Client Advisory

Rachel S. Rubenstein, Matt Choi

In a recent decision, the Third Circuit reaffirmed that an expert’s testimony is inadmissible where it does not help the trier of fact by aiding or illuminating the facts beyond their ordinary understanding and that the party seeking to introduce the testimony bears the burden of establishing its admissibility.  The decision serves as a warning against parties seeking to introduce weak expert testimony to bolster their cases.

In Pataki v. Walmart, Plaintiff Pataki alleged that he was walking down the aisle in a Walmart store when he slipped and fell on a piece of clear plastic.  After falling, he stood up and briefly continued walking around the store, then eventually reported his injury to a store manager.  Pataki was then taken by ambulance to a local emergency room, where he was prescribed painkillers for back pain.

In the lead up to trial, Plaintiff’s counsel sought to introduce the testimony of a liability expert regarding the conditions he observed at the store on a visit two years after the alleged accident. The trial court granted Walmart’s motion in limine to exclude the expert’s testimony, reasoning that it did not offer any knowledge or opinion beyond the scope of an average juror. Ultimately, Walmart prevailed at trial, as the jury found that Pataki had failed to meet its burden. Pataki appealed.

The Third Circuit affirmed the trial court’s exclusion of the expert’s testimony, finding that it was not “helpful” within the meaning of Federal Rule of Evidence 702.  The Court observed that the expert did not provide insights beyond the ordinary understanding of the jury, who could review Defendant Walmart’s safety manual and video footage of the accident for themselves to determine if any of its policies were violated, without any assistance from an expert.

Similarly, the Court also observed that there was no basis for the jury to conclude that any conditions that the expert observed during his visit two years post-accident existed at the time of the accident. While Pataki contended that Walmart had failed to prove that the conditions were different, the Court observed that it is the party offering an expert’s testimony who bears the burden of establishing its admissibility. The Court also found that the expert’s proposed testimony as a whole, which Pataki offered as underscoring the importance of comparing industry standards with a retailer’s safety protocols, mentioned no specific industry standards and appeared instead to be based on his own review of Walmart’s safety manual, the video footage, and his site visit.

In light of the court’s ruling, defendants should consider moving to exclude plaintiffs’ liability experts where they make only vague references to non-specific industry standards.