Robinson v. American Multi-Cinema, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JOHN W. ROBINSON CIVIL ACTION

VERSUS NO. 20-946

AMERICAN MULTI-CINEMA, INC. SECTION: “G”

ORDER AND REASONS

In this litigation, Plaintiff John W. Robinson (“Plaintiff”) brings suit against American

Multi-Cinema, Inc. (“AMC”).1 Plaintiff alleges that he was injured after leaving an AMC movie

theater when his foot became caught on a bicycle rack, causing him to fall.2 Before the Court is

AMC’s “Daubert Motion and Motion in Limine to Limit Expert Testimony of Ladd P. Ehlinger.”3

Plaintiff opposes the motion.4 Considering the motion, the memoranda in support and opposition,

the arguments made at oral argument, the record, and the applicable law, the Court grants the

motion.

I. Background

On February 21, 2020, Plaintiff filed a petition against AMC in the 24th Judicial District

1 Rec. Doc. 1-2; Rec. Doc. 20-5. Plaintiff originally brought this suit against AMC and Kings Building

Maintenance, Inc. (“KBM”). However, on April 1, 2021, the Court granted KBM’s unopposed Motion for

Summary Judgment, thereby dismissing KBM from this case. Rec. Doc. 47.

2 Rec. Doc. 20-5 at 2.

3 Rec. Doc. 25.

4 Rec. Doc. 27.

Court for the Parish of Jefferson, State of Louisiana.5 On March 13, 2020, Plaintiff filed an

amended petition.6 On March 19, 2020, AMC removed the case to this Court, asserting diversity

jurisdiction pursuant to 28 U.S.C. § 1332.7

Plaintiff alleges that on March 15, 2019, he was exiting a movie theater owned by AMC.8

Plaintiff claims that he was walking on a sidewalk outside the theater when his foot became

caught on the base of a movable bicycle rack, causing him to fall.9 Plaintiff alleges that an AMC

employee had placed the bicycle rack directly behind a fixed bench which blocked the bicycle

rack from view.10 Plaintiff claims that as a result of his fall he suffered injuries to his shoulder

and back.11

Plaintiff alleges that AMC should be held liable because: (1) AMC placed the bicycle rack

behind the bench, creating a dangerous condition that led to Plaintiff’s injuries, or (2) AMC knew

or should have known that the placement of the bicycle rack behind the bench “presented a

foreseeable, unreasonable risk of harm.”12 Plaintiff seeks damages for pain and suffering,

emotional distress, mental anguish, medical expense, loss of enjoyment of life, and permanent

scarring.13

5 Rec. Doc. 1-2 at 3.

6 Rec. Doc. 20-5.

7 Rec. Doc. 1.

8 Rec. Doc. 20-5 at 1.

9 Id. at 2.

10 Id.

11 Rec. Doc. 1-2 at 5.

12 Rec. Doc. 20-5 at 2.

13 Rec. Doc. 1-2 at 5.

On March 9, 2021, AMC filed the instant Daubert motion to exclude the first conclusion

found in the report submitted by Plaintiff’s expert witness, Ladd Ehlinger (“Ehlinger”).14 On

March 16, 2021, Plaintiff filed an opposition to the Daubert motion.15 On March 23, 2021, with

leave of Court, AMC filed a reply in further support of the instant motion.16 On March 24, 2021,

the Court held oral argument on the instant Daubert motion.17

II. Parties’ Arguments

A. AMC’s Arguments in Support of the Daubert Motion

AMC seeks to exclude from Ehlinger’s report only his first conclusion, arguing that (i)

Ehlinger is unqualified to make the opinion, (ii) the opinion is an irrelevant human factors opinion

which will invade the purview of the jury as the information is within the common knowledge of

the average juror, and (iii) the opinion is not based on any objective or tested technique.18

Ehlinger’s first conclusion states:

When people are walking, they scan their environment visually with approximately

a 30 [degree] cone of vision (foveal vision), the rotational axis of which varies from

level to the horizon and parallel to the ground, to 5 [degrees] to 15 [degrees] down

vertically from level about the center of the walker’s eye. Because of this semi-

autonomous visual activity, objects in the foreground under the cone of vision may

not be seen, and thus stumbled upon or tripped upon by the walker. Warning signs,

a change of texture, additional lighting, and a change of color are some of the visual

devices that are used to call attention to a walker (in their peripheral vision) of a

stumbling or tripping hazard. None of these visual devices were present in the area

that day. More likely than not, Mr. Robinson didn’t see the protruding bicycle rack

support on the ground.19

14 Rec. Doc. 25.

15 Rec. Doc. 27.

16 Rec. Doc. 36-2.

17 Rec. Doc. 32.

18 Rec. Doc. 25-5.

19 Rec. Doc. 27-3 at 3.

AMC first contends that Ehlinger’s conclusion constitutes a human factors opinion, for

which Ehlinger is not qualified to testify.20 AMC claims that Ehlinger was offered by Plaintiff as

an expert in architecture, not in the field of human factors.21 AMC alleges that Ehlinger has never

testified in the field of human factors and that Ehlinger’s only training regarding the cone of

vision phenomenon came more than 60 years ago when Ehlinger was enrolled in college

courses.22 AMC asserts that Ehlinger is not a “doctor or medical professional” and has “no

background or credentials to offer opinions about all persons’ visual activity.”23 AMC further

claims that Ehlinger “has never interviewed or spoken to Plaintiff, nor did he have Plaintiff’s

deposition at the time he rendered his report.”24

AMC further alleges that Ehlinger’s human factors opinion is unreliable.25 AMC claims

that Ehlinger’s opinion is “not based on an objective or tested theory or technique” and appears

to lack any peer review.26 AMC contends that in forming his opinion, Ehlinger relied solely on

one website, www.hazardcontrol.com, a site whose information has not been “peer reviewed or

independently vetted.”27 AMC claims that Ehlinger provides nothing in support of his

conclusions concerning whether Plaintiff could or should have seen the bicycle rack behind the

20 Rec. Doc. 25-5 at 3.

21 Id. at 3–4.

22 Id. at 4.

23 Id.

24 Id. at 5.

25 Id.

26 Id. at 6.

27 Id.

bench.28

Finally, AMC alleges that Ehlinger’s human factors opinion is irrelevant.29 AMC contends

that such opinions will not be useful to the jury because Ehlinger’s conclusion is within the

common knowledge of the jurors and Ehlinger’s proposed testimony will not “better aid their

analysis.”30 Therefore, AMC argues that the first conclusion listed on Ehlinger’s report should be

excluded.31

B. Plaintiff’s Arguments in Opposition to the Daubert Motion

Plaintiff counters that Ehlinger is qualified to testify regarding human factors.32 Plaintiff

points to the following facts to show Ehlinger’s qualifications: (i) Ehlinger’s Bachelor of

Architecture degree in 1964; (ii) Ehlinger’s career as a licensed architect in Louisiana starting in

1965; (iii) Ehlinger’s architecture licenses in Alabama, Arkansas, California, Florida, Mississippi,

and Texas; (iv) Ehlinger’s memberships in numerous professional associations; and (v)

Ehlinger’s continuing education coursework.33 Plaintiff claims that Ehlinger’s extensive

background in architecture qualifies him to testify as to human factors because the fields of

architecture and human factors overlap.34 Plaintiff alleges that Ehlinger has “spent the last fifty-

five years designing spaces with human factors involving human movement though [sic] the

28 Id.

29 Id.

30 Id. at 7.

31 Id. at 8.

32 Rec. Doc. 27 at 3.

33 Id. at 4.

34 Id.

spaces at the forefront of this process.”35 Therefore, Plaintiff contends that Ehlinger is qualified

to opine on the human factors present in the instant case.36

Plaintiff further argues that Ehlinger’s opinion is reliable.37 Plaintiff contends that

