrew M. Edison issued the motion denial in Guadalupe Garcia Al-Dahwa’s lawsuit versus American Multi-Cinema, Inc.
“Plaintiff Guadalupe Garcia Al-Dahwa alleges she suffered personal injuries as the result of a trip-and-fall accident in the parking lot of a movie theater owned by AMC. More specifically, Al- Dahwa, who says she suffers from a physical disability, contends she tripped and fell in a ‘designated walkway because the concrete in the walking area was cracked, broken and not level,” Edison stated.
“Al-Dahwa further alleges ‘the walkway designated for disabled individuals to utilize was unreasonably dangerous because [AMC] failed to inspect, maintain and repair the area. According to the live pleading, the walkway did not comply with the American with Disabilities Act, the Texas Accessibility Standards and other building codes because of the jutting concrete, which resulted in an abrupt elevation change of the walking surface. Al-Dahwa also avers that AMC failed to warn her of the dangerous condition.”
Al-Dahwa designated Jason English as a testifying expert witness, due to his background as a licensed professional engineer and professional engineering consultant.
English shared his opinions in a 20-page expert report, which termed the principal causative factor related to [Al-Dahwa’s] fall as “the presence of an abrupt vertical rise and broken concrete disrepair in the accessible route providing access to the disabled parking area, creating an unreasonable hazard for pedestrians and individuals using rolling devices such as wheelchairs, walkers, rollators, etc.” and that “the presence of this fall hazard created an unreasonably dangerous condition certain in time to produce incidents.”
AMC asked the Court to preclude English from testifying at trial for two reasons: First, AMC insisted that English’s proffered opinions will not help the jury understand the evidence or determine a fact issue – and second, AMC argued that the probative value of English’s opinions are substantially outweighed by the danger of unfair prejudice, confusing the issues and misleading the jury.
To prevail on her premises liability claim, Al-Dahwa must establish four elements: (1) [AMC] had actual or constructive knowledge of the condition causing the injury; (2) The condition posed an unreasonable risk of harm; (3) [AMC] failed to take reasonable care to reduce or eliminate the risk; and (4) [AMC]’s failure to use reasonable care to reduce or eliminate the risk was the proximate cause of [Al-Dahwa’s] injuries.
According to Federal Rule of Evidence 702, expert testimony will be allowed if: “(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.”
“AMC does not challenge English’s qualifications. Nonetheless, I briefly recount English’s credentials: English is a licensed Professional Engineer, holding a B.S. in Industrial Engineering with a specialty in Systems Safety Engineering and an M.S. in Safety Engineering from Texas A&M University. English has also completed post-graduate coursework in the Department of Architecture at Texas A&M, focusing on the evaluation and design of means of egress components. He is a member of the American Society of Safety Professionals, Human Factors and Ergonomics Society, National Safety Council and International Code Council.” Edison said.
“Since 1999, English has worked as a professional engineering consultant, primarily consulting in the field of safety engineering, including workplace safety, premises safety, product safety, safety management and human factors/ergonomics. He also serves on several safety standard development committees for the American Society of Testing and Materials International.”
AMC seeks to exclude English’s testimony on the ground that his opinions “will not assist the jury in deciding the premises liability issues in dispute.”
“In my view, the subjects that English intends to address at trial are directly relevant to the elements of Al-Dahwa’s premises liability claim. By way of example, English plans on testifying that pedestrians, like Al-Dahwa, frequently fail to see hazards in front of them as they walk. This opinion, which English bases on published human factors literature, is relevant to both the second element (whether the uneven surface on the walkway posed an unreasonable risk of harm) and the fourth element (proximate causation). English also intends to testify that the walkway where Al-Dahwa tripped and fell does not comply with the ADA, the TAS and other applicable safety codes. This testimony is relevant to the third element of a premises liability claim – whether AMC failed to take reasonable case to reduce or eliminate the risk,” Edison stated.
“Along those same lines, ‘English’s opinion regarding whether [AMC] complied with its duties to reasonably reduce or eliminate the risk of harm presented by [an unlevel walking surface] is directly relevant to an essential element of [Al-Dahwa]’s premises liability claim’ – that is, the third element. Similarly, English’s proposed testimony that AMC should have ‘establish[ed] and implement[ed] a proper safety program to identify, evaluate and correct hazards with the reasonable potential to cause serious injury’ also addresses the third element. All in all, English’s opinions in this case are appropriate for a jury to hear. Defense counsel will be given the opportunity to skillfully cross-examine English, and the ultimate weight to be given to English’s testimony will be left to the 12 men and women on the jury.”
Edison also denied that English’s testimony would be “unfairly prejudicial.”
“As a final matter, AMC argues that English’s testimony should be excluded under Federal Rule of Evidence 403 because it ‘would unfairly prejudice [AMC], confuse the issues, mislead the jury, and improperly bolster [Al-Dahwa’s] liability position.’ In taking this stance, AMC is simply trying to recast its arguments concerning the reliability and relevance of English’s opinion through the lens of Rule 403. I have already flatly rejected those arguments,” Edison said.
“Although I possess broad discretion to exclude unfairly prejudicial expert testimony under Rule 403, even if relevant, when an expert’s opinion satisfies the reliability and relevance standards of Rule 702, an expert should generally be permitted to offer that opinion to the trier of fact. Rarely, if ever, should an expert witness be precluded from testifying at trial under Rule 403 solely because there is a concern that the jury will give undue credence to the expert’s opinion. Accordingly, I will not use Rule 403 as a basis to exclude English’s testimony.”
The plaintiff is represented by Chad Devin Points and Anthony Max Denena of Denena & Points, in Bellaire.
The defendant is represented by Bruce Clifford Gaible and Michael DeScioli of Mehaffy Weber, in Houston.
U.S. District Court for the Southern District of Texas case 4:23-cv-02010
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com