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Westenberger v. Albertson's LLC

United States District Court, D. Nevada

October 29, 2019

Jackie Westenberger, Plaintiff
Albertson's LLC, Defendant


          Jennifer A. Dorsey Judge


         Plaintiff Jackie Westenberger sues Albertson's LLC for injuries that she claims she sustained when she slipped and fell at an Albertson's grocery store. Albertson's moves for summary judgment, arguing that Westenberger can't prove that the store breached its duty to her because she has no evidence that there was something “slick” on the floor, that it caused her fall, or that the store had notice of the alleged hazardous condition. It also moves to strike the report and testimony of Westenberger's expert witness, who opines that the store spoliated evidence by failing to preserve the floor tiles during its planned remodel in the months following Westenberger's fall. Westenberger responds that there is a genuine issue of material fact whether the store had notice of the alleged hazardous condition on the floor based on skid marks and debris in surveillance photos, a sweep log showing that more than 45 minutes had passed since the last inspection, and the adverse-inference instruction in her spoliation motion she hoped the court would grant.

         But the magistrate judge denied Westenberger's spoliation motion and she did not challenge that decision, so she cannot rely on an adverse-inference spoliation instruction as a substitute for evidence. Her expert's opinions are no help to her because they are improper legal conclusions. And because there is no evidence that the store caused, knew about, or should have known about the spill, Westenberger cannot prove her negligence claim. So I grant both of the defendant's motions, direct the entry of judgment in favor of Albertson's, and close this case.


         A. Westenberger's fall

         While grocery shopping at an Albertson's grocery store in Las Vegas, Nevada, on December 3, 2015, [1] “something made [Westenberger] slide.”[2] She tried to grab on to a nearby stand to catch herself, but she “slid down and fell on [her] arm.”[3] Westenberger claims that she immediately felt pain and started screaming.[4] While on the ground, she did not notice anything that would have caused her to fall.[5] The store's cameras recorded the fall and pictures were taken of the incident, [6] but the three Albertson's employees who responded to the incident all stated that they did not see any water or debris on the floor.[7]

         B. The evidence-preservation request

         About six weeks after Westenberger's fall, her attorney sent Albertson's a letter requesting copies of its “Guest Accident/Incident Report, witness statements, and photographs for this accident, along with [its] floor sweep inspection logs for the date of the incident.”[8] The letter asked the grocery store to preserve the employment records for employees who were on duty the day of the incident and recordings of the fall.[9] Westenberger's counsel also warned Albertson's that its failure to preserve such evidence would “result in a presumption of liability against [the] company as well as a separate action against [the] company for spoliation of evidence.”[10]

         C. Plaintiff's spoliation expert

         Westenberger's counsel retained Dr. Bosch of Forensic Engineering Incorporated to investigate the incident at the grocery store.[11] Dr. Bosch reviewed documents, technical codes, and standards on walkway safety.[12] However, when Dr. Bosch and his team arrived at the store to inspect the scene on November 5, 2018, defense counsel informed them “that the subject floor tile had been removed and destroyed”[13] during a planned remodel that began in early 2016.[14]Defense counsel stated that it would attempt to find and provide remaining or similar tiles to Dr. Bosch.[15]

         Despite not inspecting the old tiles, Dr. Bosch reached conclusions about the incident based on industry standards from the American Society for Testing and Materials (ASTM). ASTM E 1188 provides “standards for the collection and preservation of information and physical items by any technical investigator pertaining to an incident that can be reasonably expected to be the subject of litigation.”[16] The standard also states that a technical investigator should take certain steps to protect physical evidence and use photographs or video to document the scene of an incident and its condition.[17] ASTM E 860 provides additional standards for the protection of evidence during testing, examination, or other actions that can likely affect its condition.[18] It also requires the technical investigator to inform the client and recommend the client inform “other parties in interest” of the activity to allow the interested parties to participate or witness the action.[19]

         Dr. Bosch made the following conclusions in his report based on the ASTM standards, each of which the store objects to as either an improper legal conclusion, unreliable, or irrelevant:

6.1 Albertsons Companies, LLC violated the requirements of ASTM E 1188 and ASTM E 860 when it spoliated subject floor tiles.
6.2 Albertsons Companies, LLC violated the requirements of ASTM E 1188 and ASTM E 860 by removal and destruction of the subject floor tiles without giving notice to, and providing adequate time, for plaintiff Westenberger to complete her investigation, examination and testing of the subject floor tiles.
6.3 If Albertsons Companies, LLC felt there were compelling reasons to complete its unilateral spoliation of the evidence, it was obligated to provide documentation of its reasons, which it has failed to do.
6.4 It is understood that defense counsel will provide some number of new old stock (NOS) tiles to FEI for examination, measurement and analyses.
6.5 Forensic Engineering, Inc. will issue a supplemental report after completing its examination and slip resistance measurement of the promised NOS tiles.[20]

         Dr. Bosch also concluded that, based on the Black's Law Dictionary definition of “spoliation of evidence, ” Albertson's had “unequivocally and undeniably” spoliated evidence by prematurely and unnecessarily removing an destroying the tiles even though Westenberger requested that the store preserve relevant evidence.[21] Dr. Bosch also concluded that Albertson's was required to give “compelling reasons” for its decision to remove the tiles and that the tiles were necessary for him to “determine the slip resistance.”[22]


         Albertson's moves to exclude Dr. Bosch's spoliation opinions and for summary judgment in its favor based on the lack of evidence about the substance that Westenberger allegedly slipped on. Because Westenberger's opposition to summary judgment relies on her expert's conclusion that the defendant impermissibly destroyed evidence and assumes that the court would have granted her (ultimately unsuccessful) spoliation motion, which was pending at the time she filed her opposition, I first consider the store's challenge to Westenberger's expert's report and testimony before turning to its summary-judgment motion.

         A. Dr. Bosch is not authorized to give the legal conclusion that the defendant spoliated evidence.

         Albertson's moves to strike Dr. Bosch's report and testimony, arguing that his conclusions 6.1 through 6.3, which state that the store violated ASTM E standards 1188 and 860 when it “spoliated the subject floor tiles” without explanation and before Westenberger could investigate them, are inadmissible legal conclusions.[23] Westenberger, who planned to use Dr. Bosch's report to obtain an adverse instruction against Albertson's, responds that these aren't legal conclusions because Dr. Bosch was merely explaining how to prevent spoliation based on the ASTMs and highlighting the store's failure to preserve the tiles.[24]

         Federal Rule of Evidence 702 governs the admissibility of expert-witness testimony.[25]One requirement for admissibility is that the expert testify only about “scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue.”[26] Essentially, this rule is a relevancy requirement. Evidence is relevant under FRE 401 if it “has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.”[27]

         FRE 702 also requires expert-witness testimony to be “based on sufficient facts or data” and the “product of reliable principles and methods, ” and that the “expert has reliably applied the principles and methods to the facts of the case.”[28] But an expert cannot testify about a matter of law that results in a legal conclusion because “‘[r]esolving doubtful questions of law is the distinct and exclusive province of the trial judge.'”[29] And whether a party has spoliated evidence is a question of law for the court to decide, as it must determine whether a party had notice that evidence would be relevant to litigation and destroyed it anyway.[30]

         Dr. Bosch's report amounts to a legal conclusion because he concludes that the store spoliated evidence. Dr. Bosch has no legal training to determine whether spoliation occurred, and each of his three conclusions regarding the application of the term (as defined in Black's Law Dictionary) to the ASTMs, is properly the province of the court, not an expert. Because Dr. Bosch's report does not contain other conclusions regarding the evidence in this case, I conclude that it is not relevant and would not assist the court in resolving the issues at trial. For this same reason, I need not consider the defendant's arguments about the unreliability of Dr. Bosch's conclusions. I also decline to address Albertson's challenges to conclusions 6.4 and 6.5 as these are not opinions based on “scientific, technical, or other specialized knowledge.”[31] ...

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