Ehlinger relied on “extensive case materials” in reaching his opinion.38 Plaintiff claims that the

website cited by AMC, www.hazardcontrol.com, was attached to Ehlinger’s report “simply to

illustrate the cone of vision phenomenon that contributes” to Ehlinger’s opinion, and Plaintiff

clarifies that the article “did not form the basis of Mr. Ehlinger’s methodology.39 Plaintiff

contends that any challenges made by AMC to the reliability of Ehlinger’s testimony on human

factors should only affect the weight given to the testimony, not its admissibility.40

Finally, Plaintiff alleges that Ehlinger’s opinion regarding human factors is relevant.41

Plaintiff concedes that courts have previously excluded testimony from human factors experts

specifically concerning the adequacy of warnings but argues that Ehlinger’s conclusion touches

instead on the lack of warning signs at the location of Plaintiff’s injuries, “an entirely different

analysis that falls squarely within Mr. Ehlinger’s expertise as an architect, not within the common

experience of the average juror.”42

35 Id.

36 Id.

37 Id. at 5.

38 Id.

39 Id.

40 Id.

41 Id. at 6.

42 Id. at 6–8.

C. AMC’s Arguments in Further Support of the Daubert Motion

In reply, AMC reiterates that Ehlinger is not qualified to testify regarding human factors.43

AMC contends that Ehlinger “does not hold himself out as a human factors expert” and argues

that “[s]imply because an issue comes up in an individual’s line of work does not make the witness

qualified to offer scientific, technical, or other specialized knowledge about that issue to a jury.”44

AMC next argues that Ehlinger’s conclusion is unreliable.45 AMC alleges that Ehlinger

fails to provide “any explanation of his methodology.”46 AMC claims that “Ehlinger’s human

factor[] opinion[] [is] not based on any objective or tested theory or technique; there is no

indication the opinion[] ha[s] been subjected to peer review and publication; there is no known

error rate; and there is nothing to show whether the theory or technique used to develop the

opinion is generally accepted within the relevant community.”47

Finally, AMC contends that Ehlinger’s conclusion is irrelevant.48 AMC again claims that

Ehlinger’s proposed testimony “invades the province of the jury, whose members have the

common understanding to determine whether a warning was needed in this case.”49 Thus, AMC

argues that Ehlinger’s testimony regarding human factors should be excluded.50

43 Rec. Doc. 36-2 at 1.

44 Id.

45 Id. at 2.

46 Id.

47 Id. at 3.

48 Id.

49 Id. at 4.

50 Id.

III. Legal Standard

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

Federal Rule of Evidence 702.51 Rule 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.”52 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.53

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.”54 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.55 The reliability inquiry requires a

court to assess whether the reasoning or methodology underlying the expert’s testimony is valid.56

51 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).

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

53 Fed. R. Evid. 702.

54 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).

55 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)).

56 See Daubert, 509 U.S. at 592–93.

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

speculation.57

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

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.58 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.59 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.”60

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.61 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

57 See id. at 590.

58 See id. at 592–94.

59 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”).

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

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

evidence.”62

A court’s role as a gatekeeper does not replace the traditional adversary system,63 and “[a]

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

rather than the rule.”64 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.”65 “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.”66

IV. Analysis

At oral argument, the parties agreed that Ehlinger would not testify as to the last sentence

of his first conclusion, specifically: “[m]ore likely than not, Mr. Robinson didn’t see the

protruding bicycle rack support on the ground.” However, AMC still seeks to exclude the

remainder of Ehlinger’s first conclusion. AMC contends that (i) Ehlinger is not qualified to testify

as to his first conclusion, (ii) Ehlinger did not rely on reliable methodology in forming his first

conclusion, and (iii) Ehlinger’s first conclusion is irrelevant. The Court addresses each argument

in turn.

A. Qualifications

AMC first argues that Ehlinger is unqualified to testify regarding human factors because

62 Fed. R. Evid. 401.

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

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

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

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

marks omitted).

