Barnes v. Malinak

320 F.R.D. 130, 2017 U.S. Dist. LEXIS 127600, 2017 WL 3470927
CourtDistrict Court, E.D. Tennessee
DecidedAugust 11, 2017
DocketNo. 3:15-cv-556-PLR-HBG
StatusPublished
Cited by2 cases

This text of 320 F.R.D. 130 (Barnes v. Malinak) is published on Counsel Stack Legal Research, covering District Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnes v. Malinak, 320 F.R.D. 130, 2017 U.S. Dist. LEXIS 127600, 2017 WL 3470927 (E.D. Tenn. 2017).

Opinion

MEMORANDUM AND ORDER

H. Bruce Guyton, United States Magistrate Judge

This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

Now before the Court is Defendants Greg Malinak and Debbie Malinak’s Motion to Exclude the Testimony of Russell Kendzior as an Expert at Trial [Doc. 62] and Defendant Sidney James Motor Lodge, Inc., d/b/a/ Olde Gatlinburg Rentals’s Motion to Exclude Testimony of Russell J. Kendzior [Doc. 63]. The Plaintiffs have responded [Docs. 71 and 72] in opposition to the Motions, and Defendant Sidney James Motor Lodge, Inc., d/b/a/ Olde Gatlinburg Rentals, filed a Reply. [Doc. 80],

The parties appeared before the Court on July 12, 2017, for a motion hearing. Attorney Darren Berg appeared on behalf of the Plaintiffs. Attorney Mabem Wall appeared on behalf of Defendants Greg Malinak and Debbie Malinak (collectively, the “Malinaks”). Attorney Greg Brown appeared on behalf of Defendant Sidney James Motor Lodge, Inc., d/b/a/ Olde Gatlinburg Rentals (“Sidney”). During the hearing, the Defendants submitted the video deposition testimony of Russell Kendzior as an exhibit. The Defendants’ expert, John Lefler, testified at the hearing. Following the hearing, the Defendants filed Supplements [Docs. 90 and 92] to their Motions. The Court has considered all of the above filings and the experts’ testimonies presented at the hearing. Accordingly, for the reasons more fully explained below, the Court DENIES the Defendants’ Motions [Docs. 62 and 63],

I. BACKGROUND

The Plaintiffs filed their Complaint on December 16, 2016, [Doc. 1], and later amended the Complaint on May 19, 2016. [Doc. 17]. The Amended Complaint states that on April 9, 2016, the Plaintiffs rented a condominium at Olde Gatlinburg Place for a weekend vacation. [Id, at ¶ 7]. The Amended Complaint alleges that the Malinaks own the condominium and that Defendant Sidney cleans, manages, or otherwise maintains the units. [Id. at ¶¶ 9—10]. In addition, the Amended Complaint states that Defendant Sidney is the exclusive agent for renting and managing the unit in question. [Id. at ¶ 12].

The Amended Complaint alleges that on April 10, 2016, Plaintiff Phyllis Barnes entered the bathroom for the purpose of using the bath/shower, [Id. at ¶ 14]. She laid a cloth bath mat, which upon information and belief, was provided by the Defendants for use as a bath mat, on the tile floor in front of the bathtub. [Id. at ¶ 16], The Amended Complaint continues that the bath mat provided by the Defendants was made entirely of cloth, with no rubber backing or similar material that would prevent the bath mat from slipping on a tile floor. [Id. at ¶ 16]. In addition, the Amended Complaint states that upon information and belief, the Defendants cleaned/polished the floor of the bathroom using a substance that increased the slipperiness of the floor, thereby making the floor a latent danger when the cloth bath mat provided by the Defendants is placed on the floor and thereafter stepped on by someone exiting the shower. [Id. at ¶ 17]. The Amended Complaint states that Plaintiff Phyllis Barnes stepped out of the bath/shower, and she placed her left foot on the cloth bath mat. [Id. at ¶ 18], The bath mat suddenly, and without warning, slid across the bathroom floor, causing Plaintiff Phyllis Barnes to fall [133]*133and suffer severe injuries. [Id. at ¶ 19]. The Amended Complaint continues that the responding officer commented that the bathroom floor was very slippery. [/A].

