Garcia Al-Dahwa v. American Multi-Cinema, Inc

UNITED STATES DISTRICT COURT July 11, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

GUADALUPE GARCIA AL-DAHWA, §

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Plaintiff. §

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V. § CIVIL ACTION NO. 4:23-cv-02010

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AMERICAN MULTI-CINEMA, INC., §

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Defendant. §

OPINION AND ORDER

Defendant American Multi-Cinema, Inc. (“AMC”) has filed a Motion to

Exclude and/or Limit the Testimony of Jason English (“Motion to Exclude”).

Dkt. 19. For the reasons detailed below, the Motion to Exclude is DENIED.

BACKGROUND

This is a premises liability case. Plaintiff Guadalupe Garcia Al-Dahwa (“Al-

Dahwa”) alleges she suffered personal injuries as the result of a trip-and-fall

accident in the parking lot of a movie theater owned by AMC. More specifically, Al-

Dahwa, who says she suffers from a physical disability, contends she tripped and

fell in a “designated walkway because the concrete in the walking area was cracked,

broken, and not level.” Dkt. 1-2 at 3. Al-Dahwa further alleges “[t]he walkway

designated for disabled individuals to utilize was unreasonably dangerous because

[AMC] failed to inspect, maintain and repair the area.” Id. According to the live

pleading, the walkway did not comply with the American with Disabilities Act

(“ADA”), the Texas Accessibility Standards (“TAS”), and other building codes

because of the jutting concrete, which resulted in an abrupt elevation change of the

walking surface. Al-Dahwa also avers that AMC failed to warn her of the dangerous

condition.

Al-Dahwa has designated Jason English (“English”) as a testifying expert

witness. The opinions English intends to offer in this case are set forth in a 20-page

expert report. See Dkt. 19-3. AMC summarizes those opinions as follows:

1. The principal causative factor related to [Al-Dahwa’s] fall was the

presence of an abrupt vertical rise and broken concrete disrepair in

the accessible route providing access to the disabled parking area,

creating an unreasonable hazard for pedestrians and individuals

using rolling devises [sic] such as wheelchairs, walkers, rollators,

etc.;

2. The presence of this fall hazard created an unreasonably dangerous

condition certain in time to produce incidents;

3. [AMC] knew or undeniably should have known of its responsibility

to exercise reasonable care to establish, monitor, and maintain the

exterior common area walkways of their premises reasonably free

of hazards likely to cause serious physical harm to persons present

on the property, and ultimately failed in its responsibility;

4. The area of disrepair should have been reasonably discovered by

[AMC] and timely corrected, and until such repairs could be made,

adequate warnings used to mark the hazard;

5. [AMC] failed to establish and/or properly implement an adequate

premises safety program to identify these types of hazards on its

property, or otherwise respond appropriately for the protection of

those on the property;

6. [AMC] knew or should have known of various codes, standards, and

other authoritative literature that recognizes fall hazards associated

with small abrupt changes in elevation in walkways; and

7. [AMC] failed to eliminate the fall hazard by timely correcting the

issue and warning of the issue until such repair could be

completed.

Dkt. 19 at 4–5.

AMC asks me to preclude English from testifying at trial for two reasons.

First, AMC insists that English’s proffered opinions will not help the jury

understand the evidence or determine a fact issue. Second, AMC argues that the

probative value of English’s opinions are substantially outweighed by the danger

of unfair prejudice, confusing the issues, and misleading the jury. Before I address

these arguments, I will briefly describe the applicable standards a district court

must consider when deciding whether to allow an expert witness to testify at trial.

LEGAL STANDARD

Federal Rule of Evidence 702 governs the admissibility of expert testimony

and reports. It provides that expert testimony will be allowed 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.

FED. R. EVID. 702.

District courts have “a gatekeeping role” in making determinations as to the

admissibility of expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 597 (1993). As a preliminary matter, a district court must determine

whether the proffered witness qualifies as an expert “by virtue of his knowledge,

skill, experience, training, or education.” United States v. Cooks, 589 F.3d 173, 179

(5th Cir. 2009) (quotation omitted). If the expert is qualified, the “overarching

concern” becomes “whether the testimony is relevant and reliable.” Puga v. RCX

Sols., Inc., 922 F.3d 285, 293 (5th Cir. 2019). To be reliable, expert testimony must

“be grounded in the methods and procedures of science and be more than

unsupported speculation or subjective belief.” Johnson v. Arkema, Inc., 685 F.3d

452, 459 (5th Cir. 2012) (cleaned up). To be relevant, “the expert’s reasoning or

methodology [must] be properly applied to the facts in issue.” Id. (quotation

omitted).

I possess broad discretion in deciding whether to admit expert testimony.

