The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LUZ QUERY AND LANCE QUERY * CIVIL ACTION NO. 24-2082
VERSUS * JUDGE ELDON E. FALLON
COSTCO WHOLESALE CORPORATION, * MAGISTRATE JUDGE
CARROLLTON CENTRAL PLAZA DONNA PHILLIPS CURRAULT
ASSOCIATION FEE OWNER, LLC, *
WARREN WASS, LANCE BUTCHER,
AND JEREMY MORTIZ *
* * * * * * *
ORDER & REASONS
Before the Court are two motions filed by Defendant Costco Wholesale Corporation
(“Costco”), one to exclude an expert proffered by Plaintiffs Luz Query and Lance Query, R.
Doc. 20, and one for summary judgment, R. Doc. 21. Plaintiffs oppose both motions. R. Docs.
23, 26. Defendant replied in support of each. R. Docs. 27, 28. Considering the record, briefing,
and applicable law, the Court now rules as follows.
I. BACKGROUND
This is a negligence case. According to the undisputed facts on the summary judgment
record, this incident occurred on October 15, 2022, during Plaintiffs’ shopping trip at the New
Orleans Costco. R. Doc. 21-2 at 1. Plaintiff Luz Query’s fall, which was captured in full by
Costco’s security cameras, occurred after she encountered a speed bump in the Costco parking
lot. Id. As a result of her injuries, Plaintiffs’ brought this negligence action premised on La. Civ.
Code arts. 2315, 2316, 2317, and 2317.1. Plaintiffs seek damages for Luz’s past and future
medicals, pain and suffering, mental anguish, and loss of enjoyment of life, and for Lance’s loss
of consortium. R. Doc. 1-2 at 6.
II. PRESENT MOTIONS
a. Defendant’s Motion to Exclude Plaintiffs’ Expert, Neil Hall
Defendant asks the Court to exclude Plaintiffs’ expert, Neil Hall, PhD, pursuant to
Daubert v. Merrell Dow Pharmaceuticals, Inc. R. Doc. 20. It argues that Dr. Hall’s report is not
reliable because his testing methods cannot be reproduced and he does not base his opinions on
applicable safety standards. R. Doc. 20-1 at 5–6. Costco also presses that Dr. Hall’s opinions are
not relevant and will not assist the trier of fact because Dr. Hall “offers no objectively verifiable
source or validation for his opinion that the speed bump was unsafe.” Id. at 6–8. This, Defendant
claims, makes his opinions conclusory and wholly his own, which is a task that any lay juror
could accomplish without specialized knowledge. Id. at 6–8.
Plaintiffs oppose the motion. R. Doc. 23. They recite notable aspects of Dr. Hall’s CV
that, in their eyes, makes him qualified to provide an expert opinion as to the relative safety of
the speed bump in question. Id. at 4–6. As to Defendant’s legal arguments, Plaintiffs press that
Dr. Hall is the kind of expert that fits more in the class of experts that fit into the Kumho Tire Co.
v. Carmichael framework rather than a more scientific-based expert contemplated in Daubert. Id.
at 7–8. Finally, Plaintiffs press that Defendant’s contention that Dr. Hall did not base his report
on an “objectively verifiable source” is a bare assertion that does not truly attack the wide
acceptance of and/or the utility of the ASTM. Id. at 8–9.
Defendant replied, largely contending that Plaintiffs failed to explain why Dr. Hall’s
opinions will assist the trier of fact by going beyond the common knowledge of the average
juror. R. Doc. 27.
b. Defendant’s Motion for Summary Judgment
Defendant also moves for summary judgment on all of Plaintiffs’ claims. R. Doc. 21.
Costco argues that Plaintiffs have no evidence that (1) the speed bump presented an unreasonable
risk of harm, or (2) Costco failed to exercise reasonable care. Id. First, as to the speed bump
being unreasonably dangerous, it presses that Louisiana courts have consistently found that
speed bumps are not dangerous and instead are normal hazards faced by all pedestrians. Id. at 4–
7. Because of this, Costco asserts that the only explanation for the accident is that Mrs. Query
was not acting as a prudent person using ordinary care in the circumstances by failing to observe
her surroundings. Id. at 7–8. It also contends that Dr. Hall’s report does not create a genuine
issue of material fact that the speed bump was unreasonably dangerous because the standards he
cites do not apply to these speed bumps, so his conclusions are irrelevant. Id. at 8–9.
