FILED
United States Court of Appeals
Tenth Circuit
July 2, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
EMILY HATFIELD,
Plaintiff - Appellant,
No. 08-3233
v. (D.C. No. 5:07-CV-4038 RDR-KGS)
(D. Kan.)
WAL-MART STORES, INC.,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, O’BRIEN, Circuit Judge, and EAGAN, ** District Judge.
Plaintiff-Appellant Emily Hatfield appeals from an adverse judgment
following a consent jury trial before a magistrate judge. She raises the following
issues on appeal: (1) improper exclusion of expert testimony; (2) improper
denial of challenges for cause of two members of the jury panel; (3) improper
closing argument; and (4) refusal to give a requested jury instruction on spoliation
of evidence.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Claire V. Eagan, United States District Judge for the
Northern District of Oklahoma, sitting by designation.
Background
On October 22, 2005, Plaintiff was walking with the aid of crutches in a
Wal-Mart Supercenter in Manhattan, Kansas, when she slipped and fell, hitting
her head on the ground. Plaintiff was in the area of the store with a seasonal
floral display. There were no safety mats on the ground, and Plaintiff alleges that
water from the flowers caused her to slip. Plaintiff sued Wal-Mart Stores, Inc.
(Wal-Mart), alleging that Wal-Mart failed to use reasonable care for the safety of
its customers on its premises.
Plaintiff retained an expert witness, Alex Balian, who opined in discovery
that the industry standard and Wal-Mart’s policy required safety mats in areas
where water was likely to accumulate, and that Plaintiff fell in an area that should
have had a safety mat. Wal-Mart filed a motion to exclude Balian’s testimony on
the ground that his opinions were not based on “technical or specialized
knowledge” and were merely “personal opinions.” At a hearing on the motion,
Plaintiff argued that Balian was qualified to testify with respect to industry
practice because of his years of experience in the retail grocery industry. Plaintiff
also argued that an expert witness was required to assist the jury in its
determination of the reasonableness of Wal-Mart’s decision not to place a mat in
front of the seasonal floral display. The trial court agreed with Wal-Mart and
excluded Balian’s testimony.
During jury selection, Plaintiff challenged for cause two panel members
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who are current employees of Wal-Mart. One of the panel members worked at the
store where Plaintiff was injured and knew some of the witnesses, including the
store manager. Both panel members stated that they could weigh the evidence
impartially. Plaintiff’s challenges were denied, and she used two of her
peremptory strikes to exclude those panel members from the jury.
In closing argument, Wal-Mart’s counsel argued that Plaintiff failed to
present any expert testimony regarding an industry standard for placement of
safety mats. Plaintiff objected on the ground that she intended to present expert
testimony, but was prevented from doing so by Wal-Mart by virtue of its motion
to exclude the expert testimony of Alex Balian. Also in closing, Wal-Mart’s
counsel argued that no similar incidents had occurred in any of the stores
managed by Allen Jeffers, the manager of the store in question. Plaintiff asserts
that Wal-Mart withheld incident reports and should not have been permitted to
argue about the lack of past incidents when it withheld information from her.
Finally, Plaintiff filed a motion for sanctions for spoliation of evidence, and
requested a jury instruction on spoliation. Plaintiff argued that Wal-Mart
destroyed the video surveillance tapes and, thus, she was never given the
opportunity to confirm whether Wal-Mart employees conducted safety sweeps of
the area where she fell. Wal-Mart contends that it was asked to save the tapes
only in the event that they recorded Plaintiff’s fall. A Wal-Mart representative
testified that the tapes did not show the incident, so they were not preserved. The
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trial court denied Plaintiff’s request for a jury instruction on spoliation. The jury
returned a verdict for Wal-Mart and this appeal followed.
Discussion
Exclusion of Expert Testimony
The decision to admit an expert witness is governed by Federal Rule of
Evidence 702. Pursuant to that rule, expert testimony may be admitted if
“scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or determine a fact in issue . . . .” Fed. R. Evid. 702. In
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme
Court held that trial courts have a gatekeeping function to ensure both the
relevance and reliability of scientific expert testimony. Several years later, the
Supreme Court held that Rule 702 also applies to non-scientific expert testimony.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999). In Kumho Tire,
the Supreme Court recognized that “an expert might draw a conclusion from a set
of observations based on extensive and specialized experience.” Id. “Under Rule
702, the [trial] court must satisfy itself that the proposed expert testimony is both
reliable and relevant, in that it will assist the trier of fact, before permitting a jury
to assess such testimony.” United States v. Rodriguez-Felix, 450 F.3d 1117, 1122
(10th Cir. 2006).
