Theodore E. Karatinos & Shaheen Nouri^{1 1 Theodore Ted E. Karatinos, Esq. has taught litigation-related classes at the Stetson University College of Law since 2002. He practices personal injury law at the Holliday Karatinos Law Firm and may be contacted at [email protected]. Shaheen Nouri is a currently a Juris Doctor Candidate at the Stetson University College of Law and serves as a teaching fellow for pre-trial litigation courses.}

I. Introduction

Given sufficient data, the well-reasoned opinions of retail safety experts should be admitted in federal civil trials. In recent years, the field of retail safety has significantly matured.^{2 2 The authors define retail safety as loss prevention, risk management, facility management, and commercial maintenance practices.} Given the recent developments in the field, barring the admissibility of safety opinions under Federal Rule of Evidence 702 should only occur in extraordinary circumstances. To avoid the exclusion of their forensic opinions, retail safety experts must present their opinions within the proper court-related context.

Retail safety experts can run the gauntlet of the federal rules of evidence by familiarizing themselves with the requirements. They must frame their qualifications in terms of knowledge, skill, experience, training, [and] education.^{3 3 Fed. R. Evid. 702.} They should organize their forensic reports within the procedural framework of Federal Rule of Civil Procedure 26(a)(2), while drafting the content of their reports within the framework of Federal Rule of Evidence 702. Their reports must educate the federal judiciary on the widely-accepted standards used in risk management, facility management, loss prevention, and commercial maintenance. Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence.^{4 4 Silverpop Sys. v. Leading Mkt. Techs., Inc., 641 F. App’x 849 (11th Cir. 2016) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir. 1975)).} Stated another way, a business owner breaches the duty of care owed to its customers when it allows a dangerous condition or defect to exist on the premises if that condition or defect was created by the owner, operator or his agent; or, if the condition is created by someone else, when the business owner had actual or constructive notice that the dangerous condition or defect existed prior to the injury.^{5 5 Morris v. Wal-Mart Stores, Inc., 330 F.3d 854, 858 (6th Cir. 2003).} By incorporating the requirements of the federal rules into their reports, retail safety experts will secure the admissibility of their opinions in federal court.

II. The Matured Field of Retail Safety

Within the past ten years, groups, associations, and governmental entities have developed accepted retail safety standards. These developments reflect a push toward uniformity in securing a safe retail environment for vendors, customers, and employees. For example, the International Sanitary Supply Association [ISSA] published a set of cleaning industry management standards in 2006.^{6 6 Cleaning Industry Management Standard, ISSA (2006).} In that publication, the ISSA outlines the minimum accepted standards for the following, with references to all pertinent OSHA standard subsections:

• Managerial Training;
• Site-specific Orientation;
• Environmental Management Systems; and
• Regulatory Compliance

These standards provide a comprehensive guide to safe retail cleaning practices. Historically, a retail outlet’s failure to implement systematic cleaning of the premises has led to considerable litigation. Such litigation runs the gamut from slip-and-falls to falling merchandise cases. Going forward, the ISSA standards may form a baseline for accepted cleaning practices across all retail settings, as the ISSA’s cleaning industry management standards reflect a broader trend towards providing uniform measures for safe practices in retail environments.

Beyond standardized cleaning practices, various organizations and retail safety industry leaders have waded into the ocean of retail safety. The American National Standards Institute [ANSI] has issued standards for the safe matting of commercial entrances.^{7 7 ANSI/NFSI Standard B101.6 for Commercial Entrance Matting in Reducing Slips, Trips, and Falls, American National Standards Institute (2012).} The Standard Guide for Commercial Entrance Matting in Reducing Slips, Trips, and Falls, published by the National Floor Safety Institute [NFSI] provides information on all aspects of safety mats, their placements, their maintenance, required patterns, and more. The ANSI standard is designed both to prevent and to reduce the incidents of falls in retail safety establishments. By following the guidelines prescribed therein, a landowner would strive to provide safer walking surfaces at a reasonable cost. Through the implementation and enforcement of internal policies, a higher degree of floor safety may be achieved. Industrial giants, such as Cintas, have provided their own comprehensive guides to preventing falls in areas of high pedestrian traffic.^{8 8 Floor Mats: A Key Component of Your Slip and Fall Prevention Strategy, Cintas Corporation (2014).} Retail safety experts now recognize the utility of an integrated cleaning and matting safety plan. Most importantly, both the National Safety Council and the federal government have blazed a uniform trail towards a safer retail experience by publishing standards. The widely-referenced National Safety Council’s Accident Prevention Manual lays out what is known as the safety hierarchy or hazard control hierarchy for the prevention of accidents. This hierarchy prescribes a prioritized scheme to address hazards before they occur. First, it states that a retail environment should endeavor to eliminate hazards. This is inclusive of an array of hazards, which include hazardous chemicals, perilous designs, and dangerous product placements when safer alternatives can be achieved. Second, the hierarchy states that a retail environment should venture to guard against the possibility of someone coming into contact with the hazard. The means of guarding against the contact with hazards ranges from proper placement of safety cones around wet floors or sealing off a supermarket aisle when heavy machinery is in use, to the requirement of rubber gloves for employees using chemicals in the retail space. Third, the hierarchy prescribes that retail environments strive to warn all individuals of hazards as a last line of defense. Put another way, it is important for the retail environment to warn of hazards with the use of signs, tape, and safety cone (among other safety warning systems). This hierarchy will help the retail environment to focus on the most effective means of dealing with hazardous conditions and ensure safety.

The federal government has promulgated safety regulations. By and through the Occupational Safety and Health Administration, the matured field of retail safety has been furnished with regulations that encompass a broad range of retail safety matters. OSHA’s regulations encompass measures for the protection of both employees and patrons, and outlines measures that the retail environment must adhere to for the protection of such individuals. These regulations span the breadth of walking-working surface conditions, the repair and safeguarding of hazardous conditions, the use of qualified professionals for repair and correction, and other relevant instances of ensuring safety in a retail environment.

Within the field of retail safety, an extensive amount of regulations and peer-reviewed literature is available for the use of any retail safety expert in forming their opinions. The formation of admissible testimony in this field requires the amalgamation of regulations, policies, and peer-reviewed studies, among other elements mentioned in the attached template. This process should make use of all pertinent resources to form a protective wrapping around the expert’s opinion. When done properly, this patchwork of cleaning, matting, and managerial safety standards now forms a quilt that the qualified retail safety expert may rely upon to cover forensic opinions.

III. Drafting the Rule 26(a)(2) Report

Retail safety experts should consider using the template linked to this article to comply with Federal Rule of Civil Procedure 26(a)(2).^{9 9 Fed. R. Civ. P. 26(a)(2).} In the first section of the report, the opinions should be numbered. Each opinion must be supported with underlying data and analyzed through the filter of one or more industry standards. The second section of the report should disclose a detailed numerical list of the facts and data relied upon by the expert. The third section of the report will contain charts, graphs, and diagrams. The fourth section will showcase the expert’s qualifications. The fifth section will contain a list of cases in which the expert has thus far testified in the past four years. The final section will disclose how much the expert has been paid for the services rendered in the case. Following the template will streamline judicial scrutiny of the expert’s analysis under Federal Rule of Evidence 702.

IV. Peer-Reviewed Retail Safety Expert Research

After the Supreme Court’s seminal 1993 ruling in Daubert v. Merrell Dow Pharmaceuticals,^{10 10 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 594 (1993).} the gatekeeping requirements for admissible expert opinion were codified in Federal Rule of Evidence 702.^{11 11 Fed. R. Evid. 702.} Admissible opinions draw strength from peer-reviewed research. Retail safety experts would be wise to cite copiously to articles within the subspecialty applicable in each case. These articles should be listed in section II of the expert’s forensic report for ease of access and organizational purposes. A representative sample of such peer-reviewed research on retail safety practices is attached for further reading.

