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Woods v. Ross Dress For Less, Inc.

United States District Court, N.D. Oklahoma

September 11, 2019

ROSE WOODS, Plaintiff,
v.
ROSS DRESS FOR LESS, INC. a foreign Corporation; and MEGAN BUTLER, an individual,[1] Defendants,

          OPINION AND ORDER

          TERENCE C. KERN UNITED STATES DISTRICT JUDGE

         Before the court is the Motion to Strike Plaintiff's Expert, A. Cord Adams, filed by defendant Ross Dress for Less Inc. (“Ross”). Doc. 26. Plaintiff Rose Woods opposes the motion. Doc. 34.

         I. Background

         In this premises liability action, Plaintiff seeks damages for injuries she sustained when she tripped and fell outside the doors of a Ross store located at 1532 E. Hillside Drive in Broken Arrow, Oklahoma. At issue is the placement of a Ross “for hire” sign.

         Plaintiff has identified an expert, Addison Cord Adams (“Adams”) to offer testimony about the Broken Arrow City Ordinances, the International Building Code (“IBC”), and the International Property Maintenance Code (“IPMC”). Ross contends that Adams should not be permitted to testify because he is not qualified to testify as an expert in this case; his testimony is neither relevant nor reliable, and has no articulable basis; he should be precluded from testifying as to the applicable law; and his opinions would not be helpful to the jury and would invade the province of the jury.

         II. Applicable Law

         Rule 702 of the Federal Rules of Evidence 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.

         When an objection to an expert's testimony is raised, the court must perform Daubert gatekeeper duties before the jury is permitted to hear the evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999). A trial court's gatekeeper duty requires two separate inquiries: (1) the witness must be qualified to offer the opinions he is espousing and (2) the proponent of the witness bears the burden of proving by a preponderance of the evidence that its witness's opinions are both relevant and reliable. Kumho Tire, 526 U.S. at 141, 152. When the testimony of an expert is challenged, the proponent of the testimony bears the burden of establishing its admissibility. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc); Fed.R.Evid. 104(a).

         According to his Rule 26 Report, Adams intends to testify that the sign was a hazard that rendered the property dangerous, and that Ross knew or should have known of the danger, but failed to prevent ...


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