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). “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.” Puga, 922 F.3d at 294. A

district court’s role “is not to weigh the expert testimony to the point of supplanting

the jury’s fact-finding role—the court’s role is limited to ensuring that the evidence

in dispute is at least sufficiently reliable and relevant to the issue so that it is

appropriate for the jury’s consideration.” Id. As the United States Supreme Court

explained: “Vigorous 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.” Daubert, 509 U.S. at 596.

“While the district court must act as a gatekeeper to exclude all irrelevant and

unreliable expert testimony, ‘the rejection of expert testimony is the exception

rather than the rule.’” Puga, 922 F.3d at 294 (quoting FED. R. EVID. 702 advisory

committee’s note to 2000 amendment).

Finally, even if an expert is qualified and his opinions are relevant and

reliable, his testimony may still be excluded under Rule 403 “if its probative value

is substantially outweighed by a danger of . . . unfair prejudice.” FED. R. EVID. 403.

When an expert witness is called to testify, “a certain patina attaches to an expert’s

testimony unlike any other witness; this is ‘science,’ a professional’s judgment, the

jury may think, and give more credence to the testimony than it may deserve.”

United States v. Hines, 55 F. Supp. 2d 62, 64 (D. Mass. 1999). Thus, district courts

enjoy wide latitude when determining whether an expert’s testimony should be

admitted under Rule 403. See Daubert, 509 U.S. at 595 (“Because of this risk, the

judge in weighing possible prejudice against probative force under Rule

403 . . . exercises more control over experts than over lay witnesses.”).

ANALYSIS

To determine whether the Motion to Exclude should be granted, I must first

decide whether English is qualified to render opinions on premises safety and

safety engineering. Next, I must determine whether English’s opinions are reliable

and relevant to the issues in dispute in this case. If English is qualified and his

opinions are reliable and relevant, I must then address AMC’s contention that such

testimony’s probative value will nonetheless be substantially outweighed by the

danger of unfair prejudice.

A. ENGLISH’S QUALIFICATIONS

AMC does not challenge English’s qualifications. Nonetheless, I briefly

recount English’s credentials: English is a licensed Professional Engineer, holding

a B.S. in Industrial Engineering with a specialty in Systems Safety Engineering and

an M.S. in Safety Engineering from Texas A&M University. English has also

completed post-graduate coursework in the Department of Architecture at Texas

A&M , focusing on the evaluation and design of means of egress components. He

is a member of the American Society of Safety Professionals, Human Factors and

Ergonomics Society, National Safety Council, and International Code Council.

Since 1999, English has worked as a professional engineering consultant, primarily

consulting in the field of safety engineering, including workplace safety, premises

safety, product safety, safety management, and human factors/ergonomics. He

also serves on several safety standard development committees for the American

Society of Testing and Materials International.

The Fifth Circuit has held that “[a]s long as some reasonable indication of

qualifications is adduced, the court may admit the evidence without abdicating its

gate-keeping function. After that, qualifications become an issue for the trier of

fact rather than for the court in its gate-keeping capacity.” Rushing v. Kan. City S.

Ry. Co., 185 F.3d 496, 507 (5th Cir. 1999). Given English’s education and relevant

experience, there is some reasonable indication of English’s qualifications as a

retail safety expert.

B. RELIABILITY AND RELEVANCE OF ENGLISH’S OPINIONS

AMC seeks to exclude English’s testimony on the ground that his opinions

will not assist the jury in deciding the premises liability issues in dispute. To prevail

on her premises liability claim, Al-Dahwa must establish four elements:

(1) [AMC] had actual or constructive knowledge of the condition

causing the injury; (2) the condition posed an unreasonable risk of

harm; (3) [AMC] failed to take reasonable care to reduce or eliminate

the risk; and (4) [AMC]’s failure to use reasonable care to reduce or

eliminate the risk was the proximate cause of [Al-Dahwa’s] injuries.

Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014).

In AMC’s view, this is a relatively simple and straightforward case: Al-

Dahwa “contends that she tripped and fell over a clearly visible area of concrete

that was cracked and unlevel.” Dkt. 19 at 8. According to AMC, “[t]here are no

complex scientific or technical issues wherein the jury would need expert

assistance to understand the issues in this case.” Id. AMC adds:

Photographs of the concrete area in question where [Al-Dahwa] fell,

along with [Al-Dahwa]’s testimony regarding how the incident

occurred, will be available to the jury to view and consider. The jury

does not need expert testimony to explain what the evidence shows as

the jury has the common sense and knowledge to determine whether

the cracked and uneven concreate [sic] created an unreasonable risk

of harm, whether [AMC] knew or should have known that the

condition created an unreasonable risk of harm, whether [AMC] used

reasonable care to reduce or eliminate the risk, and whether such

condition proximately caused [Al-Dahwa]’s damages. As a result,

English’s opinions should be excluded in this matter.

