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Burch v. Wells Fargo Bank, N.A.

United States District Court, D. Alaska

July 22, 2015

MARTHA BURCH, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

ORDER

SHARON L. GLEASON, District Judge.

Currently before the Court are Defendant Wells Fargo Bank, N.A.'s Motion to Strike Plaintiff's Expert Witness Jay R. Smith, P.E., at Docket 22, and Defendant's Motion for Summary Judgment, or, in the Alternative, Motion for Partial Summary Judgment on Punitive Damages Claim at Docket 24. Both motions have been fully briefed and oral argument on both motions was heard on May 1, 2015.

BACKGROUND

This case arises out of Plaintiff Martha Burch's slip and fall on a sidewalk adjacent to the Wells Fargo building in Palmer, Alaska, on January 12, 2013. Ms. Burch alleges that she "slipped and fell on an accumulation of ice which posed a hazardous condition that contributed as a substantial factor in legally causing injury to the plaintiff."[1] Ms. Burch alleges that Wells Fargo was "negligent for failure to take steps to make sure that the premises at 705 S. Bailey St. was safe, " and is "liable for negligent failure to warn of hazardous conditions, " "liable for negligent training and/or supervision, " and "liable for spoliation of evidence."[2] She seeks both compensatory and punitive damages.[3]

MOTION TO STRIKE

In its motion at Docket 22, Wells Fargo seeks to strike the report and testimony of Ms. Burch's expert witness, Jay R. Smith. Wells Fargo first asserts that Mr. Smith is not qualified to provide relevant expert opinion testimony. Wells Fargo contends that "Smith's qualifications as a professional engineer and automotive accident reconstructionist do not qualify him to provide testimony regarding the reasonableness of a commercial entity's snow and ice removal measures...."[4] Wells Fargo adds that "Smith also lacks any other specialized knowledge gained from experience in the field to qualify him as an expert in this case" and observes that Smith's consulting engineer work "focuses on automobile and industrial accident reconstruction, fire investigation, and defect examination.'"[5]

Wells Fargo also asserts that Mr. Smith's opinion, as expressed in his expert report, fails to satisfy the requirements of Evidence Rule 702. Wells Fargo maintains that Mr. Smith did not examine Ms. Burch's deposition testimony prior to preparing his report and, accordingly, did not base his opinion on sufficient facts or data.[6] Wells Fargo also asserts that Mr. Smith's review of "Best Practices' for snow and ice management" does not specify what materials he reviewed or whether he had ever reviewed or applied such practices in the past.[7] Wells Fargo further observes that Mr. Smith does not provide a basis for his opinion that the Dansko clogs that Ms. Burch was wearing at the time of the incident would have provided proper traction if there had been no ice coating on the sidewalk, nor does he indicate that he performed any testing performed in support of this opinion.[8] Finally, Wells Fargo asserts that "[w]ithout knowing what the mystery Best Practices' Smith relied upon in formulating his opinion entail, it is impossible to know if Smith reliably applied them to the facts and data of this case.... He has failed to reliably apply any methods or procedures (or even identify them) to an incomplete and insufficient set of record data."[9]

With her response, Ms. Burch submits an affidavit from Mr. Smith that expands upon his experience in reviewing snow removal procedures and in friction testing.[10] Ms. Burch relies on this additional background and explanation to assert that Mr. Smith is qualified to testify as an expert and that his analysis is reliable.[11]

In reply, Wells Fargo asserts that Mr. Smith's affidavit is "an untimely attempt to supplement his deficient and unsupported conclusory report and fill in the holes that Wells Fargo identified in its Motion to Strike."[12] Wells Fargo maintains that Mr. Smith's expanded background in his affidavit is still insufficient to qualify him as an expert.[13] Wells Fargo also argues that Mr. Smith's affidavit does not resolve the reliability problems identified in its motion. Wells Fargo states that the friction testing discussed in Mr. Smith's affidavit is irrelevant given that there is no reference to friction testing having been performed here.[14] Wells Fargo also states that Mr. Smith has still not provided the titles, authors, or other publication information about the "Best Practices" materials he has reviewed.[15]

A court "must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."[16] The inquiry is "flexible" and "the trial court must base its inquiry on the facts of each case."[17] When considering the admissibility of expert testimony, "there is less danger that a trial court will be unduly impressed by the expert's testimony or opinion' in a bench trial."[18] In this case, the Court will be the trier of fact and, having reviewed Mr. Smith's report, curriculum vitae, and supplemental affidavit, the Court will not strike Mr. Smith's opinion or testimony in its entirety at this time. However, both parties are apprised that the scope of direct examination for experts at trial will be restricted to the subject matter that has been fully disclosed in the expert's report, and if applicable, the expert's testimony by deposition or affidavit that clarifies or explains the report. In this regard, the Court finds that on the record before the Court, Ms. Burch has failed to adequately disclose to Wells Fargo the "Best Practices" to which Mr. Smith refers in his report. Based on the foregoing, Wells Fargo's Motion to Strike will be denied without prejudice to renew in whole or in part at trial.

MOTION FOR SUMMARY JUDGMENT

I. Jurisdiction

This Court has diversity jurisdiction over this matter pursuant to 28 ...


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