United States Court of Appeals
For the First Circuit
No. 05-2070
FRANCIS SANTOS ET AL.,
Plaintiffs, Appellees,
v.
POSADAS DE PUERTO RICO ASSOCIATES, INC.,
D/B/A WYNDHAM CONDADO PLAZA HOTEL AND CASINO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Lynch and Lipez, Circuit Judges.
Michelle Pirallo Di Cristina, with whom Jeannette López de
Victoria and Pinto-Lugo, Oliveras, & Ortiz, PSC were on brief, for
appellant.
Jaime F. Agrait Lladó, with whom Agrait-Lladó Law Firm was on
brief, for appellees.
June 29, 2006
SELYA, Circuit Judge. In this slip-and-fall action,
brought under diversity jurisdiction, see 28 U.S.C. § 1332(a), the
plaintiffs won a total of $1,250,000 in damages. On appeal, the
defendant presses four claims of error. None has merit.
Consequently, we affirm the judgment below.
I.
Background
The jury supportably could have found the following
facts. On October 16, 2003, the plaintiffs, Francis Santos and his
wife, Diane, then visiting Puerto Rico from Massachusetts, were
guests at the Wyndham Condado Plaza Hotel and Casino (the Hotel).
As Santos entered the Hotel's pool, he slipped and fell, sustaining
serious injuries.
The steps that Santos used to enter the pool were large
and semicircular, under water, with glossy tiles at the edge of
each step. Expert testimony offered on behalf of the plaintiffs
indicated that the variable friction between the steps and their
edges, the slipperiness of the glossy tiles when wet, the geometric
configuration of the semicircular steps, and the absence of a
handrail combined to create a perilous condition. Knowing that
guests used the steps to enter and exit the pool, the Hotel neither
made them safe for this readily foreseeable use nor warned of the
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inherent danger. These failures, the jury plausibly could have
found, caused the accident.1
Francis and Diane Santos charged the Hotel with
negligence and sued for damages in Puerto Rico's federal district
court. See P.R. Laws Ann. tit. 31, §§ 5141-5142. The district
court empaneled a jury and a two-day trial commenced on May 18,
2005. The plaintiffs presented the bulk of their case in chief on
the first day of trial. Because their medical expert, Dr. Carlos
Grovas, was unavailable, the district court reordered the proof,
see Fed. R. Evid. 611(a), and compelled the Hotel to present its
entire case before the plaintiffs presented Grovas's testimony (the
plaintiffs had, however, already presented all of their liability
evidence). Grovas testified after the defendant rested. The Hotel
did not ask to recall its medical expert or to present any rebuttal
evidence on damages.
After the evidence had closed, counsel offered summations
and the court instructed the jury. The Hotel proffered an
elaborate special verdict form, see Fed. R. Civ. P. 49(a), but the
district court rejected it in favor of a simpler approach. Using
the court's verdict forms, the jurors found negligence on the
Hotel's part, absolved the plaintiffs of any comparative
negligence, and proceeded to award Francis Santos $1,000,000 for
1
The Hotel presented expert testimony indicating that the
steps were safe, but the jury was free to credit the plaintiffs'
expert.
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his injuries and Diane Santos $250,000 for consequential damages
(e.g., loss of consortium). This timely appeal followed.
II.
Analysis
On appeal, the Hotel seeks to challenge (i) the district
court's alteration of the order of proof; (ii) its decision to
allow the plaintiffs' liability expert to testify; (iii) its
rejection of a tendered special verdict form; and (iv) its denial
of the Hotel's motion for judgment as a matter of law. We address
these claims of error sequentially.
A.
Order of Proof
The Hotel strives to convince us that it was unfairly
burdened, and the plaintiffs unfairly advantaged, by the district
court's alteration of the order of proof. We are not persuaded.
"It is axiomatic that district courts enjoy wide latitude
in matters concerning the ordering of proof and the presentation of
evidence." Morales Feliciano v. Rullán, 378 F.3d 42, 57 (1st Cir.