Plaintiffs oppose the motion. R. Doc. 26. They cite Dr. Hall’s report in support of their
position that genuine issues of material fact exist as to whether the speed bump presented an
unreasonable risk of harm and whether Costco failed to exercise reasonable care. Id. Plaintiffs
reference photographs from Dr. Hall’s report—notably, aerial photos of the relevant speed bump
in 2020, 2022, and on the date of accident. Id. at 3-5. In 2020, the aerial photo shows that the
speed bump had yellow stripes; by 2022—and on the date of the accident—the speed bump did
not have any yellow stripes nor any other markings or colors that could help distinguish the
speed bump from the parking lot. Id. These photos in Dr. Hall’s report, Plaintiff submit, create
genuine issues of material facts as to both elements. Moreover, Plaintiffs aver that the testimony
of Defendant’s safety expert, Kevin Vanderbrook, also creates genuine issues of material fact on
both elements because he commented on the use of the ASTM and the use of and cost of
maintaining yellow striping. Id. at 8–9.
Defendant replied in support of its summary judgment motion. R. Doc. 28. It generally
reasserts its original arguments and further contends that the surveillance footage depicting the
incident shows that the speed bump was a much darker color than the parking lot pavement,
which “clearly establishes that the speed bump is not unreasonably dangerous.” Id. at 3. Costco
also cited Louisiana state court cases where courts found that unpainted wheel stops did not
present unreasonably dangerous conditions, arguing that this Court should apply the same logic
here. Id. at 3–4.
III. LEGAL STANDARD
a. Daubert/Kumho Motions
District courts have discretion to admit or exclude expert testimony under the Federal Rules
of Evidence. General Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). In Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the Supreme Court held that Rule 702 of the
Federal Rules of Evidence requires a district court to act as a gatekeeper to ensure that “any and all
scientific testimony or evidence admitted is not only relevant, but reliable.” The Supreme Court
extended Daubert’s applicability to experts who testify based on technical and specialized
knowledge, noting that Daubert’s gatekeeping requirement to ensure the reliability and relevancy of
expert testimony “is to make certain that an expert, whether basing testimony upon 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.” Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152 (1999).
Rule 702 of the Federal Rules of Evidence sets forth the framework governing the
admissibility of expert testimony. “The object of Rule 702 is to protect juries from unreliable and
irrelevant expert testimony.” In re Taxotere (Docetaxel) Prods. Liab. Litig., 26 F.4th 256, 268 (5th
Cir. 2022). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the proponent demonstrates to the court that it
is more likely than not that:
(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.
First, Rule 702 requires that an expert must be properly qualified. “[G]enerally, however, if
there is some reasonable indication of qualifications, the court may admit the expert’s testimony and
then leave to the jury the extent of those qualifications.” Urda v. Valmont Indus., Inc., 561 F. Supp.
3d 632, 638 (M.D. La. 2021).
Second, an expert’s testimony must be reliable. The reliability inquiry requires a court to
assess whether the reasoning or methodology underlying the expert’s testimony is valid. See
Daubert, 509 U.S. at 592–93; Kumho Tire, 526 U.S. at 152–53. In Daubert, the Supreme Court listed
several non-exclusive factors relevant to assessing reliability: (1) whether the theory has been tested;
(2) whether the theory has been subjected to peer review and publication; (3) the known or potential
rate of error; and (4) the general acceptance of the methodology in the scientific community.
Daubert, 509 U.S. at 593–95. However, a court’s evaluation of the reliability of expert testimony is
flexible because “[t]he factors identified in Daubert may or may not be pertinent in assessing
reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of
his testimony.” Kumho Tire, 526 U.S. at 150. The party offering the testimony must establish its
reliability by a preponderance of the evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276
(5th Cir. 1998).
Third, expert testimony must also be relevant. Testimony is relevant if the expert’s reasoning
and methodology “fits” the facts of the case and the testimony will assist the trier of fact to
understand the evidence. Daubert, 509 U.S. at 591. An expert’s testimony is not relevant and may be
excluded if it is directed to an issue that is “well within the common sense understanding of jurors
and requires no expert testimony.” Vogler v. Blackmore, 352 F.3d 150, 155 (5th Cir. 2003).
b. Motion for Summary Judgment
Summary judgment is proper when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must
view the evidence in the light most favorable to the nonmovant. Coleman v. Hous. Indep. Sch.
