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Beverly Porges v. Wal-Mart Stores

March 15, 2011

BEVERLY PORGES, PLAINTIFF,
v.
WAL-MART STORES, INC., D/B/A SAM'S CLUB, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Beverly Porges (Porges) filed suit against Wal-Mart Stores, doing business as Sam's Club (Sam's Club), alleging careless and negligent acts and omissions that led to her sustaining personal injuries when she tripped and fell on a floor mat in the store's entrance. After timely removing to this Court, Sam's Club moves to strike Porges's expert Gary Hutter's ("Hutter") report and bar him from testifying. Sam's Club also moves for summary judgment. For the following reasons, the Court grants Sam's Club's Motion to Strike Gary Hutter's Expert Report and Bar him from Testifying. The Court also grants Sam's Club's Motion for Summary Judgment.

STATEMENT OF UNDISPUTED FACTS*fn1

Porges was eighty-two years old on the afternoon of February 20, 2009, when she went to the Wheeling, IL Sam's Club to replace her membership card. (P 56.1 Resp. ¶ 5; P 56.1 Add. Facts Ex. 1.) It was a sunny day and Porges parked her car near the entrance and walked towards the store carrying only her purse. (P 56.1 Resp. ¶ 5.)

The entrance to this Sam's Club location had a first set of doors, followed by a vestibule area, and then a second set of doors. (Id.) The vestibule area had shopping carts along one side and large mats on the floor. (Id.) Two mats ran parallel to each other and perpendicular to the entrance doors and one mat ran parallel to the entrance doors. (Id. ¶ 10.) While Sam's Club does not have any written policies regarding when floor mats should be laid out in the store, they are generally placed whenever there is an accumulation of "any kind of wetness." (Id. ¶ 6.) This configuration of the vestibule mats-two parallel mats and one perpendicular one-make them more stable and flatter. (Id.)

At 1:37:47 p.m., before Porges entered the store, a male customer entered the Sam's Club. (Id. ¶ 10.) At the time he entered the store, the vestibule floor mats were flat on the ground without any curled up edges. (Id.) As he walked over the mats, however, he inadvertently kicked up the edge of the parallel floor mat and caused a portion of it to flip over itself. (Id.) The male customer looked down at the mat but continued walking without readjusting the floor mat. (Id.) Shortly after, three other customers walked into the vestibule area, but none of them walked over the upturned mat. (Id.) Two more customers then entered the store and walked over the floor mats without falling. (Id.)

Less than a minute after the male customer caused the mat to flip over itself, Porges entered the store at 1:38:24 p.m. (Id.) After passing through the first set of doors, she entered the vestibule area. (Id. ¶ 5.) Porges saw the Sam's Club People Greeter, Onkar Sharma ("Sharma") standing near the second set of doors just beyond the vestibule area. (Id.) Sharma was assisting other customers with a sales return. (Id. ¶ 8.) As Porges was walking through the vestibule, she tripped and fell on the upturned parallel floor mat that the male customer had inadvertently kicked up thirty-nine seconds earlier. (Id. ¶ 10.) Porges fell to the floor, landing on the front side of her body and face. (Id. ¶ 5.) Porges did not see that the floor mat was upturned before she tripped on it and fell. (Id.)

Sharma, who did not see Porges or the flipped up mat until after she fell, immediately went to assist Porges at 1:38:32 p.m. and help her stand up. (Id. ¶¶ 8, 10.) Sharma then flattened out the flipped up floor mat. (Id. ¶ 10.) Other customers came to Porges's aid as well and helped her to walk from the vestibule area into the store. (Id.) Once inside the store, a Sam's Club Assistant Manager, Catherine Hepner ("Hepner"), spoke to Porges. (Id.) An ambulance was called and picked Porges up. (Id.) At 1:40:00 p.m., Sharma rolled up and removed all of the floor mats from the vestibule area. (Id.)

Porges suffered a tear in her rotator cuff and two of her teeth were knocked loose as a result of her fall. ( P 56.1 Add. Facts Ex. 17-18.)

The events surrounding Porges's fall were caught on surveillance cameras. (P 56.1 Resp. ¶ 9.) The tape of the video surveillance is undisputed and accurately reflects the events described above, including the timing of the upturned floor mat and Porges's fall. (Id. ¶ 5.)

According to Store Manager Daniel Panknen ("Panknen"), no customers have ever fallen in the vestibule area of Sam's Club prior to Porges. (Id. ¶¶ 6-7.) Sharma, the greeter who is stationed near the vestibule area, has never seen anyone fall in the vestibule area. (Id. ¶ 8.) Hepner had never observed any customers causing the floor mat in the vestibule area to bunch up or flip over itself. (Id. ¶ 7.)

Hepner does not recall what the weather was like the day before Porges's fall, but she suspects that the floor mats could have been left from the night before.*fn2 ( P 56.1 Add. Facts Ex. 12.) Generally, the People Greeter at Sam's Club is responsible for placing the floor mats down but Sharma cannot recall who placed the mats down the day of Porges's fall. (Id. at 11.)

Porges filed suit in the Circuit Court of Cook County on May 26, 2009. Sam's Club timely removed to this Court on June 16, 2009.

STANDARD OF REVIEW

Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether a genuine issue of material fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. See Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chi. Sch. Reform Bd. Of Trs., 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("'Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'").

I. Motion to Strike

Sam's Club moves to strike Hutter's expert report and to bar him from testifying. Specifically, Sam's Club claims that Hutter's report and testimony are unreliable and would not aid the trier of fact.

The admissibility of scientific expert testimony is governed by Federal Rule of Evidence 702 ("Rule 702") and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). Rule 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702. Courts apply a three-step admissibility analysis for expert testimony under Rule 702 and Daubert. See Ervin, 492 F.3d at 904. First, "the witness must be qualified 'as an expert by knowledge, skill, experience, training, or education.'" Id. (quoting Fed. R. Evid. 702). Second, "the expert's reasoning or methodology underlying the testimony must be scientifically reliable." Id. (citing Daubert, 509 U.S. at 592-93). Courts, however, are granted "broad latitude when ...


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