Ehlinger’s experience and education is in architecture, not human factors.67 AMC points out that

Ehlinger is “not a doctor or a medical professional” and “has no background or credentials to

offer opinions about all person’s visual activity, and certainly no expertise to state precisely how

that Plaintiff visualizes objects as he walks.”68 AMC further asserts that Ehlinger “has never

interviewed or spoken to Plaintiff, nor did he have Plaintiff’s deposition at the time he rendered

his report.”69

In response, Plaintiff points to Ehlinger’s education and extensive professional career.70

Plaintiff contends that Ehlinger’s prior education and experience in architecture is directly

relevant to this case because of the “interplay of human factors with architecture.”71 Plaintiff

claims that Ehlinger “has received specialized education with regards to the cone of vision,”

including coursework during his freshman year of college.72

Ehlinger is qualified to testify as an architect. He is a registered architect in six states.73

He has a Bachelor of Architecture degree and is a member of multiple architecture-related

professional associations.74 He has worked as an architect for over five decades.75 In recent years,

Ehlinger has enrolled as a student in dozens of continuing education courses based in the field of

67 Rec. Doc. 25-5 at 3.

68 Id. at 4–5.

69 Id. at 5.

70 Rec. Doc. 27 at 4.

71 Id.

72 Id.

73 Rec. Doc. 27-1.

74 Id. at 1–2.

75 Id. at 9–10.

architecture.76 Additionally, Ehlinger has taught numerous continuing education courses on the

study of architecture.77 He has been accepted as an expert in architecture in three states, including

Louisiana, and in three federal courts.78 Ehlinger has acted in an expert capacity in over 150

cases.79

Despite this expertise in architecture, however, Plaintiff has failed to show that Ehlinger

is qualified to testify regarding human factors. While Plaintiff points to coursework Ehlinger

completed his freshman year of college as proof of his qualifications, Ehlinger graduated from

college in 1964, over fifty-five years ago. Plaintiff fails to point to any recent training that would

be relevant to Ehlinger’s proposed testimony. Additionally, Ehlinger’s deposition testimony that

the study of architecture is necessarily intertwined with the study of human factors is unavailing.

While it may be true that “[a]rchitects deal with the design of spaces and the movement of people

through spaces,”80 this fact alone does not qualify Ehlinger to testify as to what people can or can

not see as they are walking, including: “[w]hen people are walking, they scan their environment

visually with approximately a 30 [degree] cone of vision (foveal vision), the rotational axis of

which varies from level to the horizon and parallel to the ground, to 5 [degrees] to 15 [degrees]

down vertically from level about the center of the walker’s eye” or “[b]ecause of this semi-

autonomous visual activity, objects in the foreground under the cone of vision may not be seen,

76 Id. at 2–7.

77 Id. at 8–9.

78 Id. at 10.

79 Rec. Doc. 27-2.

80 Rec. Doc. 27 at 4.

and thus stumbled upon or tripped upon by the walker.”81

Given that Ehlinger lacks the necessary qualifications to testify regarding his first

conclusion, this Court excludes the first conclusion on Ehlinger’s expert report.

B. Reliability

Alternatively, AMC claims that Ehlinger’s conclusion is unreliable.82 AMC contends that

Ehlinger’s only source for his opinions concerning visual activity is “a website called

www.hazardcontrol.com” for which “Ehlinger does not offer evidence that the statements on that

website have been peer reviewed or accepted by any authority, and Ehlinger offers no other

papers, studies or treatises to corroborate these findings that defines certain terms regarding

human vision during the walking process.”83 AMC contends that Ehlinger has “apparently done

no studies or analysis to confirm the information about a person’s visual activity.”84 AMC further

argues that Ehlinger has provided nothing in support of his opinions regarding the need for

warning signs.85 AMC asserts that Ehlinger “has never interviewed or spoken to Plaintiff, nor did

he have Plaintiff’s deposition at the time he rendered his report.”86

In opposition, Plaintiff argues that Ehlinger’s testimony is reliable. Plaintiff points to a

list of case materials reviewed by Ehlinger in forming his opinions.87 Plaintiff contends that