V. Current Federal Civil Cases Favoring Admissibility of Retail Safety Expert Opinions

Federal precedent provides a foundation that favors the admissibility of expert opinions in the field of retail safety. Federal courts have admitted the opinion of a retail safety expert where it provides the court with the industry standards of the particular retail environment at bar.^{12 12 State Farm Fire & Cas. Co. v. Bell, F. Supp. 3d 1085, 1098 (D. Kan. 2014); Bass v. Hardee’s Food Sys., 982 F. Supp. 1041, 1043 (D. Md. 1997).}A trial court must be flexible in evaluating the admissibility of the expert’s opinions.^{13 13 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 594 (1993).} As one federal court noted, trial courts routinely allow experts to testify on industry standards, ordinances, and policies.^{14 14 Garrity v. Wal-Mart Stores East, L.P., 288 F.R.D. 395, 402 (W.D. Ky. 2012).} In 2000, the Advisory Committee for the Federal Rules of Evidence observed the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.^{15 15 Fed. R. Evid. 702 advisory committee’s note (2000).} Put another way, the Committee clarified that the trial courts should not endeavor to take away from the jury or fact-finder the authority and responsibility of viewing the facts and determining a result through the lens of expert testimony when it is helpful. Precedent regarding the requisite use of scientific principles and replicable experiments in the qualification of expert opinion, with regard to retail safety, directs that an expert’s experience alone may be sufficient in establishing their reliability, making the scientific principles no longer requisite factors. In Peterson v. Scotia Prince Cruises, Ltd., a federal court found that peer-review, publication, and potential error rate are not applicable factors when the reliability of expert testimony depends heavily on their knowledge and experience, rather than on the methodology or theory behind their testimony.^{16 16 Peterson v. Scotia Prince Cruises, Ltd., 323 F. Supp. 2d 128, 129-30 (D. Me. 2004).} The opinion of a retail safety expert based on industry standards has been admitted in federal court for such reasons.^{17 17 Wisdom v. TJX Cos., 410 F. Supp. 2d 336, 341-43 (D. Vt. 2006).} Federal courts routinely admit expert testimony regarding industry standards, ordinances, and policies in slip-and-fall cases for the purpose of helping the fact-finder understand the evidence being presented.^{18 18 Garrity v. Wal-Mart Stores East, L.P., 288 F.R.D. 395, 402 (W.D. Ky. 2012).} Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence.^{19 19 Silverpop Sys. v. Leading Mkt. Techs., Inc., 641 Fed. App’x 849, 853 (11th Cir. 2016) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180 (5th Cir. 1975)).}Generally, expert opinion testimony is admitted when the issue upon which the evidence is offered is one of science and skill, or similarly when the subject matter is outside the common knowledge of jurors.

VI. Conclusion

Civil juries will greatly benefit by filtering lapses in retail safety through the lens of expert testimony. The field of retail safety has matured in recent years to the point of standardizing the practices, policies, and procedures that minimize the risk of accidents. By familiarizing themselves with the requirements of the federal rules of evidence and civil procedure, retail safety experts will pass through the gate of admissibility. Use of the attached template will provide a sound foundation for a thorough forensic report. Through the inspection of the accident site, the analysis of photographic evidence, the consideration of deposition testimony, the gathering of peer-reviewed research specific to the case, the discovery of internal policies, and the application of industry standards, the reliability of the retail safety expert’s opinion will leap from the pages of their report.

Retail Safety Expert Opinion Template
Pursuant to Federal Rule of Evidence 26(a)(2)

I. Opinion(s)

II. List of Referenced Facts and Data:

III. Charts, Graphs, and Diagrams (employed in reaching opinions and/or integral to the opinions themselves)

IV. Expert’s Qualifications for Purposes of Foundation

V. List of Cases Within Which Expert Has Previously Testified

VI. Disclosure of Expert’s Compensation for Services Rendered

Representative Sample of Peer-Reviewed Retail Safety Expert Research

I. Articles

II. Books

III. Federal Regulations

IV. Governmental Publications

V. Nationwide Industry Standards

VI. Safety Manuals

Footnotes

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