Written by Brian Cafritz, Esq.
Recently, in Robinette v. Wal-Mart Stores, Inc., Case 2:15-cv-00003, the USDC Western District of Virginia barred a Plaintiff’s forensic engineer from testifying as to the safety of a merchandising display. This decision has helped reinforce Virginia’s rule against the method theory of liability and has further bolstered recent decisions preventing experts from expressing opinions that are not based on industry standards.
In Robinette, a Plaintiff was injured when a kettlebell weight fell from a shelf onto the Plaintiff’s foot. The Plaintiff contended that Wal-Mart should have known of the dangers posed by displaying weights in this manner, and that the kettlebell shelf needed a guard railing to make it safe. Plaintiff’s expert opined that only a small amount of horizontal force was needed to tip over the kettlebell, and because there was no railing or other means to secure the kettlebells, the display was a “dangerous and defective” condition.
The Court granted the Defendant’s motion to strike this expert witness and ruled that he was simply not qualified to offer opinions on whether Wal-Mart’s merchandising practices were appropriate. The Court noted that the Plaintiff’s expert was a forensic engineer. He had no specialized training or professional experience in retail sales. His training was strictly limited to engineering. The Court acknowledged that the expert had some experience working on other falling merchandise cases, but his involvement in those prior cases had been limited to calculating the impact force of the falling merchandise, not determining the general stability or safety of retail displays. As the expert did not have any relevant retail experience, he could not offer any opinions as to the safety of merchandising displays.
The Court further noted that, after the expert had completed his initial report, he had visited other local sporting goods stores to review retail industry practices and bolster his opinion. However, the Court categorically refused to consider any of the observations that the expert had made on these visits because they were never considered in the expert’s original report. Thus, because the expert did not have the relevant retail experience at the time of his initial report, his entire opinion could be excluded.
At the end of its decision the Court explained that, even if the expert had been qualified to offer an opinion as to the safety of retail merchandising practices, his entire opinion would have been inadmissible as it was merely a restatement of the “method theory” of liability. In essence, the expert’s entire report attempted to argue that the manner in which Wal-Mart generally displayed its kettlebells was so dangerous that Wal-Mart should have known that kettlebells would generally be likely to fall. This kind of argument fails in Virginia, which has repeatedly rejected the Method Theory as a substitute for notice. Instead, for the Plaintiff to succeed, he would have had to show that Wal-Mart was aware of the precarious nature of this specific kettlebell.
Robinette is instructive in that it requires forensic experts to have specific retail knowledge to attack the safety of a retail display. An engineer cannot simply walk into court and state his personal opinion that he feels a display is unsafe. The opinion must be based on defined industry standards. Even then, the Plaintiff must produce evidence of notice of the specific condition.