“[W]hether the district court employed the proper legal standard and
performed its gatekeeper role” in determining whether to admit or exclude expert
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testimony is reviewed de novo. Id. We then review the trial court’s application
of the legal standard for abuse of discretion. Dodge v. Cotter Corp., 328 F.3d
1212, 1223 (10th Cir. 2003). A trial court’s ruling on the admissibility of expert
testimony will not be disturbed unless it is “arbitrary, capricious, whimsical or
manifestly unreasonable or when we are convinced that the [trial] court made a
clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Id. (citing Atlantic Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1163-64 (10th Cir. 2000)(internal quotations omitted)). The
gatekeeping function requires a trial court to make specific findings on the record;
the absence of such findings is an abuse of discretion. Id.
Plaintiff argues that the trial court should have applied Kumho Tire rather
than Daubert in determining whether Plaintiff’s expert witness, Alex Balian, was
qualified to testify as an expert. However, Daubert is used as “legal shorthand”
for the trial court’s obligation to determine the reliability and relevance of expert
witnesses. See United States v. Nacchio, 555 F.3d 1234, 1238 n.3 (10th Cir.
2009). To testify, an expert’s proposed testimony must be both reliable and
relevant. See Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2005).
In Bitler, we stated that trial courts must apply the following four factors to make
a reliability determination:
(1) whether a theory has been or can be tested or falsified; (2)
whether the theory or technique has been subject to peer review and
publication; (3) whether there are known or potential rates of error
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with regard to specific techniques; and (4) whether the theory or
approach has “general acceptance.”
Id. at 1233 (citing Daubert, 509 U.S. at 593-94). Under Kumho Tire, these
factors are used to determine the admissibility of non-technical expert testimony.
526 U.S. at 149. However, these factors are “neither definitive nor exhaustive
and . . . a trial judge has wide discretion both in deciding how to assess an
expert’s reliability and in making a determination of that reliability.” Bitler, 400
F.3d at 1233.
Wal-Mart argued, and the trial court agreed, that Balian’s testimony should
be excluded under Daubert because he failed to perform any scientific testing and
could not cite a single publication that set forth an industry standard for the
placement of safety mats in retail stores. The trial court did not enter a written
order and did not specifically state that it relied on Daubert/Kumho Tire to reach
its decision. However, at the hearing on Wal-Mart’s motion, the trial court stated
the following reasons for excluding Balian’s testimony: (1) his testimony was not
reliable because he failed to perform any scientific or technical tests; (2) he could
not state an industry standard nor cite to any publication stating an industry
standard; and (3) his testimony was not relevant because it would not assist the
jury. The trial court appears to have mistakenly believed that scientific testing is
always required under the reliability component of Daubert/Kumho Tire.
However, the trial court correctly noted that Balian’s testimony was not reliable
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because he could not articulate an industry standard for the placement of mats.
Regardless of the trial court’s mistaken belief in an absolute requirement of
scientific testing, it is clear from the record that the trial court correctly applied
the reliability component of Daubert/Kumho Tire as to an industry standard, and
determined that Balian’s testimony was unreliable.
With regard to the relevance component, the trial court stated that, in the
absence of an industry standard, the jury members could use common sense and
their own life experiences to decide whether Wal-Mart was negligent for failing
to place a safety mat in front of a floral display. See Fed. R. Evid. 702 (expert
testimony is admissible if it will “. . . assist the trier of fact to understand the
evidence or determine a fact in issue . . . .”). The trial court found that Balian’s
testimony would not assist the jury and, thus, would not be relevant. The trial
court, in its performance of its gatekeeping function, evaluated Balian’s report
and testimony, and concluded that Balian was not familiar with the facts of the
case, could not cite an industry standard, and was, thus, unqualified to give expert
testimony. While the trial court could have entered a written order explaining its
findings in more specific detail, it held a hearing and made a reasoned ruling from
the bench. Accordingly, after a de novo review, we find that the trial court
applied the correct legal standard and performed its gatekeeper role. We further
find that the trial court did not abuse its discretion by excluding the testimony of
Plaintiff’s expert witness.