Id.

In response, Al-Dahwa argues that English’s testimony will assist the jury

because his knowledge and experience on the issues relevant to the case are beyond

that of the average juror. It is Al-Dahwa’s contention that

[t]his case involves a trip and fall in an area governed by federal and

state regulations and industry-accepted and widely used standards for

safe walking surfaces in areas used by handicapped or mobility-

impaired invitees. . . . English’s knowledge and experience related to

the safety and accessibility codes applicable to where the incident

occurred, safety engineering, when and how falls occur on premises,

human visual characteristics while walking, walking surface

literature, and the specific testimony and documents in this case, are

beyond the common knowledge of the typical juror and will help the

trier of fact understand all the evidence the Court will task them with

digesting to determine the fact issues . . . in this case.

Dkt. 23 at 6–7.

In my view, the subjects that English intends to address at trial are directly

relevant to the elements of Al-Dahwa’s premises liability claim. By way of example,

English plans on testifying that pedestrians, like Al-Dahwa, frequently fail to see

hazards in front of them as they walk. This opinion, which English bases on

published human factors literature, is relevant to both the second element

(whether the uneven surface on the walkway posed an unreasonable risk of harm)

and the fourth element (proximate causation). See Manning v. Walgreen Co., 638

F. Supp. 3d 730, 735 (S.D. Tex. 2022) (permitting English to testify on human

visual characteristics in a trip-and-fall case stemming from a store’s parking lot).

English also intends to testify that the walkway where Al-Dahwa tripped and

fell does not comply with the ADA, the TAS, and other applicable safety codes. This

testimony is relevant to the third element of a premises liability claim—whether

AMC failed to take reasonable case to reduce or eliminate the risk. See Cohen v.

Landry’s Inc., 442 S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.] 2014, pet.

denied) (citing expert testimony that “[s]mall abrupt changes in elevation such as

that present in the exterior concrete walkway in this matter have long been

recognized in the codes, standards, and authoritative safety literature as

presenting a serious and unreasonable risk of pedestrian missteps and falls”).

Along those same lines, “English’s opinion regarding whether [AMC]

complied with its duties to reasonably reduce or eliminate the risk of harm

presented by [an unlevel walking surface] is directly relevant to an essential

element of [Al-Dahwa]’s premises liability claim”—that is, the third element.

Peterson v. HEB Grocery Co., No. 13-23-00205-cv, 2024 WL 1203892, at *9 (Tex.

App.—Corpus Christi–Edinburg Mar. 21, 2024, pet. filed). Similarly, English’s

proposed testimony that AMC should have “establish[ed] and implement[ed] a

proper safety program to identify, evaluate, and correct hazards with the

reasonable potential to cause serious injury” also addresses the third element. Dkt.

19-3 at 9.

All in all, English’s opinions in this case are appropriate for a jury to hear.

Defense counsel will be given the opportunity to skillfully cross-examine English,

and the ultimate weight to be given to English’s testimony will be left to the 12 men

and women on the jury.

C. ENGLISH’S TESTIMONY IS NOT UNFAIRLY PREJUDICIAL

As a final matter, AMC argues that English’s testimony should be excluded

under Rule 403 because it “would unfairly prejudice [AMC], confuse the issues,

mislead the jury, and improperly bolster [Al-Dahwa’s] liability position.” Dkt. 19

at 9. In taking this stance, AMC is simply trying to recast its arguments concerning

the reliability and relevance of English’s opinion through the lens of Rule 403. I

have already flatly rejected those arguments.

Although I possess broad discretion to exclude unfairly prejudicial expert

testimony under Rule 403, even if relevant, when an expert’s opinion satisfies the

reliability and relevance standards of Rule 702, an expert should generally be

permitted to offer that opinion to the trier of fact. Rarely, if ever, should an expert

witness be precluded from testifying at trial under Rule 403 solely because there is

a concern that the jury will give undue credence to the expert’s opinion. See

Hernandez v. City of Albuquerque, No. CIV 02-0333, 2004 WL 5522847, at *9

(D.N.M. Jan. 23, 2004) (“Once the proponent of an expert meets the threshold

requirements of expertise, reliability, relevance, and helpfulness, the Court should

generally admit the evidence. It is . . . difficult for the Court to find that testimony

will assist the trier of fact under Daubert because it is both relevant and reliable,

and then find the evidence is too prejudicial and will lead to jury confusion.”).

Accordingly, I will not use Rule 403 as a basis to exclude English’s testimony.

CONCLUSION

For the reasons discussed above, the Motion to Exclude is DENIED.

SIGNED this 11th day of July 2024.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE