Neurology Expert Witness Allowed with Prejudice and Store Operations & Retail Expert Allowed in Part.

Plaintiff filed a negligence lawsuit against the Defendant.  Defendant hired a neurology expert witness and Plaintiff hired an store operations & retail expert witness.  Both parties filed motions to exclude.  The Plaintiff’s motion was denied with prejudice and the Defendant’s motion was granted in part and denied in part.

Facts:  This case (Patricia A. Sheetz v. Wal-Mart Stores, East, L.P. – United States District Court – Middle District of Pennsylvania – November 22nd, 2017) involves negligence allegations after the plaintiff (Sheetz) slipped and fell in the defendant’s (Wal-Mart) dressing room.  Sheetz alleges that she fell over a bench that should have been placed where it was.  Wal-Mart hired Dr. Richard I. Katz (neurology expert witness) and Sheetz hired Fred B. Hurvitz (store operations & retail expert witness) to assist in proving their respective cases.  Both parties have also filed motions to exclude the other party’s expert.

Discussion: Dr. Richard I Katz passed away after the motions to exclude his testimony were filed.  Wal-Mart thus retained Dr. Richard H. Bennett, Dr. Katz’s medical partner, as a replacement.  Both parties agreed that the motion to exclude Dr. Katz’s testimony is germane to that of Dr. Bennett.  The court disagreed, stating that the reports of Dr. Katz and Dr. Bennett are different from one another in the discussion of materials reviewed, the summation of findings, the way Sheetz medical history was discussed, and the ultimate conclusions.   The court thus denied the motion to exclude the expert testimony of Dr. Bennett without prejudice and the plaintiffs have the right to raise any objections at trial.

However, the court did state that Dr. Bennett is indisputably qualified to offer an opinion on this case, based on his expertise, training, and experience ad a neurologist.  In addition, Dr. Bennett will also be allowed to opine on the effects that Parkinsonism could have had on Sheetz’s motor functions.  But, the court opined that it questions Bennett’s opinion as to the precise cause of Sheetz’s fall.  The expert report does not show how Dr. Bennett’s expertise in Neurology enables him to rule out a placement of a bench of the potential cause of the fall.

Moving on to the other expert witness in this case, Wal-Mart has filed a motion to exclude the expert witness testimony of Fred Hurvitz.  Wal-Mart first argues that Mr. Hurvitz does not have the necessary qualifications to opine on the safety of Wal-Mart’s show department and the hazardous condition created by the shoe bench.  The court agreed with Wal-Mart. Mr. Hurvitz has a bachelor’s degree in Accounting, and a master’s in Business Administration, with a focus on marketing.  The court stated that even though he has an extensive retail marketing background, nothing in his curriculum vitae suggests that he has any safety retail experience.  However, the court stated that Mr. Hurvitz will be allowed to testofy on matters related to general merchandising strategies and practices.

The court also opined that Mr. Hurvitz’s testimony is not reliable.  He does not show what principles or methodology were used to come to his conclusions or how his experience and education form a basis for these opinions.

Conclusion:  The motion to exclude the expert witness testimy of Dr. Richard H. Bennett was denied without prejudice and Mr. Fred Hurvitz’s testimony was denied in part and granted in part.