Dist., 113 F.3d 528, 533 (5th Cir. 1997). Initially, the movant bears the burden of presenting the
basis for the motion; that is, the absence of a genuine issue as to any material fact or facts.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to
come forward with specific facts showing there is a genuine dispute for trial. Fed. R. Civ. P.
56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). A fact is
“material” if its resolution in favor of one party may affect the outcome of the case. Saketkoo v.
Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 997 (5th Cir. 2022). “A dispute about a material fact
is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation
omitted).
IV. DISCUSSION
Defendant challenges the reliability and relevance of Plaintiffs’ safety expert and also the
presence of genuine issues of material fact for trial as to whether the speed bump presented an
unreasonable risk of harm and/or whether Costco failed to exercise reasonable care in
maintaining the speed bump. R. Docs. 20, 21. For the following reasons, the Court denies both
motions.
a. Plaintiffs’ Expert Will Not Be Excluded.
Costco contends that Neil Hall is an unreliable and irrelevant expert because (1) he relies
on an arguably inapplicable set of safety standards, the ASTM, to support his conclusions as to
the speed bump’s safety, and his testing methods cannot be replicated, and (2) his report will not
assist the trier of fact because the jury can make the same conclusions he reaches using their
common experience and knowledge. R. Doc. 20. The Court will take each argument in turn.
First, Defendants do not challenge the legitimacy of the ASTM standards nor their
general acceptance in the community as a reasonable set of standards upon which to base one’s
opinions. Indeed, as Plaintiffs pointed out in their summary judgment briefing, Defendant’s own
expert testified about the ASTM and its general acceptance. Specifically, he explained that
ASTM stands for “American Society of Testing and Materials,” and is “a body [of people] that
develop[] standards for hundreds of thousands of items that we use in every-day life.” R. Doc.
26-5 at 3. He described the ASTM standards as a “best practices standard” and testified that its
primary “purpose [is] to standardize things so that appliances all work in conjunction with each
other.” Id. at 3–4. He provided the example that he “think[s] certainly the fact that electrical
cords are standardized [through the ASTM] makes them safer in a way.” Id. at 3. Costco’s
expert’s testimony supports the idea that the ASTM is a reasonable standard for Dr. Hall to rely
upon in reaching his conclusions.
Defendant also argues that Dr. Hall’s opinions should be excluded because he does not
reference any other set of safety standards. But Defendant cites no case where a Court has
excluded an expert because they referenced only one widely accepted set of safety standards.
The Court will not exclude Dr. Hall on that basis. Costco also presses that the opinions are
irrelevant because the City of New Orleans does not require Costco to adhere to the ASTM
safety standards. That the City of New Orleans does not require Costco to have ASTM-
compliant speed bumps in its parking lots does not mean that the ASTM standards are
illegitimate, unaccepted in the broad community of experts, or are otherwise unfit to be
referenced as a standardized suggestion of recommended safety practices. Overall, the Court will
not exclude Dr. Hall because he relied upon the ASTM. Costco may challenge Dr. Hall’s
reliance on the ASTM standards on cross examination.
Second, Defendant suggests that Dr. Hall’s report does not rest on reliable principles and
methods because, for example, he did not perform any “testing.” But replicable tests, for
example, are not a black letter requirement under Rule 702 nor Daubert. The Supreme Court has
counseled that “Daubert’s list of specific factors neither necessarily nor exclusively applies to all
experts or in every case.” Kumho Tire, 526 U.S. at 141. The spirit of Rule 702 “is to make
certain that an expert, whether basing testimony upon 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.” Id. at 152. And, in any event, an expert’s report could
still be replicable if it is “the product of reliable principles.” Fed. R. Evid. 702(c) (emphasis
added). For example, and like Dr. Hall did here, an expert may observe an ASTM manual’s
recommendations for speed bump safety standards and, using his professional knowledge and
experience, state an opinion as to whether Costco observed those safety standards. See Fed. R.
Evid. 702(c). Defendant does not explain why these kinds of observations are not replicable or
widely accepted. Therefore, the Court will not exclude Dr. Hall’s report on this basis, either.
