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KENNETH E. SCHNUR v. KOHL'S DEPARTMENT STORES

November 29, 2010

KENNETH E. SCHNUR, SR. AND ELAINE M. SCHNUR, PLAINTIFFS,
v.
KOHL'S DEPARTMENT STORES, INC., DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

This is a negligence action arising out of injuries allegedly sustained after Plaintiff Kenneth Schnur tripped on an uneven sidewalk outside of a Kohl's Department Store. Plaintiffs filed their motion for summary judgment on the issues of liability and causation. Defendant Kohl's filed a cross-motion for summary judgment as to Plaintiff's Amended Complaint in its entirety. For the foregoing reasons, the parties' motions for summary judgment are denied.

I. PRELIMINARY ISSUES

A. Defendant's Motion to Bar Plaintiffs' Expert Michael J. Jedrzejewski

Defendant moves to bar the expert testimony of Michael J. Jedrzejewski ("Jedrzejewski"). Jedrzejewski was retained by Plaintiffs to give opinions regarding Defendant's compliance with relevant building codes. Jedrzejewski's report first concludes that the deviation in the sidewalk was approximately one inch, based on calculations and measurements taken from a photograph. Then, under the assumption that the deviation is approximately one inch, Jedrzejewski concludes that the condition did not meet various building codes.

The admission of expert testimony is governed by Federal Rule of Evidence 702. Pursuant to Rule 702, courts serve as gatekeepers in regard to admitting expert testimony and "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (applying Daubert to "technical" and "other specialized" knowledge in addition to scientific knowledge under Rule 702). "In analyzing the reliability of proposed expert testimony, the role of the court is to determine whether the expert is qualified in the relevant field and to examine the methodology the expert has used in reaching his conclusions." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000); see Kumho, 526 U.S. at 153. In addition, the court must decide whether expert testimony is relevant by determining "whether evidence or testimony assists the trier of fact in understanding the evidence or in determining a fact in issue." Cummins v. Lyle Indus., 93 F.3d 362, 368 (7th Cir. 1996).

Attacking the admissibility of Jedrzejewski's report, Defendant argues that Jedrzejewski lacks expert qualification, and that his report and opinions are not supported by sufficient facts, and are not products of reliable methodology.

1. Jedrzejewski Is Qualified as an Expert Only In Regard to Compliance with Building Codes Defendant challenges Jedrzejewski's qualification to testify as an expert for both his conclusion as to the actual height of the sidewalk deviation and as to compliance with various building codes. Under Rule 702, a witness may be qualified as an expert by "knowledge, skill, experience, training, or education." "Thus, a court should consider a proposed expert's full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area." Smith, 215 F.3d at 718.

Jedrzejewski has no formal training or education in the practice of determining heights based on analysis of a photograph. Although Jedrzejewski claims to have used this process at times in his practice since 1977, he has never consulted relevant literature or researched the science, and he does not hold himself out as an expert in this process. Jedrzejewski is therefore not qualified to testify as to the actual height of the deviation based on his analysis of a photograph, and, accordingly, his conclusion that the height of the deviation was approximately one inch is not admissible.

Jedrzejewski is, however, qualified as an expert as to compliance with building codes. He holds a bachelor's degree in architecture, is a licensed architect in Illinois and Wisconsin, and has over thirty years experience as an architectural investigator. While he does not have any specific training or certification in analyzing building codes, his training and experience in architecture are sufficient to qualify him as an expert in this regard, as it is not overly complex or technical and does not require a high degree of specialization.

2. Jedrzejewski's Application of the Building Codes Is Supported by Sufficient Facts or Data Defendant argues that if Jedrzejewski's conclusion as to the height of the walkway deviation is stricken, the rest of the report is inadmissible as unsupported by sufficient facts or data. However, under Daubert, testimony may be admissible if it "assists the trier of fact in understanding the evidence or in determining a fact in issue." Cummins v. Lyle Industries, 93

F.3d 362, 368 (7th Cir. 1996); Daubert, 509 U.S. at 591. Here, if the trier of fact concludes that the deviation was one inch, as Plaintiff testified in his deposition, or any length over 1/4 inch*fn1 ,

then Jedrzejewski's report would assist in determining compliance with the various building codes, so the report is relevant.

In addition, as the court in Smith emphasized, "the court's gatekeeping function focuses on an examination of the expert's methodology," while "[t]he soundness of the factual underpinnings of the expert's analysis and the correctness of the conclusions based on that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on summary judgment." 215 F.3d at 718. It therefore does not matter that there is other evidence which Jedrzejewski did not review that contradicts his assumption that the deviation was one inch. Defendant is free to submit evidence contradicting the underpinnings of the report, which may affect the consideration and weight given to Jedrzejewski's conclusions. See Walker v. Soo Line R.R. Co., 208 F.3d 581, 587 (7th Cir. 2000). However, Jedrzejewski's role is not to weigh and analyze evidence, but to testify as to compliance with building codes given a certain assumption. Because the trier of fact could conclude that the deviation was at least one inch, Jedrzejewski's opinion is sufficiently supported by facts to be relevant.

3. Jedrzejewski Used Appropriate Methodology in Applying the Building Codes Defendant finally argues that Jedrzejewski's report does not reflect sufficient methodology, and takes issue with the brief and conclusory nature of his findings. The object of a court's focus on an expert's methodology is "to make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."*fn2 Kumho, 526 U.S. at 152. Here, though, the proper methodology is simply applying the relevant building codes to the condition of the walkway to reach a conclusion as to compliance. Jedrzejewski identified relevant building codes, reached conclusions as to compliance based on his review of various materials, and gave the reasons, though briefly, for his conclusions. Again, ...


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