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Denial of Challenges for Cause
A trial court’s refusal to strike a juror for cause is reviewed for an abuse of
discretion. Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1467 (10th Cir. 1994).
The trial court is required to grant a challenge for cause if a prospective juror
shows actual bias. Id. Actual bias is shown by the juror’s admission of bias or
“by proof of specific facts which show the juror has such a close connection to
the facts at trial that bias is presumed.” Id. However, if the trial court denies a
party’s for-cause challenge, the party must show that the use of a peremptory
strike to eliminate the prospective juror from the panel resulted in a biased jury
and substantially affected the outcome of the case. See Getter v. Wal-Mart
Stores, Inc., 66 F.3d 1119 (10th Cir. 1995).
In Getter, we held that the district court erred in denying plaintiff’s motion
to strike a juror who held Wal-Mart stock and whose wife was employed by Wal-
Mart, even though the juror claimed that he could be impartial. Id. The plaintiff
in Getter was forced to use a peremptory strike to prevent the potential juror from
serving on the jury. Id. Nonetheless, we held that there was no reversible error
because there was no evidence to suggest that the panel that was ultimately
selected was biased in any way. Id. The fact that a party is forced to use a
peremptory challenge to remove a potential juror does not per se violate the
party’s right to a fair trial. Id. at 1123. Rather, harmless error analysis applies to
determine whether the error has a “substantial influence on the outcome of the
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trial or leaves one in grave doubt as to whether it had such effect.” Id. (citations
omitted).
Plaintiff argues that she was harmed by the trial court’s denial of her
challenge for cause of two panel members who are currently employed by Wal-
Mart. At the time of trial, one of the challenged prospective jurors, Don Croy Jr.,
was employed as a lift mechanic at Wal-Mart. The other challenged juror, Megan
Dara-Irene Gillman, disclosed during voir dire that she was a current Wal-Mart
employee and that she had previously worked at the store where the incident
occurred. Ms. Gillman also disclosed that she was once co-manager with Allen
Jeffers, the Wal-Mart corporate representative and witness, and she knew several
other Wal-Mart employees on the witness list. The trial judge asked Mr. Croy and
Ms. Gillman if they could be impartial despite their employment at Wal-Mart, and
both responded that they could be impartial. Even though both prospective jurors
claimed that they could be impartial, we find that the trial court erred in denying
Plaintiff’s challenges for cause. Both, and certainly Ms. Gillman, had the types
of relationship to Wal-Mart that would require the trial court to presume bias
regardless of their claims of impartiality. See Vasey, 29 F.3d at 1467. Thus, we
conclude that the trial court erred by denying Plaintiff’s challenges for cause.
We must then determine whether this error warrants reversal. Plaintiff
argues that because of the trial court’s denial of her for-cause challenges, Plaintiff
had to use two of her peremptory strikes to remove the Wal-Mart employees from
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the panel. As a result, two jurors remained on the panel who otherwise could
have been removed by peremptory strike. One of those jurors, Jacqueline
Johnson, was acquainted with Wal-Mart’s counsel, Mr. Jarrow, because she
worked with Mr. Jarrow’s wife at Payless Shoes. Plaintiff also contends that she
would have used a peremptory strike to remove juror Jim Hicks because he had
previously worked in grocery stores and in the retail industry. Using harmless
error analysis, we find that the presence of those two jurors on the panel did not
have a “substantial influence on the outcome of the trial,” nor does it leave one in
“grave doubt as to whether it had such effect.” Getter, 66 F.3d at 1123 (internal
citations omitted). In fact, despite Plaintiff’s argument about the two jurors she
would have eliminated using her peremptory strikes, at the time Plaintiff did not
object to the composition of the jury as seated. Accordingly, the trial court’s
denial of Plaintiff’s challenges for cause is harmless error.
Closing Argument
The trial court’s rulings on objections based on improper argument are
reviewed for abuse of discretion. King v. PA Consulting Group, Inc., 485 F.3d
577, 591 (10th Cir. 2007). An argument may be improper where, inter alia,
counsel refers to evidence not in the record, makes arguments “plainly calculated
to arouse [the jury’s] sympathy,” or engages in personal attacks on the opposing
party or the opposing party’s counsel. Whittenburg v. Werner Enterprises Inc.,
561 F.3d 1122, 1128-29 (10th Cir. 2009). Reversal based on improper argument
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in closing is appropriate only where the argument “obviously prejudiced” the
opposing party. Smith v. Atlantic Richfield Co., 814 F.2d 1481, 1488 (10th Cir.
1987). In our recent case, Whittenburg, we identified three factors that indicate
that improper closing remarks “rise to the high level required to merit reversal.”
Id. at 1131. Under the Whittenburg factors, the appeals court should more likely
find prejudice: (1) where “counsel truly overemphasizes an improper argument;”
(2) where “the district court decline[s] to take any specific curative action;” and
(3) where it appears “counsel’s comments had a prejudicial effect” on the ultimate
verdict. Id. at 1131-32.
Plaintiff raises two issues with regard to closing argument. First, Plaintiff
contends that it was improper for Wal-Mart’s counsel to argue that Plaintiff was
unable to provide a shopkeeper or retailer to testify that the industry practice was
to put safety mats in front of floral displays when the trial court, on Wal-Mart’s
motion, excluded testimony from Plaintiff’s expert witness. Plaintiff also
contends that Wal-Mart’s argument regarding the lack of other incidents at Wal-
Mart was improper. According to plaintiff, Wal-Mart’s counsel’s improper
arguments resulted in obvious prejudice and require reversal.
Plaintiff argues that it was improper to allow Wal-Mart’s counsel to argue
that Plaintiff failed to “bring in a shopkeeper or retailer to say that they would
have used a carpeted safety mat in this situation” (Brief of Appellant, p. 22) when
Wal-Mart caused the exclusion of Plaintiff’s expert witness, who would have
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presented such testimony. Her argument overlooks a very pertinent fact-- her
expert’s testimony was properly excluded. Accordingly, as Wal-Mart argued,
there was no testimony in evidence on the point. Counsel’s closing argument is
generally limited to the “evidence in the record and to reasonable inferences from
that evidence.” Whittenburg, 561 F.3d at 1128-29. Wal-Mart’s counsel’s
argument was fair comment on plaintiff’s failure to meet its burden of proof, and
is not improper closing argument. Even if, however, Wal-Mart’s argument were
improper, we will not reverse for improper argument unless obvious prejudice
resulted. We find that it did not. Wal-Mart’s comment on the absence of expert
testimony as to the placement of safety mats did not obviously prejudice Plaintiff.
The issue of where and when to place a safety mat in a store can be decided by
the jury using common sense, and an expert was not necessary to aid the jury in
making its determination. Accordingly, Wal-Mart’s comment on the lack of an
unnecessary witness did not constitute obvious prejudice to Plaintiff. Further,
applying the Whittenburg factors, we find that the comments in question were a
minor point in closing; one comment was before objection was made and one was
immediately after the objection was overruled. See King, 485 F.3d at 591
(holding that reversal was not warranted where counsel did not “linger” on the
contested argument, but merely suggested it in passing). Thus, counsel did not
overemphasize an improper argument. Admittedly, the trial court did not take any
specific curative action, instead overruling Plaintiff’s objection and giving
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Wal-Mart’s improper remark the court’s imprimatur. Cf. Pappas v. Middle Earth
Condominium Ass’n, 963 F.2d 534, 540 (2d Cir. 1992). Nonetheless, Plaintiff has
not shown that the improper remark had a prejudicial effect on the ultimate
verdict, given the number of other disputed issues in the case. When viewed in
the context of the entire closing, Wal-Mart’s counsel’s remark about the lack of
testimony on safety mats does not warrant reversal.
Plaintiff also contends that reversible error occurred based on Wal-Mart’s
argument that no similar incidents had occurred at any stores managed by Allen
Jeffers. Plaintiff argues that Wal-Mart failed to produce requested documents
relating other incidents at Wal-Mart stores and, thus, should not have been
permitted to argue that no other incidents had occurred. Wal-Mart argues that it
produced a print-out of incidents that were potentially similar, and gave Plaintiff
the opportunity to request additional documentation for any incident that appeared
relevant.