2004); see Fed. R. Evid. 611(a) (mandating that "[t]he court shall
exercise reasonable control over the mode and order of . . .
presenting evidence"). We review order-of-proof determinations for
abuse of discretion and will set aside a verdict based on a
challenge to such a determination only if the complaining party
musters a substantial showing of unfair prejudice. See Morales
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Feliciano, 378 F.3d at 57; see also Elgabri v. Lekas, 964 F.2d
1255, 1260 (1st Cir. 1992).
Here, the Hotel complains that it was unduly prejudiced
in two ways: by having only one hour following the court's Rule
611(a) order within which to gather and prepare its witnesses,2 and
by what it characterizes as an improper shifting of the burden of
proof on the issue of damages. Both plaints lack force.
As to witness preparation, it is nose-on-the-face plain
that such preparation could not have been substantially affected by
Grovas's delayed appearance. After all, Grovas's trial testimony
did not last long; it comprises only thirty transcript pages. This
means that even if Grovas had testified before the defense went
forward, the Hotel would have had only an extra hour, at most, to
gather and primp its witnesses. Minor scheduling changes of this
sort occur on a daily basis in the course of trial practice, and
counsel must be ready to deal with them. In the absence of special
circumstances — and none are present here — such tweakings of the
order of proof do not work unfair prejudice.
The Hotel's professed concern about burden-shifting
strikes us as chimerical. The district court, sensitive to this
2
We note, in passing, that the Hotel may well have known about
the scheduling conflict in advance of the trial (plaintiffs'
counsel claims that he raised the scheduling conflict during a
pretrial conference two days prior to trial). There is no
transcript of that conference in the record, however, so we assume
for argument's sake that the Hotel was surprised by Grovas's
unavailability.
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possibility, gave a crystal clear set of jury instructions, telling
the jurors several times that the burden of proof as to all
elements of the case, including damages, rested with the
plaintiffs. We can presume that the jury followed these
instructions, see Richardson v. Marsh, 481 U.S. 200, 206 (1987)
(recognizing "the almost invariable assumption . . . that jurors
follow their instructions"); Evans v. Avery, 100 F.3d 1033, 1041
(1st Cir. 1996) (similar), and the instructions given here cured
any conceivable prejudice.
The short of it is that the district court's decision to
allow a lone witness to testify out of order was not, on the facts
of this case, anything close to an abuse of discretion.3
B.
Expert Testimony
The Hotel attacks the admission of testimony from the
plaintiffs' liability expert, Dr. Ricardo Galdós. It questions
both Galdós's qualifications and his scientific methodology.
Galdós's testimony admittedly was crucial to the
plaintiffs' case. He testified, in substance, that a defect in the
3
Seemingly as an afterthought, the Hotel insinuates that there
was unfair prejudice arising out of the altered timing of its Rule
50(a) motion for judgment as a matter of law. Its point appears to
be that it was forced to argue this motion at the close of the
liability evidence (prior to the testimony of either medical
expert). That is balderdash; there is nothing in the record that
suggests that the district court might have ruled differently had
the motion been argued at some other time.
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premises led to Santos's fall. That dangerous condition was
comprised of a combination of factors, such as variable friction
between the steps and their edges, the use of an unsuitable type of
tile at the edges, the peculiar configuration of the stairs, and
the absence of a handrail.4 We review the district court's
decision to admit or exclude expert opinion testimony for abuse of
discretion. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999). We discern none here.
Federal Rule of Evidence 702 permits opinion testimony by
"a witness qualified as an expert by knowledge, skill, experience,
training, or education." The Hotel notes that Galdós has no
experience in the construction or design of swimming pools per se,
4
Galdós testified in pertinent part:
I think the biggest problem as it relates to this
particular fall is [a] combination of . . . factors.
Specifically, as one walks from the entry into the pool,
one first steps on an area that is fairly rough. . . .
Then you come up to an area where you have that
glazed ceramic tile. That difference in friction, alone,
is a cause of people falling. . . .
So you have that first, that change in frictional
properties that creates an element for a fall to occur.
