Plaintiff sued defendant after tripping over a hook protruding from a store display. Plaintiff hired a Store Operations & Retail Expert Witness to provide expert testimony. Defendant filed a motion to exclude. which was granted in part and denied in part by the court.
Facts: This case (Hawley v. Hannaford Bros. Co. LLC – United States District Court – District of Vermont – August 1st, 2018) involves a premises liability claim. The plaintiff alleges that her pant leg caught on a wire hook protruding from a store display, which caused her to fall and fracture her hip. The parties are in dispute whether the wire hooks on the end of the rack were protruding into the aisle. The plaintiff hired Jerry Birnbach (Store Operations & Retail Expert Witness) to provide testimony. The defendant has filed a motion to exclude the expert witness testimony of Mr. Birnbach.
Discussion: The plaintiff alleges that Mr. Birbach relied on his experience in retail display design in order in order to form his opinions about the safety of the spider racks and hooks. The defendant argues that Mr. Birnbach should be disqualified from offering expert witness testimony because he has not seen a spider rack with hooks prior to this case. The court states that Mr. Birnbach owns a consulting business specializing in retail design and display, and that his previous clients include Macy’s, Walmart, Kmart, and numerous other stores. In addition, Mr. Birnbach has been an expert witness in over eighty cases, some of which involved supermarkets and displays. Thus, the court opines that Mr. Birnbach is qualified to offer expert witness testimony in this case.
The defendant claims that Mr. Birnbach should not be allowed to opine that the display rack presented a forseeable hazard as the jury can reach that conclusion without the help of an expert. Mr. Birnbach opines that the defendant should have known that the hooks posed a foreseeable risk because they could cause a customer to trip. In addition, he notes that the danger and hazard caused by the hooks was not obvious to the customer. The court agrees with the defendant, opining that these opinions tell the jury what result to reach and thus excludes this portion of his testimony.
To be sure, the court opines that Mr. Birnbach’s opinion that the defendant should not have used the spider rack with hooks as a stand-alone display should be allowed. The court opines that Mr. Birnbach could assist the jury by drawing on his experience to access the subtle safety implications of using a stand-alone spider rack with hooks. The court notes that Mr. Birnbach provides reliable principles with sufficient facts for his opinion and will assist the jury in reaching a verdict. Thus, this part of his opinion will be allowed.
Conclusion: The motion to exclude the expert witness testimony of Mr. Jerry Birnbach is granted in part and denied in part.