The Amended Complaint alleges that the Defendants owed the Plaintiffs, as guests, a duty to provide a bath mat with backing material that would prevent slipping on the bathroom floor. [Id. at ¶ 20]. In addition, the Amended Complaint avers that the Defendants owed Plaintiffs a duty to clean and/or polish the bathroom floor utilizing substances that do not increase or otherwise contribute to the slipperiness of the floor. [Id. at ¶ 21]. The Amended Complaint alleges negligence, loss of consortium and loss of society. [Id. at ¶ 29],

The Plaintiffs obtained Russell Kendzior, with Traction Experts, Inc., [Doc. 62-1] to testify in this case. Kendzior opines that the Defendants breached the standard of care to provide the Plaintiffs with a bath mat that would not slip when used for exiting the bathtub. [Id, at 2]. Kendzior states that the Defendants failed to provide a suitable bath mat for the type of flooring that was in the condominium rented by the Plaintiffs. [Id.]. He further opines that bath towels are not bath mats and should not be used as such, [Id.]. He continues that bath towels do not have a slip resistant backing, and therefore, do not provide sufficient traction when placed on a smooth surfaced floor. [Id,]. Further, he states that the bath towel's design, construction, and lack of a slip resistant backing were insufficient to prevent the towel from slipping on the smooth surfaced floor as testified by the Plaintiffs. [Id.]. He concludes that Defendant Sidney breached the standard of care it owed to the Plaintiffs by not warning them of the risk of falling due to the slipperiness of the floor when combined with the use of the towel. [/A]. Finally, he states that had a proper bath mat been placed in the condominium for the Plaintiffs’ use, the bath mat would not have slipped when Plaintiff Phyllis Barnes stepped on it while getting out of the tub. [Id. at 3],

On May 15, 2017, Kendzior provided a supplemental report. [Doc. 71-2]. In his supplemental report, he stated that the test method that is used to determine the slip resistance of the floor matting is published by the National Floor Safety Institute (“NFSI”) 101-C “Test Method for Measuring Dry TCOF of Floor Mat Backing Materials.” [Doe. 71-2 at 3]. Kendzior stated that he tested the Transitional Coefficient of Friction (“TCOF”) on the exemplar bath mat per the NFSI 101-C test method and the test results revealed a dry TCOF value of .14, which is below the required minimum value of .5 to be considered a high-traction mat. [Id,], Kendz-ior states that given the low level of slip resistance or traction, the bath towel in question would increase the likelihood of sliding on a smooth surfaced floor. [Id.] Kendzior also opines that the Defendants should have provided at least one vertically mounted grab bar near the front critical support service wall for the bathtub/shower enclosure. [Id. at 1].

II. POSITIONS OF THE PARTIES

The Malinaks assert that Kendizor is not qualified to issue the opinions contained in his report or to testify regarding the conclusions he purports to have reached in this case. The Malinaks argue that Kendzior is a mathematician and not an engineer or architect. In addition, the Malinaks argue that he does not have any training in terry cloth towels or their use as bath mats. Further, they contend that Kendzior’s opinions and conclusions lack sufficient factual basis or scientific reliability to be admissible under the Federal Rules or Daubert. The Malinaks submit that his opinions regarding the floor (ie., the floor is slippery, the bath mat was inappropriate for the type of flooring, or that the mat slipped because of the type of flooring) are unreliable and irrelevant because he has not seen, examined, or inspected, or tested the flooring.

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Bluebook (online)
320 F.R.D. 130, 2017 U.S. Dist. LEXIS 127600, 2017 WL 3470927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-malinak-tned-2017.