At the edge of the steps, you also have that glossy
ceramic tile which is very slippery when it is wet. This
is clearly under water. There is an absence of any
hydrostatic film which may . . . create an even more
slippery condition.
So we have variable friction. We have something
that, by itself, in fact, is very slippery. And then you
have, as we saw, the change in geometry of successive
steps. That effectively disrupts the normal pattern of
walking, the normal rhythm. That also creates an element
for the fall to occur.
[And] we also have the absence of a hand rail.
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and argues that he should not have been allowed to testify as an
expert in this instance. But experts come in various shapes and
sizes; there is no mechanical checklist for measuring whether an
expert is qualified to offer opinion evidence in a particular
field. Cf. United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir.
1987) (explaining that "[e]xpertise is not necessarily synonymous
with a string of academic degrees or multiple memberships in
learned societies" and emphasizing the value of "extensive
practical experience"). The test is whether, under the totality of
the circumstances, the witness can be said to be qualified as an
expert in a particular field through any one or more of the five
bases enumerated in Rule 702 — knowledge, skill, experience,
training, or education. See United States v. Shay, 57 F.3d 126,
132 (1st Cir. 1995); United States v. Paiva, 892 F.2d 148, 160 (1st
Cir. 1989).
In this case, the record reveals that Galdós holds a
doctorate in mechanical engineering, that he is certified by the
National Academy of Safety as a tribologist (that is, someone who
deals with friction and the application of friction to the way
pedestrians walk), and that in his professional capacity he has
analyzed approximately 2,000 slip-and-fall accidents since 1990.
Given this background, we cannot say that the district court abused
its discretion in deeming Galdós qualified to offer expert
testimony in a slip-and-fall case. See, e.g., Correa v. Cruisers,
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a Div. of KCS Int'l, Inc., 298 F.3d 13, 25 (1st Cir. 2002);
Hoffman, 832 F.2d at 1310.
Rule 702 also requires that "(1) the testimony [be] based
upon sufficient facts or data, (2) the testimony [be] the product
of reliable principles and methods, and (3) the witness ha[ve]
applied the principles and methods reliably to the facts of the
case." In undertaking this reliability review, an inquiring court
may consider a wide array of factors, including but not limited to
"the verifiability of the expert's theory or technique, the error
rate inherent therein, whether the theory or technique has been
published and/or subjected to peer review, and its level of
acceptance within the scientific community." Ruiz-Troche v. Pepsi
Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998) (citing
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-95 (1993)).
In the last analysis, the reliability inquiry must be flexible and
case-specific. See Daubert, 509 U.S. at 594.
Galdós testified that, in addition to interviewing
Francis Santos, he visited the Hotel pool, measured the steps,
examined photographs of the area, reviewed applicable codes and
standards, made needed calculations, and drew upon his extensive
friction testing of various tiles (including tiles similar to those
used to edge the pool steps). The district court knew that any
doubts as to either the accuracy of Galdós's opinion or the weight
to be given to it would be thoroughly explored by means of defense
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counsel's cross-examination, the Hotel's presentation of contrary
expert testimony, and the jury instructions. See Daubert, 509 U.S.
at 596. In the end, the court pronounced itself satisfied that
Galdós's approach was scientifically plausible and that his
methodology possessed adequate indicia of reliability to allow his
expert opinion to go to the jury. This determination was within
the encincture of the trial court's discretion. See, e.g., Marcano
Rivera v. Turabo Med. Ctr. P'ship, 415 F.3d 162, 171 (1st Cir.
2005) (finding no abuse of discretion in a district court's
determination that life-care planning expert's methodology —
reviewing records, receiving a letter, and conducting interviews —
was sufficiently reliable).
C.
Verdict Form
The district court gave the jurors two verdict forms, one
to be used if they found for the defendant and the other to be used
if they found for the plaintiffs. The latter form also asked
whether any comparative negligence had occurred; if so, to what
extent; and, finally, the amount of damages to be awarded. The
Hotel assails these verdict forms as too general, exhorting us to
rule that the court should instead have employed a more elaborate
special verdict form, separately cataloguing the various elements
of the plaintiffs' cause of action, that the Hotel had proffered.
