Jessica Loseke v. Menard, Inc., a Wisconsin Corporation

               IN THE UNITED STATES DISTRICT COURT                       
                 FOR THE DISTRICT OF NEBRASKA                            

JESSICA LOSEKE,                                                          

              Plaintiff,                     8:23CV537                   

    vs.                                                                  
                                      MEMORANDUM AND ORDER               
MENARD, INC., a Wisconsin Corporation;                                   

              Defendant.                                                 


    This matter is before the Court on the Plaintiff’s motion in limine, Filing No. 59, and 
on Defendant’s motion in limine, Filing No. 63.  Plaintiff, Jessica Loseke, moves this Court 
for an order in limine precluding the testimony and opinions of Defendant’s expert witness, 
Alex J. Balian, from being admitted at trial based on Fed. R. Evid. 702 and Daubert v. 
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).  Defendant, Menard, Inc., a Wisconsin 
Corporation (“Menards”), pursuant to Local Civil Rule 7.1, Fed. R. Evid. 702, and Daubert 
v. Merrell Dow and its progeny moves this Court for an order in limine, excluding all 
testimony  by  Plaintiff’s  expert  William  N.  Nelson,  BSME,  MS,  MBA,  and  any  other 
evidence of and/or reference to Mr. Nelson’s opinions.                    
    FACTS                                                                
    Plaintiff and her husband were shopping at Menards in Omaha, Nebraska.  They 
were loading a “refurbished cart” with bags of water softener when the cart broke and 
injured Ms. Loseke’s knee.  She was required to have surgery and will need additional 
surgery(ies) in the future.                                               
    LAW                                                                  
    Under the Federal Rules of Evidence, expert testimony is admissible only if it is 
both relevant and reliable.  The proponent of the expert testimony must demonstrate that 
the expert’s opinion is based on sufficient facts or data, is the product of reliable principles 
and methods, and that the expert has reliably applied the principles and methods to the 

facts of the case.  See Fed. R. Evid. 702.                                
    Under  Federal  Rule  of  Evidence  702,  a  witness  “qualified  as  an  expert  by 
knowledge, skill, experience, training, or education” may give opinion testimony if the 
party offering their testimony demonstrates by a preponderance of the evidence that their 
“specialized  knowledge  will  help  the  trier of  fact” and  their  opinions are  “based on 
sufficient facts or data,” are “the product of reliable principles and methods,” and “reflect 
[  ]  a  reliable  application  of  the  principles  and  methods  to  the  facts  of  the  case.” 
    Whether  expert  testimony  is  admissible  depends  on  whether  (1)  the  expert 
testimony will be “useful to the finder of fact in deciding the ultimate issue of fact,” (2) the 

witness is “qualified to assist the finder of fact,” and (3) the proposed testimony is “reliable 
or trustworthy in an evidentiary sense.”  Acad. Bank, N.A. v. AmGuard Ins. Co., 116 F.4th 
768, 790 (8th Cir. 2024) (citing Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 
(8th Cir. 2014)).                                                         
    The expert testimony must assist the trier of fact to understand the evidence or to 
determine a fact in issue.  Testimony that is speculative or not based on sufficient facts 
should be excluded.  The Court should apply the legal standard from Daubert to determine 
the admissibility of expert testimony under Fed. R. Evid. 702.  See Moe v. Grinnell Coll., 
547 F. Supp. 3d 841, 845 (S.D. Iowa 2021) (citing Kumho Tire Co. v. Carmichael, 526 
U.S. 137, 149 (1999) and parenthetically stating that Kumho held “Daubert analysis 
applies to expert testimony based on ‘technical’ or ‘specialized knowledge’”). 
    “To satisfy the reliability requirement, the party offering the expert testimony ‘must 
show by a preponderance of the evidence both that the expert is qualified to render the 
opinion  and that  the methodology  underlying his conclusions  is scientifically  valid.’” 

Khoury v. Philips Med. Sys., 614 F.3d 888, 892 (8th Cir. 2010) (quoting Barrett v. Rhodia, 
Inc., 606 F.3d 975, 980 (8th Cir. 2010)) (cleaned up) (emphasis added).  This requires 
proof “the expert's theory or technique can be (or has been) tested, that the theory or 
technique has been subject to peer review and publication, that there is a known or 
potential rate of error, and that the theory or technique is generally accepted in the 
scientific community.”  Sprafka v. Med. Device Bus. Servs., Inc., 139 F.4th 656, 660 (8th 
Cir. 2025) (citing Daubert, 509 U.S. at 593–94.                           
    To be admissible, expert testimony must also be relevant.  Weisgram v. Marley 
Co., 169 F.3d 514, 517 (8th Cir. 1999) (emphasis added).  Evidence is relevant 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.”  Fed. R. Evid. 401.  For 
expert testimony to be relevant under Daubert, it must be sufficiently tied to the facts and 
evidence in the case and assist the trier of fact.  Daubert, 509 U.S. at 591.  In other words, 
expert testimony must be relevant, helpful, and “fit” the case.  Id.  “[S]cientific validity for 
one purpose is not necessarily scientific validity for other, unrelated purposes.”  Id.  Expert 
testimony is not helpful if it invades the province of the judge in instructing the jury as to 
the applicable law or the role of the jury in applying that law to the facts.  Robertson v. 
Norton Co., 148 F.3d 905 (8th Cir. 1998) (“courts must guard against invading the province 
of the jury on a question which the jury was entirely capable of answering without the 
benefit of . . . expert opinion.”) (quotation omitted).                   
    DISCUSSION                                                           
         A.  Opinions of Mr. Alex Balian                                 
    Plaintiff argues that Mr. Balian’s proffered testimony is not reliable.  Plaintiff states 

that “Mr. Balian’s opinions are primarily based on his personal experience in the retail 
industry, rather than on any scientific or technical methodology.  His report lacks any 
empirical data or testing to support his conclusions regarding the safety of Menards’ 
shopping cart inspection procedures.”  Filing No. 60 at 2.  Further, Plaintiff states that 
“[h]is conclusions are speculative and not grounded in any recognized standards or 
practices within the retail industry.”  Id. at 3.  Plaintiff also argues that the testimony will 
not assist the trier of fact and fails to address critical issues regarding the shopping cart 
at the time of the accident.  This, contends Plaintiff, will cause undue prejudice and 
confusion.                                                                