Plaintiff belatedly brought her discovery complaints to the court’s attention
during the trial. The court observed: “I’m not ascribing any fault to either party,
either in failing to produce what has been anticipated or failing to ask for it
specifically. But we’re in the middle of a trial, and I’m -- I’m not exactly sure
how to proceed until I see what, if anything, out of the 95 [incident reports]
would more directly relate to that issue.” The court asked Plaintiff’s counsel to
review the provided incident reports and identify those requiring additional
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consideration by the court, and why. Counsel failed to do so. The issue here,
however, is not whether Plaintiff received all of the documents that she requested,
but whether Wal-Mart’s argument was improper and whether it obviously
prejudiced Plaintiff. Wal-Mart’s argument was a reasonable inference from
evidence in the record and was not calculated to arouse the sympathy of the jury.
See Whittenburg, 561 F.3d at 1128-29. Accordingly, this argument was not
improper. Moreover, we find that Wal-Mart’s argument about the lack of prior
incidents at Allen Jeffers’ stores was not overemphasized, nor did it appear to
have an effect on the verdict so as to require reversal. Thus, Plaintiff was not
obviously prejudiced by improper argument, and is not entitled to reversal on that
basis.
Spoliation of Evidence
A trial court’s refusal to grant sanctions for spoliation of evidence is
reviewed for abuse of discretion. 103 Investor I, L.P. v. Square D Co., 470 F.3d
985, 989 (10th Cir. 2006). Sanctions for spoliation of evidence are appropriate
when the party had a duty to preserve the evidence because it knew or should
have known litigation was imminent, and the other party was prejudiced by the
destruction of the evidence. Id. The party seeking sanctions for spoliation need
not show that the other party acted in bad faith. Id. An instruction on adverse
inference may be an appropriate sanction for spoliation of evidence. See id.
Plaintiff filed a pretrial motion for sanctions based on spoliation of
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evidence, and asked the trial court to give an adverse inference instruction. The
trial court took Plaintiff’s motion under advisement, but permitted Plaintiff to
present evidence regarding the unavailability of store surveillance videotapes.
The trial court did not issue a written order on Plaintiff’s motion for spoliation,
but stated that Plaintiff failed to establish bad faith or intentional concealment,
and declined to give an adverse inference jury instruction based on spoliation of
evidence.
Plaintiff contends that the trial court’s refusal to give an adverse inference
instruction based on spoliation of evidence amounts to reversible error. To
warrant an adverse inference instruction, Plaintiff would have been required to
show that Wal-Mart knew or should have known that litigation was imminent, and
that she was prejudiced by the destruction of evidence. See 103 Investor I, L.P.,
470 F.3d at 989. While the trial court stated otherwise, Plaintiff was not required
to show that Wal-Mart acted in bad faith or intentionally destroyed evidence.
Wal-Mart contends that Plaintiff requested only the tapes that captured the
incident, and because none of the tapes showed Plaintiff’s fall, Wal-Mart did not
preserve them. Even if Wal-Mart knew or should have known that litigation was
imminent, the trial court did not abuse its discretion by failing to give an adverse
inference instruction. Steve Luken, the Wal-Mart employee who reviewed the
tapes, testified that the incident was not captured by the security cameras.
Plaintiff has argued that, while the tapes may not have shown the fall, they might
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have provided evidence that Wal-Mart employees did not perform regular sweeps
of the store to monitor safety conditions. Wal-Mart is not expected to be
prescient; it reviewed its tapes as specifically requested by Plaintiff and nothing
suggests it failed to preserve evidence of the fall. In any event, Plaintiff cannot
show that the availability of the tapes would have changed the outcome of the
trial. Accordingly, the trial court did not abuse its discretion by finding that an
adverse inference instruction was not warranted.
Cumulative Error
Finally, although Plaintiff does not specifically argue cumulative error, she
does claim that, taking all of the errors together, she did not get a fair trial.
However, because we have identified only one harmless error, the juror issue,
cumulative error is not applicable. See United States v. Rogers, 556 F.3d 1130,
1144 (10th Cir. 2009) (holding that the purpose of cumulative error review is to
address the cumulative effect of two or more individually harmless errors).
Accordingly, the judgment is AFFIRMED in all respects.
Entered for the Court
Claire V. Eagan
District Judge
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