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United States District Court for the District of Maine
December 5, 2005, Decided
Civil No. 05-78-B-W
[*305] ORDER ON DEFENDANT WAL-MART STORES, INC.'S MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY
Because the opinions of Plaintiff's expert fail to satisfy the requirements of Federal Rule of Evidence 702 as interpreted in the Daubert trilogy, this Court GRANTS Defendant's motion in limine to exclude his testimony.
I. Facts and Procedural History
A. The Law Suit
On December 13, 2003, Plaintiff Kelli Brown was injured when she was hit by falling merchandise while walking down an aisle in Wal-Mart's Palmyra, Maine store. On May 6, 2005, Ms. Brown filed suit alleging negligence against Wal-Mart Stores, Inc. 1 in Maine Superior Court, Penobscot County. Pursuant to 28 U.S.C. §§ 1332 [**2] and 1441, the Defendants removed the action to this Court on May 19, 2005. On May 23, 2005, this Court issued a Scheduling Order, which required the plaintiff to "designate experts required to be disclosed by Fed. R. Civ. P. 26(a)(2)(A) . . . and . . . provide a complete statement of all opinions to be expressed and the basis and reasons therefore by: August 9, 2005." Scheduling Order, at 1-2 (Docket # 3).
B. The Expert Designation
By letter dated September 8, 2005, 2 Ms. Brown provided Wal-Mart with a report entitled "Preliminary Accident Investigation Report" from David Dodge, an engineer. Mr. Dodge's report reads in pertinent part:
The Matchbox trucks that fell and struck Ms. Brown were, at the time of her accident, improperly stored and displayed in that they were not stacked in a [*306] stable enough manner to withstand [**3] the foreseeable event of someone bumping the display shelving.
It is well to understand at this point that the display shelving is free standing in that it is fastened only to the floor and to no other structural building components. Therefore, the shelving is free to sway when a horizontal force is exerted on it and the amount of sway increases with the height of the shelving.
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402 F. Supp. 2d 303 *; 2005 U.S. Dist. LEXIS 31456 **
KELLI J. BROWN, Plaintiff, v. WAL-MART STORES, INC., et al., Defendants.
shelving, display, bumped, expert testimony, reliable, boxes, stored, top, in limine, methodology, customer, shelf, snap, merchandise, sway, expert opinion, stacking
Evidence, Admissibility, Expert Witnesses, Daubert Standard, Types of Evidence, Testimony, Expert Witnesses, Credibility of Witnesses, General Overview