    Defendant contends that “[h]e has worked as an owner and operated a chain of 
supermarkets, where he was responsible for developing policies and safety procedures, 
overseeing internal operations, and risk management. Most recently, he has served as a 
consultant for retail store operations, where he has advised, trained, and executed 
policies and procedures in supermarkets and other public facilities . . ..”  Filing No. 71 at 
2.                                                                        
         B.  Opinions of Mr. William Nelson                              
    Defendant argues that Mr. Nelson’s opinions are unreliable, not grounded in any 
particular  expertise  or  specialized  knowledge,  and  not  the  product  of  any  reliable 
methodology.  Mr. Nelson’s opinions, it is urged, are also irrelevant and will not assist the 
trier of fact in deciding any disputed issues.  Accordingly, Mr. Nelson’s opinions are 
inadmissible.                                                             
    Defendant  argues  that  “Nelson’s  opinions  are  unreliable.    He  believes  that 
Menards  should  have  some  sort  of  “preventative  maintenance”  program,  and  that 

Menards should hire employees who are trained in welding to inspect carts. These 
opinions are not based on any retail-industry specific standards but rather drawn based 
on his own belief.”  Filing No. 64 at 1.                                  
    Defendant  contends  that  Plaintiff’s  expert  is  trying  to  create  a  new  industry 
standard in shopping cart maintenance.  Defendant argues that “[h]is methodology was 
to review various sources which include a Department of Energy manual regarding best 
practices for entities in the energy sector as well as a manual published by the U.S. Army 
in 1972 regarding its equipment to opine that these materials somehow have bearing on 
a shopping cart breaking.”  Id. at 2.  Last, Defendant contends that “Nelson’s opinions as 

to a new preventive maintenance program invade the province of the Court and jury.”  Id. 
at 1–2.                                                                   
    Defendant is also arguing that Nelson’s opinion that there should have been 
maintenance regarding welding the carts are not admissible, as Nelson is not an expert 
on this particular issue.  Nelson contends that the staff should have been instructed and 
trained on this issue, so they would know to look for such breakages.  Defendant argues 
there is no such standard of care in the industry, and thus, Nelson is trying to create a 
new standard and trying to interfere with the duty of the Court and jury to decide these 
issues.                                                                   
    Plaintiff disagrees with the arguments made by Defendant.  Mr. Nelson’s expert 
opinions,  contends  Plaintiff,  must  be  admissible,  and  any  “gaps”  go  to  weight,  not 
admissibility.  Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006).  
Plaintiff further states that “Mr. Nelson’s opinions are reliable because he bases them on 
reliable  scientific  principles  of  engineering.    Mr.  Nelson’s  methodology  is  based  on 

universal safety principles applicable across industries, which are scientifically valid and 
have been accepted in various contexts.”  Filing No. 69 at 2.             
    ANALYSIS                                                             
    The Court has carefully reviewed the argument of the parties as well as the briefs, 
the evidence presented, and in particular, the opinions of both Mr. Nelson and Mr. Balian.  
See Filing Nos. 60, 64 (including attachments 1–4), 65, 67, 69, 70, 71, and 73.  “[T]he 
factual basis of an expert opinion [generally] goes to the credibility of the testimony, not 
the admissibility, and it is up to the opposing party to examine the factual basis for the 
opinion in cross-examination.”  Ray v. Wal-Mart Stores, Inc., 120 F.3d 882, 885 (8th Cir. 

1997) (citation omitted).  Mr. Nelson is an engineer who has a working knowledge of 
welding requirements, and Mr. Nelson applied engineering principles from his educational 
background, studies, and work experience. (Filing No. 69-1 at 31–34, 110:4–112:12; 
113:2–113:14; 115:7–117:20;117:21–118:12; 119:2–6; 120:5–11; 121:21–122:4).   
    With regard to Mr. Balian, the Court likewise finds his testimony relevant and will 
assist the trier of fact in this case.   Mr. Balian has served as a consultant for retail store 
operations, where he has advised, trained, and executed policies and procedures in 
supermarkets and other public facilities.                                 
    Both  experts  appear  to  have  the  educational  knowledge  and  training  and 
experience to testify in this case.  Their testimony appears to be such as would assist the 
trier of fact without invading the province of the jury.  The Court will permit the testimony 
of both experts, but the parties may raise appropriate objections, if any, at trial.   
    THEREFORE, IT IS ORDERED THAT:                                       

         1.   Plaintiff’s motion in limine, Filing No. 59, is denied; and 
         2.  Defendant’s motion in limine, Filing No. 63, is denied.     
    Dated this 19th day of November, 2025.                               

                                  BY THE COURT:                          

                                  s/ Joseph F. Bataillon                 
                                  Senior United States District Judge