Opinion

Bolin v. Lowe's Home Centers, LLC

Court
District Court, E.D. Louisiana
Filed
Apr 30, 2021
Cited by
0 cases
Authority
More cited than 22.3%

explaining that reliability is a fact- specific inquiry and application of Daubert factors depends on “nature of the issue at hand, the witness's particular expertise and the subject of the testimony”

How later courts described this case

  • explaining that reliability is a fact- specific inquiry and application of Daubert factors depends on “nature of the issue at hand, the witness's particular expertise and the subject of the testimony”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ERNESTINE BOLIN and CIVIL ACTION

ROBERT BOLIN

VERSUS NO. 19-11176

LOWE’S HOME CENTERS, L.L.C., SECTION: “G”

ET AL.

ORDER AND REASONS

In this litigation, Plaintiffs Ernestine Bolin (“Ms. Bolin”) and Robert Bolin (“Mr. Bolin”)

(collectively, “Plaintiffs”) bring suit against Lowe’s Home Centers, L.L.C. (Lowe’s), Stanley

Access Technologies, L.L.C. (“Stanley”), and DH Pace Company, Inc. (“DH Pace”) (collectively,

“Defendants”), alleging that Ms. Bolin was injured when automatic doors at a Lowe’s store in

Jefferson, Louisiana closed on her and caused her to fall.1 Before the Court are Stanley’s

“Daubert Motion in Limine,”2 DH Pace’s “Motion in Limine to Exclude Plaintiff’s Expert, Ruben

Urbina, Jr.,”3 Plaintiffs’ “Ex Parte Motion for Leave to File Supplemental Opposition to Daubert

Motion in Limine Filed by DH Pace Company, Inc.”4 and DH Pace’s “Motion to Strike Plaintiffs’

Supplemental Opposition Memorandum and Affidavit of Ruben Urbina.”5 Considering the

1 Rec. Doc. 1-4; Rec. Doc. 20.

2 Rec. Doc. 48.

3 Rec. Doc. 49.

4 Rec. Doc. 68.

5 Rec. Doc. 69.

motions, the memoranda in support and opposition, the record, and the applicable law, the Court

denies the two motions in limine, denies as moot the motion for leave to file a supplemental

opposition, and denies as moot the motion to strike.

I. Background

On April 22, 2019, Plaintiffs filed a complaint against Lowe’s and Stanley in the 24th

Judicial District Court for the Parish of Jefferson, State of Louisiana.6 On June 12, 2019,

Defendants removed the case to this Court asserting diversity jurisdiction pursuant to 28 U.S.C.

§ 1332.7 On December 18, 2019, Plaintiffs filed an amended complaint, adding DH Pace as a

defendant.8

In the Amended Complaint, Plaintiffs allege that they went to a Lowe’s store in Jefferson,

Louisiana on April 28, 2018.9 Plaintiffs claim that Ms. Bolin attempted to walk to Lowe’s outdoor

garden center through open automatic doors but that the doors closed as she was walking

through.10 Plaintiffs assert that the closing doors hit Ms. Bolin, causing her to fall and injure her

head and right hip.11 Plaintiffs allege that Ms. Bolin was taken by an ambulance to the emergency

room where it was determined that her hip was broken and needed to be replaced and that she

required several stitches on her head.12

Plaintiffs seek damages for Ms. Bolin’s physical injuries, pain and suffering, emotional

6 Rec. Doc. 1-4.

7 Rec. Doc. 1.

8 Rec. Doc. 20.

9 Id. at 2.

10 Id. at 3.

11 Id.

12 Id.

trauma, and loss of enjoyment of life, as well as Mr. Bolin’s loss of consortium and mental

anguish from witnessing the alleged incident.13 Plaintiffs bring claims against Lowe’s as the

alleged premises owner or lessee, Stanley as the company allegedly “responsible for the

manufacture and installation . . . of the automatic doors where Ms. Bolin fell,” and DH Pace as

the company allegedly responsible for the servicing of the automatic doors.14

On December 28, 2020, Stanley filed a motion to exclude Plaintiff’s expert, Ruben

Urbina.15 On the same day, DH Pace filed a motion to likewise exclude Mr. Urbina.16 On January

5, 2021, Plaintiffs filed an opposition to both motions.17 On January 20, 2021, with leave of Court,

DH Pace filed a reply in further support of its motion to exclude Mr. Urbina.18 On January 13,

