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Walker v. DDR Corp.

United States District Court, D. South Carolina, Columbia Division

March 26, 2019

Sharon Walker, Plaintiff,
DDR Corp., BRE DDR Harbison Court LLC, Joe Doe No. 1, John Doe No. 2, John Doe Company No. 1, Joe Doe Company No. 2, Joe Doe Company No. 3, Defendants. BRE DDR Harbison Court LLC, Third-Party Plaintiff,
Coffelt Consolidated Holdings Inc., d/b/a Elite Sweeping Service, Third-Party Defendant.


         This matter is before the court for review of Plaintiff Sharon Walker's (“Plaintiff”) Motion to Reconsider filed on February 18, 2019. (ECF No. 120.) Plaintiff requests the court to reconsider its Order and Opinion (ECF No. 103), filed on January 4, 2019, excluding her expert, Dr. Bryan Durig (“Dr. Durig”), from testifying at trial. (Id. at 8.) The court heard arguments regarding Plaintiff's Motion on February 21, 2019. (ECF No. 123.) On March 4, 2019, DDR Corp. and BRE DDR Harbison Court LLC (collectively, “Defendants”) responded in opposition to Plaintiff's Motion. (ECF No. 125.) After careful consideration of Plaintiff's Motion and for the reasons set forth below, the court DENIES Plaintiff's Motion to Reconsider (ECF No. 120).


         On June 19, 2014, Plaintiff used a parking lot, owned, maintained, and managed by Defendants, in Columbia, South Carolina. (ECF No. 1-2 at 4 ¶ 10.) While using the parking lot, Plaintiff, allegedly, stepped into a hole between a water meter lid and the parking lot's surface. (Id.) Plaintiff maintains that she “fell violently to the ground and sustained serious injuries to her right knee.” (Id. at 4 ¶ 11.) The parking lot was repaved after Plaintiff's accident, but before she filed the instant lawsuit. (ECF Nos. 43, 55.) After filing her Complaint in the Richland County Court of Common Pleas on May 9, 2017, Defendants removed the case to the United States District Court for the District of South Carolina on June 16, 2017. (ECF Nos. 1, 1-1.) Plaintiff's action is brought pursuant to the laws of negligence in South Carolina. (ECF No. 1-1.)

         Prior to the court's Order and Opinion, Dr. Durig was prepared to testify as follows: (1) “[t]he sloped asphalt and the change in elevation in the area of the water valve cover is considered a hazardous area and would be in violation of the requirements of ASTM F1637”; (2) “[t]he sloped asphalt and the change in elevation in the area of the water valve is in violation of the requirements of the IPMC”; and (3) “it is concluded, to a reasonable degree of engineering certainty, the sloped asphalt and the change in elevation in the area of the subject water valve cover is considered a fall hazard and is not being maintained in compliance with codes and industry standards.” (ECF No. 55-2 at 5 (emphasis added).) Defendants moved to exclude Dr. Durig on July 20, 2018. (ECF No. 43.) The court heard arguments from the parties on December 5, 2018. (ECF No. 90.)