See Fed. R. Civ. P. 49(a).
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"A verdict form must be reasonably capable of an
interpretation that would allow the jury to address all factual
issues essential to judgment." Sheek v. Asia Badger, Inc., 235
F.3d 687, 699 (1st Cir. 2000) (citation and internal quotation
marks omitted). We review the form as a whole, in conjunction with
the jury instructions, in order to determine whether the issues
were fairly presented to the jury. See Sanchez-Lopez v. Fuentes-
Pujols, 375 F.3d 121, 134 (1st Cir. 2004).
The Hotel does not challenge the wording of the verdict
forms used by the court. It also concedes — as, indeed, it must —
that this case was not a complicated one — the claim asserted was
a garden-variety negligence claim, and the district court properly
instructed the jury on every element essential to that cause of
action. Those instructions, coupled with a minimalist set of
verdict forms, hardly can be considered misleading. The forms gave
the jury a simple, easily understood outlet through which to
express its conclusions. There was no error in the district
court's use of the minimalist verdict forms. See, e.g., Sheek, 235
F.3d at 698-99 (finding no error in a verdict form that did not ask
separate questions concerning direct and vicarious liability where
the court adequately instructed the jury on the issues); cf.
Johnson v. Teamsters Local 559, 102 F.3d 21, 28 (1st Cir. 1996)
(recognizing that if "the general charge adequately directs the
jury to its duties in answering the questions submitted to it there
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is no need to accompany the submission with repetitive instruction"
(citation and internal quotation marks omitted)).
At the expense of carting coal to Newcastle, we add that
Rule 49(a) is permissive, not obligatory. See, e.g., Mueller v.
Hubbard Milling Co., 573 F.2d 1029, 1038 n.13 (8th Cir. 1978).
Consequently, a district court's decision not to adopt a special
verdict form proposed by a party is subject to review only for
abuse of discretion. See Transam. Premier Ins. Co. v. Ober, 107
F.3d 925, 933 (1st Cir. 1997). Given the straightforwardness of
the plaintiffs' cause of action and the district court's
supportable determination that the Hotel's proposed special verdict
form was "too complicated," we are unwilling to second-guess the
court's decision to simplify the process. Less is sometimes more.5
D.
Sufficiency of the Evidence
As a last-ditch measure, the Hotel contends that the
district court should have entered judgment as a matter of law in
its favor because the plaintiffs presented insufficient evidence of
5
To the extent that the Hotel assigns error on the ground that
the district court did not share the verdict forms with counsel
before charging the jury, we note only that our previous
"suggest[ion] that proposed verdict forms always be shared with
counsel and discussed together with the proposed jury instructions
before the jury charge," Sanchez-Lopez, 375 F.3d at 135, was simply
a suggestion. Where, as here, the district court opts to use
standard verdict forms and does not mislead counsel about its
intentions, any error in failing to follow that suggested protocol
was harmless.
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the Hotel's actual or constructive knowledge of an unsafe
condition. This contention is procedurally defaulted: the Hotel
twice moved unsuccessfully for judgment as a matter of law during
the trial, see Fed. R. Civ. P. 50(a), but failed to renew its
motion after the verdict, see Fed. R. Civ. P. 50(b). That failure
undermines the Hotel's attempt to advance a sufficiency of the
evidence challenge on appeal.
It is settled that a party's "entitlement to judgment as
a matter of law . . . cannot be appealed unless [its Rule 50(a)]
motion is renewed pursuant to Rule 50(b)." Unitherm Food Sys.,
Inc. v. Swift-Eckrich, Inc., 126 S. Ct. 980, 987 (2006). The
Hotel's assignment of error falls squarely within the compass of
this holding. It is, therefore, bootless.
III.
Conclusion
We need go no further. For the reasons elucidated above,
we affirm the verdict and judgment.
Affirmed.
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