Reversing Exclusion Of Helpful Expert Testimony

Eleventh Circuit remands for new trial based on exclusion of expert testimony about the choice of flooring in a negligence action; the proffered expert testimony was based upon a “reliable testing methodology” based on “the surface’s coefficient of friction”, in Rosenfeld v. Oceania Cruises, Inc., _ F.3d _ (11th Cir. Sept. 7, 2011) (No. 10-12651)

In general, expert testimony is permitted under FRE 702 where three requirements are met: The expert is qualified, the opinion is based on reliable methodologies, and the testimony would assist the jury. A recent Eleventh Circuit case considered the helpfulness requirement. See generally City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (noting three requirements: “(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.”).

In the case, passenger Rosenfeld was injured on a cruise ship after slipping and falling on ceramic tile near a buffet bar. She filed a diversity negligence action against the operator of the ship. Her negligence theory alleged that the operator failed “to provide an adequate flooring surface for the buffet area.” In support, she offered the testimony of a floor-safety expert “who performed various coefficient-of-friction tests to determine the slip resistance of the … flooring surfaces.” He concluded “that, under wet conditions, the ceramic-tile surface surrounding the Terrace Café had an inadequately low coefficient of friction.” He was prepared “to testify at trial that the flooring surface was not reasonably safe for a self-serve or bistro area, because it posed a high risk for those passing through the Café to slip and fall.” Rosenfeld, _ F.3d at _. The excluded the proffered expert testimony, explaining:

[Rosenfeld] . . . has not established that the proposed liability expert will provide helpful analysis to the Court in understanding a matter of scientific, technical or specialized expertise. Instead, the liability expert intends to testify that the floor where plaintiff fell is unreasonably safe for its intended use. Such conclusions are properly left for the Court or jury to decide.
The jury ruled in favor of the defendant. The plaintiff appealed, challenging the exclusion of the expert testimony.

The Eleventh Circuit reversed and remanded for a new trial. The circuit disagreed with the trial court that the expert testimony would not be helpful to the jury:

Rosenfeld’s principal theory of the case was that Oceania’s choice of ceramic tile flooring for the Terrace Café area was unreasonable, given Oceania’s knowledge that the area was heavily trafficked and susceptible to spills. A qualified expert who uses reliable testing methodology may testify as to the safety of a defendant’s choice of flooring, determined by the surface’s coefficient of friction. See, e.g., Great Am. Ins. Co. v. Cutrer, 298 F.2d 79, 80-81 (5th Cir. 1962) (noting that both the plaintiff and defendant presented expert evidence about the coefficient of friction on the steps and sidewalk where the plaintiff slipped and fell); see also Santos v. Posadas de Puerto Rico Assocs., Inc., 452 F.3d 59, 63–64 (1st Cir. 2006) (approving the admission of expert testimony regarding the variable friction between the pool steps and their edges on the grounds that it was crucial to the plaintiff’s theory of the case).
Rosenfeld, _ F.3d at _ (footnote omitted). The circuit noted that “matters of slip resistance and surface friction are ‘beyond the understanding and experience of the average lay citizen.’” Rosenfeld, _ F.3d at _ (quoting United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985)).

The defendant claimed the expert’s methodology was deficient. However, the circuit responded that challenges to methodology went to the weight of the evidence, not admissibility, and could be challenged by “vigorous cross-examination” and “presentation of contrary evidence” Rosenfeld, _ F.3d at _ (quoting Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1346 (11th Cir. 2003) (quoting Daubert[v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993)).

The error in excluding the expert testimony was not harmless since “the jury could not have found that the floor near the Terrace Café’s buffet was necessarily unsafe when wet” and therefore whether the “choice of ceramic-tile flooring caused Rosenfeld’s injuries.” Rosenfeld, _ F.3d at _ . The case was remanded for a new trial. The Rosenfeld case highlights the helpfulness requirement of FRE 702.

Federal Rules of Evidence