The Legal Examiner Affiliate Network The Legal Examiner The Legal Examiner The Legal Examiner search instagram avvo phone envelope checkmark mail-reply spinner error close The Legal Examiner The Legal Examiner The Legal Examiner
Skip to main content

The United States Court of Appeals for the Tenth Circuit determined what was inadmissible expert testimony in Nash v. Wal-mart, No. 17-1092 (10th Cir. Sept. 7, 2017).

In this case, Steven Nash (“Nash”) fell off a 7-foot step ladder and sued the manufacturer, Louisville Ladder (“Louisville”) and retailer Wal-Mart Stores, Inc. (“Wal-Mart”) claiming negligence, strict liability, and breach of an implied warranty. In district court, Mr. Nash retained Robert D. Fritz (“Fritz”) as an expert witness. Louisville and Wal-Mart moved to strike the expert and to grant summary judgment. After a hearing, a magistrate judge agreed that the expert witness’s opinion was unreliable, and would not admit it. On appeal, the district judge also relied on Fritz’s lack of qualifications regarding step ladders. Without Fritz’s opinion testimony, the district judge concluded that Nash had not established a genuine issue of material fact. Thus, the district judge granted not only the defendants’ motion to strike but also their motion for summary judgment.

Under the law, the opinion testimony could be admitted into evidence only if the expert was qualified and his opinion testimony was reliable. This Court is reviewing the case to determine if there was abuse of discretion in deciding the expert witness’s testimony was inadmissible and whether the grant of summary judgment was proper. Nash is appearing pro se, so the Court must view the evidence in the light most favorable to Nash, resolving all factual disputes and reasonable inferences in his favor. Nash claims the defendants did not question the expert’s report or his calculations, and that the magistrate judge relied on the expert’s failure to produce calculations, but it was not the expert’s fault. Nash claims had he been allowed to speak the outcome could have been different. Nash also states that he defendants’ counsel conducted an inaccurate demonstration at a hearing, and that the ladder in question did not satisfy standards established under the American National Standards Institute.

The Court finds the defendants did challenge the report, filing a motion to strike that disputed both Fritz’s qualifications and his opinions. As for the calculations, the defendants had not received the expert’s calculations. Without those calculations, the defendants had argued that they could not know how the expert was reaching his conclusions.

Nash also argues that if he had been allowed to speak at the hearing, he could have influenced the magistrate judge’s proposed disposition. But Nash had asked the court to appoint counsel. According to Nash, he was quieted by his attorney, not by a judge. We have no basis to reverse based on the attorney’s quieting of Nash. Finally, Nash argues that the step ladder was deficient under the standards established by the American National Standards Institute. But Nash did not present this argument in district court.

Because Nash’s arguments were meritless, the Court affirms the lower court’s rulings.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.

Comments for this article are closed.