2021, Plaintiffs filed an “Ex Parte Motion for Leave to File Supplemental Opposition to Daubert

Motion in Limine Filed by DH Pace Company, Inc.”19 On January 15, 2021, DH Pace filed a

“Motion to Strike Plaintiffs’ Supplemental Opposition Memorandum and Affidavit of Ruben

Urbina.”20 On February 2, 2021, Plaintiffs filed an opposition to the motion to strike.21 On

February 9, 2021, with leave of Court, DH Pace filed a reply in further support of the motion to

13 Id. at 7.

14 Id. at 3–7.

15 Rec. Doc. 48.

16 Rec. Doc. 49.

17 Rec. Doc. 55; Rec. Doc. 56.

18 Rec. Doc. 71.

19 Rec. Doc. 68.

20 Rec. Doc. 69.

21 Rec. Doc. 76.

strike.22

II. Parties’ Arguments

A. Stanley’s Motion to Exclude Mr. Urbina

1. Stanley’s Arguments in Support of the Motion

Stanley asserts that Ruben Urbina should be excluded from testifying as Plaintiffs’ expert

because Plaintiffs have failed to provide an adequate expert report as required by Federal Rules

of Evidence 702 and 703.23 Stanley alleges that Plaintiffs submitted a letter to Defendants on

behalf of Mr. Urbina, but argues that the letter does not constitute an expert report.24 Stanley

alleges that the letter “is not dated and is not signed” and “does not include any opinions and/or

conclusions.”25 Stanley further contends that Mr. Urbina lacks education and expertise in

automatic doors and sensors.26 In sum, Stanley argues that Mr. Urbina “does not possess

scientific, technical, or other specialized knowledge that will help the jury to understand the

evidence or to determine a fact in issue.”27

2. Plaintiffs’ Arguments in Opposition to the Motion

In opposition, Plaintiffs argue that “Stanley lacks any standing or interest in challenging

Plaintiff’s [sic] expert, Ruben Urbina . . . because Mr. Urbina’s conclusions mirror those of

Stanley’s own expert and do not, in any event, implicate Stanley in any way.”28 Plaintiffs contend

22 Rec. Doc. 79.

23 Rec. Doc. 48-1 at 1.

24 Id.

25 Id. at 2.

26 Id.

27 Id. at 3.

28 Rec. Doc. 55 at 1.

that Stanley “lacks any interest in seeking the relief it requests” because Mr. Urbina’s testimony

does not affect Plaintiffs’ claims against Stanley.29 Instead, Plaintiffs argue that Mr. Urbina’s

testimony confirms the testimony of Stanley’s own expert that DH Pace had improperly set the

automatic doors’ sensor.30

Plaintiffs further argue that Stanley has sufficient information on Mr. Urbina’s opinions

because Stanley deposed Mr. Urbina and because Plaintiffs now seek to attach a supplemental

report to their opposition.31 Plaintiffs contend that “any deficiencies” in the initial letter Plaintiffs

sent to Stanley concerning Mr. Urbina’s expert testimony “were surely remedied by his

deposition.”32 Moreover, Plaintiffs claim that Mr. Urbina’s report did provide conclusions,

namely that the sensor’s settings were improperly set.33

Finally, Plaintiffs argue that Mr. Urbina “is more than adequately qualified as an expert

on automatic doors.”34 Plaintiffs assert that Mr. Urbina has “over (13) years of experience

inspecting and serving automatic doors” and is a “Certified Inspector” at a “respected firm.”35

Plaintiffs argue that Mr. Urbina is not offered as “an expert in designing or manufacturing

automatic doors,” but instead as an expert in inspecting automatic doors.36

29 Id. at 6.

30 Id.

31 Id. at 5; Rec. Doc. 55-6.

32 Rec. Doc. 55 at 7.

33 Id.

34 Id.

35 Id. at 3.

36 Id. at 8.

B. DH Pace’s Motion to Exclude Mr. Urbina

1. DH Pace’s Arguments in Support of the Motion

Like Stanley, DH Pace argues that Mr. Urbina should be precluded from testifying as an

expert.37 DH Pace first argues that Mr. Urbina’s expert report is deficient under Federal Rule of

Civil Procedure 26(a)(2)(B).38 DH Pace claims that the report does not meet the requirements set

out in Rule 26(a)(2)(B) because the report (i) is not signed, (ii) fails to list the facts used by Mr.