Ehlinger “formulated his opinions based upon his education, training, experience, review of the

81 Rec. Doc. 27-2.

82 Rec. Doc. 25-5.

83 Id. at 6.

84 Id.

85 Id.

86 Id. at 5.

87 Rec. Doc. 27 at 5.

case materials, and his site inspection” and asserts that there is “nothing unreliable about the

methodology that he used to formulate his opinions.”88 Plaintiff also clarifies that Ehlinger did

not rely on www.hazardcontrol.com, but simply provided the website to AMC “to illustrate the

cone of vision phenomenon.”89

Ehlinger has failed to provide any information on the methodology he utilized in crafting

his first conclusion. Plaintiff makes clear that Ehlinger did not rely on www.hazardcontrol.com.90

Instead, Plaintiff claims that Ehlinger “formulated his opinions based upon his education,

training, experience, review of the case materials, and his site inspection.”91 None of these alleged

bases, however, provide any insight into how Ehlinger formulated his first conclusion. Therefore,

the Court excludes Ehlinger’s first conclusion on the basis of unreliable methodology.

C. Relevance

Finally, AMC contends that Ehlinger’s first conclusion will not assist the jury because

“jurors have the knowledge and understanding to make appropriate findings on these issues, and

there is no expert opinion or testimony that will better aid their analysis.”92 In opposition, Plaintiff

alleges that Ehlinger’s conclusion “falls squarely within Mr. Ehlinger’s expertise as an architect,

not within the common experience of the average juror.”93

The Court agrees with AMC. If a jury can “adeptly assess [the] situation using only their

88 Id.

89 Id.

90 Id.

91 Id.

92 Rec. Doc. 25-5 at 7.

93 Rec. Doc. 27 at 8.

common experience and knowledge,” an expert’s testimony on the matter is unnecessary,

irrelevant, and should be excluded.” Practically speaking, a jury is capable of making the factual

determination of whether or not Plaintiff could see the bicycle rack behind the fixed bench prior

to his fall.?°

Therefore, because the jury “will not benefit” from Ehlinger’s first conclusion,”° the Court

excludes it as irrelevant.

Y. Conclusion

Considering the foregoing reasons,

IT IS HEREBY ORDERED that American Multi-Cinema, Inc.’s “Daubert Motion and

Motion in Limine to Limit Expert Testimony of Ladd P. Ehlinger’®’ is GRANTED. Any

testimony regarding the first conclusion listed on Ladd P. Ehlinger’s expert report is excluded.

NEW ORLEANS, LOUISIANA, thisl 1th day of May, 2021.

NANNETTE J pb BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

* Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990).

® See, e.g., Angelle v. Spartan Offshore Drilling LLC, No. 17-7707, 2019 WL 3451549, at *4 (E.D. La.

July 31, 2019) (Fallon, J.) (excluding expert testimony regarding whether there was sufficient lighting after

finding it “not relevant, helpful, or necessary.”); see also Thibodeaux v. Wellmate, No. 12-1375, 2016 WL

2962822, at *3 (E.D. La. May 23, 2016) (Morgan, J.) (“[t]he adequacy of the warning is a factual issue

which the jury can handle without expert help from either side.”). While Plaintiff argues that Ehlinger’s

opinion concerns the Jack of warning signs at the location of Plaintiff's accident and is therefore

distinguishable from cases in which courts have excluded expert testimony regarding the adequacy of

warnings, this argument is unavailing. The gist of Ehlinger’s conclusion is that because the area of Plaintiff’ □

fall lacked warning signs, AMC’s warning signs were inadequate to prevent Plaintiff’s fall. Thus, it is

indistinguishable from an opinion concerning the adequacy of warnings.

% See, e.g., In re FEMA Trailer Formaldehyde Prod. Liab. Litig., No. MDL 07-1873, 2009 WL 2169224,

at *4 (E.D. La. July 15, 2009).

97 Rec. Doc. 25.

15