         On January 4, 2019, the court filed its Order and Opinion, which excluded Dr. Durig from testifying because Plaintiff failed to “carry[] her burden under Daubert” and “establish[] the admissibility of Dr. Durig's testimony by a preponderance of proof.” (ECF No. 96 at 21-22.) Specifically, the court held that “Dr. Durig's approach is insufficiently reliable” because he failed to conduct “any measurements or testing of the water valve's photograph, despite having the means to do so.” (Id. at 20.) The court further reasoned, applying Daubert, that Plaintiff did not show “Dr. Durig's method of measuring . . . is generally accepted in the scientific community or subject to peer review, ” failed to provide the potential rate of error of Dr. Durig's methodology, and neglected to supply “any other factors under which to evaluate Dr. Durig's opinion.” (Id.) Because of Dr. Durig's peculiar practice by way of measuring only through his observations, the court found it “impossible . . . to determine whether Dr. Durig reliably applied his methodology to the water valve cover, which in turn impact[ed] his subsequent opinions regarding the [applicable] industry standards.” (Id.) As to the industry standards, the court found that the International Property Maintenance Code (“IPMC”) and the American Society for Testing and Materials (“ASTM”) depend upon explicit measurements, and Dr. Durig's lack of physical measurements made it “impossible for him to reliably determine whether Defendants were in compliance with those standards . . . .” (Id. at 20 n.13.) Thus, the court concluded that “Plaintiff [failed to] establish[] the admissibility of Dr. Durig's testimony by a preponderance of proof.” (Id. at 22 (citations omitted).) Accordingly, for those reasons, the court granted Defendants' Motion to Strike Bryan Durig (ECF No. 43) and excluded the entirety of his testimony from trial. (Id. at 22.) Plaintiff filed her Motion to Reconsider on February 18, 2019, arguing that the court committed several errors of law that are manifestly unjust. (ECF No. 120.) Plaintiff concludes that the court's Order and Opinion is “based in error, warranting reconsideration and amendment of the Order pursuant to Federal Rule of Civil Procedure 54(b).” (Id. at 8.) Defendants replied in opposition to Plaintiff's Motion on March 4, 2019, maintaining that “the fact that Plaintiff is not satisfied with [the] Order does not constitute sufficient grounds for reconsideration, ” and “[Dr.] Durig made his estimation solely on . . . guesswork, [which] does [not] absolve Plaintiff of her burden to prove that Dr. Durig's methodology is reliable.” (ECF No. 125.) Because this matter has been extensively briefed and argued, it is now ripe for the court's review. See generally Sauls v. Wyeth Pharm., Inc., 846 F.Supp.2d 499, 501 (D.S.C. 2012) (“The parties have fully briefed the issues, and this matter is ripe for consideration.”).


         A. Motions for Reconsideration Under Rule 54(b)

         The Federal Rules of Civil Procedure provide the following:

[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b) (emphasis added). A federal district court “retains the power to reconsider and modify its interlocutory judgments, including partial summary judgments, at any time prior to final judgment when such is warranted.” Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th Cir. 2003). “Compared to motions to reconsider final judgments pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Rule 54(b)'s approach involves broader flexibility to revise interlocutory orders before final judgment as the litigation develops or arguments come to light.” Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017) (alterations in original) (citations omitted).

         Despite the inherent flexibility embodied within Rule 54(b), the United States Court of Appeals for the Fourth Circuit has cautioned that “the discretion afforded by Rule 54(b) ‘is not limitless,' . . . .” U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Va., LLC, 899 F.3d 236, 256 (4th Cir. 2018) (quoting Carlson, 856 F.3d 320 at 325). Specifically, a court's revision pursuant to Rule 54(b) is “cabined . . . by treating interlocutory rulings as law of the case.” Carlson, 856 F.3d at 325 (citations omitted). Rule 54(b) provides a federal district court with discretion to revisit an earlier ruling, however, “such discretion is ‘subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.'” U.S. Tobacco Coop. Inc., 899 F.3d at 257 (quoting Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003)). Accordingly, “a court may revise an interlocutory order under the same circumstances in which it may depart from the law of the case: ‘(1) a subsequent trial producing substantially different evidence; (2) a change in applicable law; or (3) clear error causing manifest injustice.'” Id. (quoting Carlson, 856 F.3d at 325). While this standard resembles the standard under Rule 59(e), it accounts for “potentially different evidence discovered during litigation as opposed to the discovery of ‘new evidence not available at trial.'” Carlson, 856 F.3d at 325 (quoting Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

         B. Admissibility of Expert Opinions and Testimony

         The Federal Rules of Evidence provide:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702 (emphasis added). A federal trial court is tasked with ensuring that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). When evaluating the admissibility of expert testimony, “[c]ourts are required to act as ‘gatekeepers' to ensure that expert testimony is relevant and reliable.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195 (4th Cir. 2017) (quoting Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001)). In order to fulfill its gatekeeping responsibilities, a federal court “must decide whether the expert has ‘sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case.'” Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 162 (4th Cir. 2012) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999)). In other words, a court is tasked with conducting “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-94. A federal district court may not abandon its gatekeeping function. See Nease v. Ford Motor Co., 848 F.3d 219, 230 (4th Cir. 2017).

         Generally, a federal district court possesses “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho TireCo., 526 U.S. at 152. As the gatekeeper of expert ...

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