Third, Costco separately challenges the report as irrelevant because his proffered
observations are within the common experience and understanding of jurors. True, the common
juror is capable of observing a photograph of a speed bump and making their own determination
about its relative safety. But Dr. Hall’s testimony can add additional beneficial layers and,
importantly, “bring to the jury more than the lawyers can offer in argument.” In re Air Crash
Disaster at New Orleans, La., 795 F.2d 1230, 1233 (5th Cir. 1986). Here, because the ASTM
standards purportedly do not apply to Costco, Dr. Hall is in a unique position to explain the
benefits and risks of Costco deciding to follow the guidelines suggested in a general set of safety
standards, like those offered in the ASTM. This analysis can assist the jury in making its
determination, for example, of whether Costco—which, in at least 2020, did have ASTM-
recommended yellow striping on the speed bump—failed to exercise reasonable care by deciding
to not continue repainting the yellow stripes on the speed bump as they wore off. Dr. Hall’s
assistance to the trier of fact is further supported by his years of experience studying urban
planning, architecture, and as a licensed civil engineer, qualifications which he will rely on when
offering his opinions as to whether Costco should have taken more safety steps with respect to
their speed bumps. R. Doc. 20-3 at 12. The common juror would not possess the sort of
specialized safety knowledge that Dr. Hall brings to the table. The Court will not exclude Dr.
Hall as irrelevant and unhelpful to the trier of fact.
b. Genuine Issues of Material Fact Are Present on the Summary
Judgment Record.
Defendants move for summary judgment on all of Plaintiffs’ claims. Plaintiffs’ claims
sound in negligence under Louisiana Civil Code Articles 2315, 2317 and 2317.1. Under
Louisiana law, courts apply the same ultimate analysis to negligence claims, whether they arise
out of a defendant’s negligent conduct—La. Civ. Code art. 2315—or out of liability for defects
in premises—La. Civ. Code art. 2317 and 2317.1. Farrell v. Circle K. Stores, Inc., 359 So. 3d
467, 473 (La. 2023) (“Whether a claim arises in negligence under La. Civ. Code art. 2315 or in
premises liability under La. Civ. Code art. 2317.1, the traditional duty/risk analysis is the same.
And now, with La. Civ. Code art. 2317.1’s requirement of actual or constructive knowledge of a
defect, the result under either should be the same.”). Accordingly, a plaintiff asserting a premises
liability claim under Article 2315, or under Articles 2317 and 2317.1, must prove: “(1)
Defendant had custody of the area in question; (2) that the area contained a defect that created an
unreasonable risk of harm; (3) that the defect was the cause of the harm; and (4) the custodian of
the area knew or should have known of the defect.” Jones v. Town of Gueydan, No. 2021-11 (La.
App. 3 Cir. 6/16/21), 323 So. 3d 451, 453. To show constructive notice, the plaintiff “must prove
that the condition existed for such a period of time that it would have been discovered if the
merchant had exercised reasonable care.” Attaway v. Albertsons Inc., 174 F. App’x 240, 242 (5th
Cir. 2006).
Defendant contends that Plaintiffs have no evidence that the speed bump was
unreasonably dangerous or that Costco failed to exercise reasonable care. For the following
reasons, the Court finds that summary judgment is inappropriate.
i. Unreasonable Risk of Harm
Whether a condition presents an unreasonable risk of harm is a mixed question of fact
and law that, with the presence of genuine issues of material fact, should be determined by a
jury. E.g., Ford v. Dolgencorp LLC, No. 23-1384, 2024 WL 4554784, at *2 (W.D. La. Oct. 23,
2024) (citing Farrell, 359 So. 3d at 473–74). Courts assess whether a condition presents an
unreasonable risk of harm weighing the factors of the risk-utility balancing test: “(1) the utility of
the complained-of condition; (2) the likelihood and magnitude of harm, including the
obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the
nature of the plaintiff’s activities in terms of social utility or whether the activities were
dangerous by nature.” Farrell, 359 So. 3d at 473–74 (citation omitted).
First, reasonable minds could find that this particular speed bump had little social utility.
For example, Plaintiffs point to the photos of the speed bump in 2020 and 2022 from Dr. Hall’s
report, which show the speed bump positioned across a two-way intersection and in the middle
of the opening of a parking aisle. See, e.g., R. Doc. 20-3 at 5–6. Later, in January 2024, Costco
replaced the old speed bump with a new one that was moved several feet to the side and nearly
parallel with the edge of a concrete median that separates the parking aisles from the two-way
traveling lanes within the parking lot. See id. at 10. Reasonable jurors could disagree as to the
social utility of the speed bump’s location.