Urbina in crafting his conclusions, and (iii) fails to provide any opinion “as to the negligence of

any particular defendant.”39

Second, DH Pace argues that Mr. Urbina is unqualified to testify under Federal Rule of

Evidence 702.40 DH Pace asserts that because “Mr. Urbina’s qualifications do not entail

engineering, design, or manufacturing,” he is unfit to testify as to whether the doors and the sensor

constituted an unreasonable risk of harm at the time of the alleged incident.41 DH Pace alleges

that “Mr. Urbina’s knowledge about the [doors’ sensor] is based solely upon the Stanguard

Manual” which “in itself, is self-explanatory” and therefore, “Mr. Urbina’s qualifications do not

give him any greater technical insight into the meaning of the manual . . . such that he can assist

the trier-of-fact in determining the relevant issues in the case.” 42

Third, DH Pace argues that Mr. Urbina’s opinions are “not based on sufficient facts or

37 Rec. Doc. 49.

38 Rec. Doc. 49-1 at 7.

39 Id. at 8.

40 Id.

41 Id. at 9.

42 Id.

data” and therefore fail to satisfy Federal Rule of Evidence 702(B).43 DH Pace alleges that Mr.

Urbina’s opinion was not based on measurements, notes, or the surveillance video of the day of

the alleged incident at Lowe’s.44 Without “precise measurements, notes about time delays,

photographs, and/or video,” DH Pace alleges, Mr. Urbina “will not be able to make any

connection between (1) the findings in his report/inspection and (2) the incident at issue in this

case.”45

Fourth, DH Pace claims that Mr. Urbina is unqualified to testify as an expert because he

utilized unreliable principles and methods in crafting his opinion.46 DH Pace argues that Mr.

Urbina has never previously testified as an expert and has not published articles on automatic

doors.47 DH Pace claims that “there is no detailed map, drawing, or other documentation” that

backs up Mr. Urbina’s opinion.48 Moreover, DH Pace alleges that Mr. Urbina can point to “no

reliable principle or method by which he could render an opinion as to causation for this

accident.”49

Fifth, and finally, DH Pace alleges that Mr. Urbina has not applied reliable principles or

methods to this case.50 DH Pace contends that Mr. Urbina did not review surveillance video from

Lowe’s on the day of the alleged incident, has failed to perform any testing of the sensor, and

43 Id. at 10.

44 Id.

45 Id.

46 Id. at 11.

47 Id.

48 Id.

49 Id. at 12.

50 Id.

failed to specify the standard he used in investigating the doors.51

2. Plaintiffs’ Arguments in Opposition to the Motion

Plaintiffs respond that Mr. Urbina’s expert report is sufficient under Federal Rule of Civil

Procedure 26(a)(2)(B).52 Plaintiffs concede that Mr. Urbina’s report had “minor deficiencies,”

including that the report was not signed and did not include specific measurements, but allege

that the errors are harmless and irrelevant because counsel for DH Pace was present when Mr.

Urbina carried out his inspection.53 Further, Plaintiffs argue that Mr. Urbina’s testimony is being

offered only on the issue of whether the automatic doors at Lowe’s were functioning properly

and therefore, Mr. Urbina was not required to inspect external documents or surveillance video.54

Next, Plaintiffs argue that Mr. Urbina is qualified to testify as an expert.55 Plaintiffs assert

that Mr. Urbina has been working as a certified inspector of automatic doors for 13 years.56

Plaintiffs point out that Mr. Urbina runs his own company which inspects doors for “major

clients.”57 Plaintiffs argue that Federal Rule of Evidence 702 does not require “any particular

level of education.”58 Further, Plaintiffs claim that Mr. Urbina’s testimony would be valuable to

a jury tasked with deciding whether or not DH Pace is liable for Ms. Bolin’s injuries.59

51 Id.

52 Rec. Doc. 56 at 8.

53 Id. at 9.

54 Id.

55 Id. at 10.

56 Id.

57 Id.

58 Id. at 11.

59 Id. at 11–12.

Third, Plaintiffs contend that Mr. Urbina’s opinion rests on reliable facts and data.60

Plaintiffs argue that Mr. Urbina is not required to provide “precise measurements” in support of

his opinion but instead allege that Mr. Urbina’s report, comprised of his “inspection sheet and a

brief summary of his findings,” is sufficient.61

Fourth, Plaintiffs claim that Mr. Urbina utilized reliable methods in forming his opinion.62

Plaintiffs contend that Mr. Urbina is not required to have testified previously as an expert witness

or to have published articles on automatic doors in order to qualify as Plaintiffs’ expert in the

instant litigation.63 Further, Plaintiffs claim that Mr. Urbina performed a standard inspection and

is not required to “lay out, with exacting particularity, every element” of the inspection in order

to show that his methods were reliable.64

Finally, Plaintiffs allege that Mr. Urbina reliably applied his methods to this case.65

Plaintiffs assert that “Mr. Urbina’s application of his methods to this case relate to performing a

proper inspection of the door and identifying the nature, scope, and source of any problems

therewith, not in reviewing unrelated factual evidence and rendering lay opinions that are

supposed to be left to the jury.”66 Plaintiffs claim that Mr. Urbina was not required to inspect the

automatic doors’ sensor itself because “his own observations demonstrated that such an analysis

60 Id. at 12.

61 Id.

62 Id. at 13.

63 Id.

64 Id.

65 Id. at 14.

66 Id.

was not necessary.”67

3. DH Pace’s Arguments in Further Support of the Motion

In reply, DH Pace argues that Mr. Urbina’s expert report has failed to make any

connection between his inspection of the automatic doors at Lowe’s and the cause of Ms. Bolin’s

injuries.68 DH Pace contends that Mr. Urbina’s opinion is irrelevant if he cannot explain “why

the motion sensor would not have picked up Ms. Bolin, how Ms. Bolin’s presence in the video

relates to the alleged blind spot that he identified, and therefore how his [] inspection related to

the accident at issue.”69 Without connecting his inspection to the facts of this case, DH Pace

argues, Mr. Urbina is not assisting a jury with his testimony.70 Therefore, DH Pace argues that

“the deficiencies in Mr. Urbina’s report are not mere technicalities cured by the deposition and

supplemental report, which brings forth nothing new” but “[i]nstead, Mr. Urbina’s lack of

specifics and failure to comment upon the accident at issue, during the expert discovery phase,

would amount to trial by ambush should he offer opinion testimony as to ‘cause-in-fact’ of Ms.

Bolin’s accident.”71

III. Legal Standard

The district court has considerable discretion to admit or exclude expert testimony under

Federal Rule of Evidence 702.72 Rule 702, which governs the admissibility of expert witness

67 Id.

68 Rec. Doc. 71 at 2.

69 Id. at 3.

70 Id. at 5.

71 Id. at 6.

72 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d

358, 371 (5th Cir. 2000).

testimony, provides that an expert witness “qualified . . . by knowledge, skill, experience, training

or education,” may testify when “scientific, technical or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue.”73 For the testimony to

be admissible, Rule 702 establishes the following requirements:

(1) the testimony [must be] based on sufficient facts or data,

(2) the testimony [must be] the product of reliable principles and methods, and

(3) the expert [must reliably apply] the principles and methods to the facts of the case.74

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that Rule 702

requires the district court to act as a “gatekeeper” to ensure that “any and all scientific evidence

admitted is not only relevant, but reliable.”75 The court’s gatekeeping function thus involves a

two-part inquiry into reliability and relevance. First, the court must determine whether the

proffered expert testimony is reliable. The party offering the testimony bears the burden of

establishing its reliability by a preponderance of the evidence.76 The reliability inquiry requires a

court to assess whether the reasoning or methodology underlying the expert’s testimony is valid.77

The aim is to exclude expert testimony based merely on subjective belief or unsupported

speculation.78

In Daubert, the Supreme Court identified a number of factors that are useful in analyzing

73 Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

74 Fed. R. Evid. 702.

75 Daubert, 509 U.S. at 597; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (clarifying

that the court’s gatekeeping function applies to all forms of expert testimony).

76 See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (citing In re Paoli R.R. Yard PCB

Litig., 35 F.3d 717 (3d Cir. 1994)).

