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Gilmore v. Lowe's Home Centers, Inc.

United States District Court, Sixth Circuit

August 29, 2013



JOSEPH H. McKINLEY, Jr., Chief District Judge.

This matter is before this Court on Defendant Lowe's Home Center's ("Defendant" or "Lowe's") Daubert Motion Seeking Exclusion of Expert Testimony [DN 30] and Motion for Partial Summary Judgment [DN31]. Fully briefed, this matter is ripe for decision.


On July 4, 2010, Plaintiff Denise Gilmore alleges that she slipped and fell on a watering wand at Lowe's Home Center in Madisonville, Kentucky. Immediately following the incident, Plaintiff went to the emergency room where the treating physician determined that she had a sprained her ankle. While at the emergency room, Plaintiff received an x-ray of her foot, but the x-ray did not reveal any damage or tear to the ligament in the right foot.

On July 14, 2010, Plaintiff saw Dr. James Donley who treated her for a sprained calcanefibular ligament and posterior tibular tendinitis. Dr. Donley also ordered an MRI of Plaintiff's foot, which came back normal. At that time, Dr. Donley put her in a cast, and after her condition did not improve, Dr. Donley recommended a joint fusion surgery. Plaintiff did not see Dr. Donley again for her foot until December 26, 2012 when she visited his office for the purposes of obtaining an opinion for this litigation. During the December visit, Plaintiff, for the first time, informed Dr. Donley of the slip and fall at Lowe's and told him that she did not have pain in her foot until after that fall.

In between visits to Dr. Donley, Plaintiff also sought treatment from Dr. Alley. Dr. Alley ordered an MRI of Plaintiff's foot following the initial consultation October 14, 2011 which revealed a chronic tear of the spring ligament. As a result, Dr. Alley performed a joint fusion surgery on Plaintiff. In Dr. Alley's post-operative evaluation on February 7, 2012, Plaintiff complained of pain in her foot and Dr. Alley documented swelling of her foot. Dr. Alley concluded, based on his consultation with Plaintiff and observations of the right foot during the surgery, that the fall "exacerbated or aggravated" Plaintiff's pre-existing condition. (Mot. to Exclude Expert Testimony, DN 30-6, at 44).

Plaintiffs filed suit alleging negligence on the part of the Defendant. Defendants have moved to exclude the testimony Drs. Donley and Alley linking Plaintiff's fall at Lowe's with her torn ligament. Defendant also moves for partial summary judgment because there is no proof of causation.



Defendant seeks to exclude the testimony of Drs. Donley and Alley alleging in part that their testimony does not meet the standards of Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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.

Under Rule 702, the trial judge acts as a gatekeeper to ensure that expert evidence is both reliable and relevant. Mike's Train House, Inc. v. Lionel, L.L.C. , 472 F.3d 398, 407 (6th Cir. 2006) (citing Kumho Tire Co. v. Carmichael , 526 U.S. 137 (1999)). In determining whether testimony is reliable, the Court's focus "must be solely on principles and methodology, not on the conclusions that they generate." Daubert , 509 U.S. at 595. The Supreme Court identified a non-exhaustive list of factors that may help the Court in assessing the reliability of a proposed expert's opinion. These factors include: (1) whether a theory or technique can be or has been tested; (2) whether the theory has been subjected to peer review and publication; (3) whether the technique has a known or potential rate of error; and (4) whether the theory or technique enjoys "general acceptance" within a "relevant scientific community." Id. at 592-94. This gatekeeping role is not limited to expert testimony based on scientific knowledge, but instead extends to "all scientific, ' technical, ' or other specialized' matters" within the scope of Rule 702. Kumho Tire Co. , 526 U.S. at 147.

Whether the Court applies these factors to assess the reliability of an expert's testimony "depend[s] on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho Tire Co. , 526 U.S. at 150 (quotation omitted). Any weakness in the underlying factual basis bears on the weight, as opposed to admissibility, of the ...

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