Second, reasonable minds could disagree as to whether there was a high likelihood of
harm and whether the speed bump was open and obvious. It is undisputed that the speed bump
did not have yellow stripes or any other painted-on color that could distinguish it from the
parking lot on the date of the incident. R. Doc. 21-2 at 1. Defendant presses, however, that the
surveillance footage and photos clearly show that the speed bump was a significantly darker
shade of gray than the parking lot pavement. But Defendant’s own expert testified that he agreed
that yellow striping on a speed bump would increase its visibility. R. Doc. 26-5 at 4. Moreover,
he further testified that he thinks a pedestrian’s ability to observe an unmarked speed bump
“would depend on a person’s eyesight, their approach angle, different things.” Id. at 3.
Considering the record evidence and the subjectivity of this inquiry, the Court finds that a
determination on this factor is better left to the trier of fact. The jury will be in the best position
to weigh the facts regarding the degree of harm and risk of injury in light of the lack of yellow
striping and purported contrasting shades of gray between the speed bump and the parking lot
pavement. See Farrell, 359 So. 3d at 474. This Court’s determination is further supported by the
Louisiana Supreme Court’s recent note that “whether a condition is open and obvious has been
applied differently and inconsistently in the jurisprudence.” Id. at 475. Thus, it is all the more
important that this determination be left to the jury.
Third, testimony in the record establishes that Costco had a few seemingly low-cost
alternatives that could have helped prevent Luz’s harm. For example, Plaintiffs point to the
testimony of Defendant’s safety expert, who stated that “I would think a gallon of paint [to
repaint the yellow striping] would be in the neighborhood of, you know, a hundred bucks or less,
and having someone paint it would be in the same ballpark.” R. Doc. 26-5 at 4. Thus, there is
record evidence creating fact issues on this factor.
Finally, the inquiry turns to consideration of the nature of the plaintiff’s activity in terms
of social utility or whether the activities were dangerous by nature. Both Plaintiffs were walking
in the Costco parking lot, with Lance pushing the cart and Luz following near him. See, e.g., 20-
3 at 7. Defendant does not attempt to suggest that Plaintiff Luz engaged in activities that could be
considered of low social utility or dangerous. Cf. DePedro v. State ex rel. Dep’t of Transp. &
Dev., No. 2024-0877 (La. App. 1 Cir. 7/3/25), 417 So. 3d 1061, 1095–96 (explaining that the
plaintiff’s actions weighed against him on this factor because he was driving a motorcycle very
quickly and was attempting to perform a passing maneuver in a no-passing zone). In any event,
the video evidence of the incident creates facts for the jury to assess the social utility and
dangerousness of Luz’s actions.
Altogether, the Court finds that the risk/utility analysis factors are pregnant with fact,
precluding the entry of summary judgment as to whether the speed bump was unreasonably
dangerous. The jury will need to weigh the evidence at trial.
ii. Failure to Exercise Reasonable Care
Defendant also contends that Plaintiffs do not have evidence that it failed to exercise
reasonable care in its upkeep of the speed bump. La. Civ. Code art. 2317.1 states: “The owner or
custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a
showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice,
or defect which caused the damage, that the damage could have been prevented by the exercise
of reasonable care, and that he failed to exercise such reasonable care.” Costco’s alleged failure
to exercise reasonable care is the “breach” element of the negligence claim. See Maraist,
Galligan, Church, & Corbett, La. Tort L. § 14.02 (perm. ed., rev. vol. 2026). Based on the
risk/utility analysis the Court conducted to determine whether the speed bump presented an
unreasonably dangerous condition, the Court finds that the same factual issues precluding
summary judgment on that element likewise preclude summary judgment as to whether Costco
breached any duty owed to Plaintiffs. See Carrier v. RPM Pizza Baton Rouge LLC, 672 F. Supp.
3d 211, 217–18 (W.D. La. 2023) (citing Boykin v. La. Transit Co., No. 96-1932 (La. 3/4/98), 707
So. 2d 1225, 1231) (“Whether there was a breach of the duty owed is a question of fact or a
mixed question of law and fact. Courts in Louisiana employ the risk/utility balancing test in
order to make this determination.”).
V. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Defendant’s motion to exclude Plaintiffs’ expert and motion for
summary judgment, R. Docs. 20 & 21, are DENIED.
New Orleans, Louisiana, this 4th day of May, 2026.
THE HONORABLE ELDON E. FALLON
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