77 See Daubert, 509 U.S. at 592–93.

78 See id. at 590.

reliability of an expert’s testimony: (1) whether the theory has been tested; (2) whether the theory

has been subject to peer review and publication; (3) any evaluation of known rates of error; (4)

whether standards and controls exist and have been maintained with respect to the technique; and

(5) general acceptance within the scientific community.79 In Kumho Tire Co. v. Carmichael, the

Supreme Court emphasized that the test of reliability is “flexible” and that Daubert’s list of

specific factors does not necessarily nor exclusively apply to every expert in every case.80 The

overarching goal “is to make certain that an expert, whether basing testimony on professional

studies or personal experience, employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.”81

The court must also determine whether the expert’s reasoning or methodology “fits” the

facts of the case and whether it will thereby assist the trier of fact to understand the evidence—in

other words, whether it is relevant.82 The Federal Rules of Evidence define “relevant evidence”

as “evidence having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.”83

A court’s role as a gatekeeper does not replace the traditional adversary system,84 and “[a]

review of the caselaw after Daubert shows that the rejection of expert testimony is the exception

79 See id. at 592–94.

80 Kumho Tire, 526 U.S. at 142; see also Seatrax, 200 F.3d at 372 (explaining that reliability is a fact-

specific inquiry and application of Daubert factors depends on “nature of the issue at hand, the witness's particular

expertise and the subject of the testimony”).

81 Kumho Tire, 526 U.S. at 152.

82 See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.

83 Fed. R. Evid. R. 401.

84 See Daubert, 509 U.S. at 596.

rather than the rule.”85 As the Supreme Court noted in Daubert, “[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible evidence.”86 “As a general rule,

questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned

that opinion rather than its admissibility.”87

IV. Analysis

In the instant motions, Stanley and DH Pace seek to exclude Mr. Urbina’s proposed

testimony for three main reasons: (i) Mr. Urbina is not qualified to testify as an expert under

Federal Rule of Evidence 702, (ii) Mr. Urbina’s proposed testimony is unreliable under Federal

Rule of Evidence 702, and (iii) Mr. Urbina’s report does not comport with the requirements of

Rule 26(a)(2)(B). The Court addresses each argument in turn.88

A. Whether Mr. Urbina is Qualified to Testify

Stanley and DH Pace both argue that Mr. Urbina is not qualified to testify under Federal

Rule of Evidence 702.89 Both put forth arguments surrounding Mr. Urbina’s lack of formal

postsecondary education and both assert that Mr. Urbina has never designed or manufactured

automatic doors.90 In response, Plaintiffs point to Mr. Urbina’s work as a certified inspector of

85 Fed. R. Evid. 702 advisory committee’s note, “2000 Amendments.”

86 Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

87 United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir.1996) (internal citations and quotation

marks omitted).

88 The Court notes that Plaintiffs attached a supplemental expert report to the opposition brief to both

Stanley’s Daubert motion and DH Pace’s Daubert motion. Rec. Doc. 55-6; Rec. Doc. 56-6. However, in

the supplemental report, Mr. Urbina appears to be offering essentially the same opinions as those provided

in his initial report.

89 See, e.g., Rec. Doc. 49-1 at 8; Rec. Doc. 48-1 at 2.

90 See, e.g., Rec. Doc. 49-1 at 9; Rec. Doc. 48-1 at 2.

automatic doors for over 13 years and his job running his own company that “is responsible for

inspecting and serving doors of major clients.”91 Plaintiffs contend that Mr. Urbina’s testimony

will assist the jury in understanding that “the settings on the doors were wrong, and but for that

improper setting, the doors would probably not have closed on Ms. Bolin.”92

Federal Rule of Evidence 702, which governs the admissibility of expert witness

testimony, provides that an expert witness “qualified . . . by knowledge, skill, experience, training

or education,” may testify when “scientific, technical or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue.”93 Rule 702 gives the

Court considerable discretion over the admission of expert testimony.94 “To qualify as an expert,

‘the witness must have such knowledge or experience in [his] field or calling as to make it appear

that his opinion or inference will probably aid the trier in his search for truth.’”95

Mr. Urbina is certified by the American Association of Automatic Door Manufacturers as

a “Certified Inspector of power-operated automatic pedestrian doors.”96 He began working in the

automatic door business in 2007 as a technician, servicing and installing automatic doors.97 In

2014, Mr. Urbina founded Automatic Access Solutions, which now employs five individuals.98

91 Rec. Doc. 56 at 10–11; Rec. Doc. 55 at 8.

92 Rec. Doc. 56 at 11.

93 Fed. R. Evid. 702; see also Daubert, 509 U.S. at 579.

94 See Suazo v. Atl. Sounding Co., No. 05-6043, 2009 WL 3254446, at *1 (E.D. La. Mar. 10, 2009) (Vance,

J.).

95 United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004) (quoting United States v. Bourgeois, 950 F.2d

980, 987 (5th Cir. 1992)), cert. denied, 546 U.S. 1089 (2006).

96 Rec. Doc. 56-3.

97 Rec. Doc. 56-4 at 9.

98 Id. at 17.

In his role as the head of Automatic Access Solutions, Mr. Urbina continues to service and install

automatic and manual doors.99

Mr. Urbina clearly has sufficient experience and knowledge in automatic doors to qualify

as an expert in the instant case. Plaintiffs plan to offer Mr. Urbina’s testimony on the issue of

whether or not the automatic doors at Lowe’s were functioning properly at the time of Ms. Bolin’s

alleged injuries.100 This issue is relevant to the litigation at hand and will be helpful to the jury,

and Mr. Urbina’s 13-plus years of experience servicing and installing automatic doors has

provided him with expertise in this field. To the extent that DH Pace and Stanley believe that Mr.

Urbina is not qualified to opine on the facts at issue in this matter, they may attack his conclusions

through “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction

on the burden of proof.”101 The Court therefore declines to exclude Mr. Urbina’s testimony on

the ground that he is not qualified as an expert.

B. Whether Mr. Urbina’s Proposed Testimony Is Reliable

Stanley and DH Pace raise numerous arguments in support of their claim that Mr. Urbina’s

opinions are unreliable under Federal Rule of Evidence 702. These arguments include: (i) Mr.

Urbina’s opinions are not based on sufficient facts or data, (ii) Mr. Urbina utilized unreliable

methods to form his opinion, and (iii) Mr. Urbina failed to reliably apply his methods to the facts

of the instant litigation.

As a general rule, “questions relating to the bases and sources of an expert’s opinion affect

the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s

99 Id.

100 See Rec. Doc. 56 at 11.

101 Daubert, 509 U.S. at 596 (citing Rock, 483 U.S. at 61).

consideration.”102 It is “the role of the adversarial system, not the court, to highlight weak

evidence.”103

The test of reliability is “flexible” and Daubert’s list of specific factors does not

necessarily nor exclusively apply to every expert in every case.104 In Kovaly v. Wal-Mart Stores

Texas, L.L.C., the Fifth Circuit acknowledged that, in considering the reliability of some

professionals, such as pharmacists, certain Daubert factors will not readily apply, and courts

“must consider other factors when determining admissibility, such as whether the expert has

enough education and relevant experience to reach a reliable opinion.”105 Therefore, the Fifth

Circuit “has upheld the admission of expert testimony where it was based on the expert’s

specialized knowledge, training, experience, and first-hand observation while supported by solid

evidence in the scientific community.”106

Here, Mr. Urbina relied on his specialized knowledge, sufficient facts, and reliable

methods in forming his opinion. Mr. Urbina went to the Lowe’s store and inspected the automatic

doors that Ms. Bolin alleges caused her injuries.107 His report appears to detail various steps of

his inspection, including adjusting the settings on the sensor and walking toward the doors from

102 14.38 Acres of Land, 80 F.3d at 1077.

103 Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 563 (5th Cir. 2004).

104 Kumho Tire, 526 U.S. at 142; see also Seatrax, 200 F.3d at 372 (explaining that reliability is a fact-

specific inquiry and application of Daubert factors depends on “nature of the issue at hand, the witness's

particular expertise and the subject of the testimony”).

105 627 F. App’x 288, 291 (5th Cir. 2015) (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir.

2002)).

106 Pipitone, 288 F.3d at 247.

107 Rec. Doc. 56-5.

various angles to ensure proper operation.108 This inspection was done based on Mr. Urbina’s

extensive experience with automatic doors and according to instructions laid out in the Stanguard

Manual. Moreover, Mr. Urbina inspected the doors as instructed by the American Association of

Automatic Door Manufacturers (“AADM”).109 Plaintiffs are offering Mr. Urbina’s testimony

solely for the issue of whether the automatic doors were functioning properly on the day of Ms.

Bolin’s alleged injuries, and Mr. Urbina’s report shows how he utilized inspection methods

prescribed by AADM and the Stanguard Manual to determine that the sensor’s settings “did not

cover the width of the opening as required.”110

DH Pace and Stanley remain free to argue to the jury, via cross-examination or competing

testimony, that Mr. Urbina’s report is based on insufficient facts. However, Rule 702 and the

Supreme Court’s ruling in Daubert suggest that “[v]igorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of proof,” rather than exclusion

altogether, “are the traditional and appropriate means of attacking shaky but admissible

evidence.”111 Therefore, the Court finds that Mr. Urbina’s report and testimony need not be

excluded on the ground that they are unreliable, and declines to exclude Mr. Urbina from

testifying as an expert witness.

C. Compliance with Rule 26(a)(2)(B)

DH Pace argues that Mr. Urbina’s report fails to meet the requirements of Federal Rule

108 Id.

109 Rec. Doc. 56 at 3.

110 Rec. Doc. 56-5.

111 Daubert, 509 U.S. at 596 (citing Rock, 483 U.S. at 61).

of Civil Procedure 26(a)(2)(B).112 Specifically, DH Pace alleges that the report: (1) is not signed,

(2) does not include any measurements or critical facts used in reaching the proffered conclusion,

and (3) fails to provide any opinion on the negligence of any defendant.113 In opposition, Plaintiffs

concede that the report was not signed but argue that this error was harmless.114 Plaintiffs contend

that the lack of specific measurements in Mr. Urbina’s report is irrelevant, as DH Pace was present

during Mr. Urbina’s inspection.115 Plaintiffs further argue that Mr. Urbina’s opinion is being

offered as to whether the automatic doors were operating properly on the day in question, not on

liability for the entire case.116

Federal Rule of Civil Procedure 26(a)(2)(B) states:

Unless otherwise stipulated or ordered by the court, [an expert] disclosure must be

accompanied by a written report--prepared and signed by the witness--if the

witness is one retained or specially employed to provide expert testimony in the

case or one whose duties as the party’s employee regularly involve giving expert

testimony. The report must contain:

(i) a complete statement of all opinions the witness will express and

the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications

authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years,

the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and

testimony in the case.

112 Rec. Doc.49-1 at 6.

113 Id. at 6–8.

114 Rec. Doc. 56 at 9.

115 Id.

116 Id. at 9–10.

“The expert report should be ‘detailed and complete,’ stating the testimony that will be presented

during direct examination and the reasons therefore.”117

As discussed above, Mr. Urbina’s report relies on sufficient facts and lists the steps he

took in carrying out his inspection and forming his conclusions. Moreover, Mr. Urbina provides

an opinion on the topic of his proposed testimony—the functioning of the automatic doors on the

day in question. While all parties agree that Mr. Urbina’s report is not signed,118 Mr. Urbina

testified during his deposition that he made the report following his inspection at the Lowe’s

store.119 Therefore, the Court will not exclude Mr. Urbina from testifying under Rule 26(a)(2)(B).

V. Conclusion

Considering the foregoing reasons, the Court denies Stanley and DH Pace’s motions to

exclude the testimony of Plaintiffs’ expert Ruben Urbina, Jr. Given that the Court declines to

exclude Mr. Urbina’s testimony based on the initial filings, it need not consider the supplemental

opposition and affidavit submitted by Plaintiffs. Accordingly,

IT IS HEREBY ORDERED that Stanley’s “Daubert Motion in Limine”120 and DH Pace’s

“Motion in Limine to Exclude Plaintiff’s Expert, Ruben Urbina, Jr.”121 are DENIED.

117 Honey-Love v. United States, 664 F. App’x 358, 361 (5th Cir. 2016) (citing Fed. R. Civ. P. 26 Advisory

Committee’s Notes (1993 Amendments).

118 Rec. Doc. 49-1 at 7; Rec. Doc. 48-1 at 2; Rec. Doc. 56 at 9.

119 See, e.g., Rec. Doc. 56-4 at 9–10, 13.

120 Rec. Doc. 48.

121 Rec. Doc. 49.

IT IS FURTHER ORDERED that Plaintiffs Ernestine Bolin and Robert Bolin’s “Ex Parte

Motion for Leave to File Supplemental Opposition to Daubert Motion in Limine Filed by DH

Pace Company, Inc.”!?? is DENIED AS MOOT.

IT IS FURTHER ORDERED that Defendant DH Pace’s “Motion to Strike Plaintiffs’

Supplemental Opposition Memorandum and Affidavit of Ruben Urbina!?? is DENIED AS

MOOT.

NEW ORLEANS, LOUISIANA, this 29th gay of April, 2021.

D "geaette \pbueite 05.

NANNETTE JOLPVETTE BROWN □ □□□

CHIEF JUDGE

UNITED STATES DISTRICT COURT

2 Rec. Doc. 68.

5 Rec. Doc. 69.

20

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.