Mann v. Quiktrip Corporation

                UNITED STATES DISTRICT COURT                            
                EASTERN DISTRICT OF MISSOURI                            
                      EASTERN DIVISION                                  

DANIEL G. MANN,                 )                                         
                              )                                         
   Plaintiff,                 )                                         
                              )                                         
v.                            )       No. 4:22-cv-01060-JAR             
                              )                                         
QUIKTRIP CORPORATION d/b/a      )                                         
QUIKTRIP #644,                  )                                         
                              )                                         
   Defendant.                 )                                         
                              )                                         

                  MEMORANDUM AND ORDER                                  

   This matter is before the Court on Defendant Quiktrip Corporation’s Motion to Exclude 
Expert Report, Testimony, and Opinions of Christopher E. Janson.  ECF No. 32.  The motion is 
fully briefed and ready for disposition.  For the reasons set forth below, the Court will grant 
Quiktrip’s Motion.                                                        
                          Background                                    
   On July 20, 2022, Plaintiff Daniel G. Mann filed his Petition in the Circuit Court of St. 
Louis County alleging common law negligence against Quiktrip related to a fall on February 17, 
2021, on a Quiktrip property in Maryland Heights, Missouri.  ECF No. 6.  On October 4, 2022, 
Quiktrip timely removed the case to this Court based on diversity jurisdiction under 28 U.S.C. 
§ 1441.  ECF No. 1.  On December 14, 2022, Plaintiff filed a Consent Motion for Leave to File a 
First Amended Complaint, which the Court granted.  ECF Nos. 13 and 15.  Plaintiff’s First 
Amended Complaint raises a single cause of action against Quiktrip for negligence based on a 
theory of premises liability related to Plaintiff’s February 17, 2021, fall.  ECF No. 14. 
   Quiktrip now seeks to exclude the expert report, testimony, and opinions of Plaintiff’s 
designated expert, Christopher E. Janson.  Mr. Janson is a Certified Safety Professional with over 
thirty years of experience in the field of safety.  ECF No. 33-4 at 1.  Mr. Janson claims in his 
report that he intends to provide “a safety analysis [to] determine if there were conditions that 

would be considered defective and/or unreasonably dangerous.”  Id.  Mr. Janson’s report lists the 
following general opinions he intends to offer:                           
   1.   QuikTrip employee Tommy Burrow attempted to clear the exterior steps 
        and sidewalk of snow and ice, and put down ice melt, on the morning of 
        February 17, 2021, sometime prior to 8:15am.                    
   2.   QuikTrip has policies and procedures in place for upkeep walks including 
        inspecting outdoor areas for snow and ice conditions.           
   3.   QuikTrip’s policies and procedures appear to meet recognized standards 
        for the identification and control of slip and fall hazards.    
   4.   Surveillance video footage for the day in question does not show a 
        QuikTrip employee inspecting the steps in question for at least one hour 
        prior to the fall of Mr. Mann, despite documentation to the contrary. 
   5.   QuikTrip failed to follow its policies and procedures by not ensuring the 
        inspection of the steps and associated landings.                
   6.   Had QuikTrip properly performed the upkeep walks, as required by their 
        policies and procedures, Mr. Mann’s fall could have been prevented. 
   7.   The fall of Mr. Mann was caused by the unreasonably dangerous condition 
        of the steps as maintained by QuikTrip.                         
Id. at 4.                                                                 
   Quiktrip makes two general arguments for why Mr. Janson’s report, testimony, and 
opinions should be excluded.  First, Quiktrip argues that Mr. Janson’s opinions are not the 
product of reliable principles and methods.  Quiktrip’s position is that the first four of Mr. 
Janson’s opinions are simply statements of fact and the remaining three opinions are not 
scientific or technical and will not provide the jury with insight that the jury itself could not 
determine by reviewing the evidence.  Quiktrip supports its position by citing to Hall v. Target 
Corp. in which the United States District Court of the Middle District of Florida excluded the 
majority of Mr. Janson’s opinions because they were not based on proper methodology, went 
beyond the standards of care in the industry, and were factual and legal conclusions that were 

speculative and ultimately would not help the jury.  8:22-CV-0914, 2023 WL 4686205, at *4 
(M.D. Fla. July 21, 2023).  Second, Quiktrip argues that Mr. Janson’s opinions should be 
excluded because they invade the province of the jury and are generally speculative.  Quiktrip 
reiterates its position that Mr. Janson’s opinions are not admissible because the jury can weigh 
the evidence in this case without the help of an expert.                  
   Plaintiff argues that the admission of expert testimony under Federal Rule of Evidence 
702 is permissive, and Quiktrip’s Motion should be denied.  Plaintiff first argues that Mr. 
Janson’s first four opinions “are drawn from his knowledge, information and experience as 
applied to the evidence adduced in this case.”  ECF No. 37 at 6.  Plaintiff does not respond to 
Quiktrip’s argument that Mr. Janson’s opinions were not arrived at using reliable scientific 

principles and methods.  Second, Plaintiff argues that Mr. Janson’s remaining opinions are 
proper because they will aid the jury “regarding the policies and procedures of Defendant and 
Defendant’s violations of said policies.”  Id. at 7.  Plaintiff supports this argument by pointing to 
the allegedly conflicting testimony of Quiktrip’s employees that appear to indicate some 
confusion regarding the policies.  Plaintiff further argues that a corporate defendant’s rules, 
standards, or training materials are always admissible, though this has little bearing on whether 
Mr. Janson’s testimony regarding those procedures is admissible.  Plaintiff then points to some 
case law in the Eighth Circuit indicating that experts are permitted to testify regarding violations 
of policies, procedures, and industry standards.  Finally, Plaintiff argues that Mr. Janson’s 
testimony should be permitted even though it reaches the ultimate issue in the case because it 
aids the jury.                                                            
                         Legal Standard                                 
   The admission of expert testimony in federal court is governed by Federal Rule of 

Evidence 702.  Rule 702 provides that:                                    
   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 the proponent 
   demonstrates to the court that it is more likely than not that:      
        (a) the expert’s scientific, technical, or other specialized knowledge will 
        help the trier of fact to understand the evidence or 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’s opinion reflects a reliable application of the principles and 
        methods to the facts of the case.                               
Fed. R. Evid. 702.  The rule was amended in 2000 in response to Daubert v. Merrell Dow 
Pharms., Inc., 509 U.S. 579 (1993), which charged trial judges with a “gatekeeping” role to 
screen expert testimony for relevance and reliability.  Id. at 590–93; see also Russell v. Whirlpool 
Corp., 702 F.3d 450, 456 (8th Cir. 2012).  “To satisfy the relevance requirement, the proponent 
must show that the expert’s reasoning or methodology was applied properly to the facts at issue.”  
Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010).  “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.”  Id. (citing Marmo v. Tyson Fresh Meats, Inc., 
457 F.3d 748, 757 (8th Cir. 2006).                                        
   In the most recent amendment to Rule 702, made effective on December 1, 2023,1 the 
Advisory Committee Notes clarify and emphasize that proponents of expert testimony must 
establish admissibility of the proffered evidence by a preponderance of the evidence.2  Fed. R. 
Evid. 702 advisory committee’s note to 2023 amendment; see also Word v. Mine Safety 

Appliances Co., No. 5:14-CV-00445-BRW, 2016 WL 3034045 at *2 (E.D. Ark. Mar. 25, 2016) 
(stating “when a party proffers an expert witness, deciding whether Rule 702 is satisfied is a 
preliminary issue governed by Federal Rule of Evidence 104(a),” “requir[ing] the proponent of 
evidence to establish its admissibility by a preponderance of the evidence.”).  “Before admitting 
scientific expert testimony, the court must conclude, pursuant to Federal Rule of Evidence 104(a) 
that the proposed testimony constitutes (1) scientific knowledge that (2) will assist the trier of 
fact to understand or determine a fact in issue.”  United States v. Martinez, 3 F.3d 1191, 1196 
(8th Cir. 1993) (citing Daubert, 509 U.S. at 592).  The proponent of the expert testimony must 
prove its admissibility by a preponderance of the evidence.  See Daubert, 509 U.S. at 592 n.10.  
“The preponderance standard ensures that before admitting evidence, the court will have found it 

more likely than not that the technical issues and policy concerns addressed by the Federal Rules 
of Evidence have been afforded due consideration.”  Bourjaily v. United States, 483 U.S. 171, 
175 (1987).                                                               


1    The Advisory Committee Notes clarify that this amendment does not impose any new, 
specific procedures, but instead “is simply intended to clarify that Rule 104(a)’s requirement 
applies to expert opinions under Rule 702.”  Fed. R. Evid. 702 advisory committee’s note to 
2023 amendment.                                                           

2    The Advisory Committee states that “many courts have held that the critical questions of 
the sufficiency of an expert’s basis, and the application of the expert’s methodology, are 
questions of weight and not admissibility.  These rulings are an incorrect application of Rules 
702 and 104(a).”  Fed. R. Evid. 702 advisory committee’s note to 2023 amendment. 
   “The inquiry envisioned by Rule 702 is a flexible one,” designed to exclude “vague 
theorizing based on general principles” or “unsupported speculation,” but not requiring an 
opinion to be “a scientific absolute in order to be admissible.”  Adams v. Toyota Motor Corp., 
867 F.3d 903, 914–16 (8th Cir. 2017) (cleaned up), as corrected (Aug. 14, 2017); see also 

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141–42 (1999) (“the test of reliability is ‘flexible,’ 
and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or 
in every case.  Rather, the law grants a district court the same broad latitude when it decides how 
to determine reliability as it enjoys in respect to its ultimate reliability opinion.”); Unrein v. 
Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005) (stating that the “evidentiary inquiry is 
meant to be flexible and fact specific, and a court should use, adapt, or reject Daubert factors as 
the particular case demands.”).                                           
                          Discussion                                    
   Plaintiff has not established by a preponderance of the evidence that Mr. Janson’s expert 
opinions are admissible.  Mr. Janson’s opinions are either simple statements of fact, speculative 

conclusions not supported by a proper methodology, or are otherwise not relevant and therefore 
not helpful to the jury.                                                  
   Mr. Janson’s opinions 1, 2, and 4 are simply statements of fact and are not permissible 
expert opinions.  Whether Mr. Burrow cleared the steps of ice and snow and applied snow melt 
is a fact that can be established by other admissible evidence.  Similarly, the facts regarding 
Quiktrip’s policies and procedures for upkeep walks can be established by the policies and 
procedures themselves.  Finally, whether the surveillance video footage shows a Quiktrip 
employee inspecting the area before Plaintiff fell can be gleaned from the video footage and does 
not require expert testimony.                                             
   Just like in Hall, Mr. Janson’s opinions regarding these facts should be excluded.  
Plaintiff’s attempt to show how the opinions permitted in Hall are comparable misses the mark.  
The Hall court limited Mr. Janson testimony to the following: “wet floors can be a slip and fall 
hazard” and “while walking, pedestrians look towards their objective, not directly in front of 

their feet, unless something draws their attention to that area.”  Hall, 2023 WL 4686205 at *11.  
The Hall court found that these opinions “go to the standards of care in the industry” and 
therefore were acceptable testimony.  Id.  Mr. Janson’s Report provides no similar opinion in this 
case, and Plaintiff has not established how the opinions permitted in Hall is comparable to any of 
the opinions at issue here.  Because Plaintiff has not established by a preponderance of evidence 
that these opinions are scientific or technical ones that require Mr. Janson’s expert testimony, 
Opinions 1, 2, and 4 will be excluded.                                    
   Opinion 3 may be an opinion, but Plaintiff has failed to establish its relevance to the 
issues in this case.  While the recognized standards for identification and control of slip and fall 
hazards are a proper subject of testimony for a safety expert, whether Quiktrip’s policies and 

procedures meet recognized standards has no bearing on Quiktrip’s potential liability in this 
negligence action.  As such, the Court finds that this opinion is not admissible at this stage, 
subject to reconsideration.                                               
   Opinion 5 is not the type of opinion that requires expert testimony.  The jury can assess 
the evidence presented and determine whether Quiktrip failed to follow its own policies and 
procedures regarding the inspection of the steps.  Plaintiff’s attempt to show that Quiktrip’s 
policies and procedures are confusing such that an expert is required to establish a potential 
violation is unconvincing.  The apparently conflicting deposition testimony Plaintiff cites is the 
same evidence Plaintiff can present to the jury.  An expert witness is not required to help the jury 
weigh this evidence as it does not require scientific or technical knowledge.  And, similar to the 
Court’s discussion of Opinion 3 above, the Court is not convinced that the issue of whether 
Quiktrip violated its own upkeep walk procedures is relevant to the ultimate issue in this case. 
As such, Mr. Janson’s Opinion 5 will also be excluded. 
    Opinions 6 and 7 are speculative, and Mr. Janson’s Report provides no principle or 
methodology by which he arrived at these opinions.  Mr. Janson does not explain what scientific 
or technical basis he used to arrive at his opinion that a proper upkeep walk would have 
prevented Plaintiffs fall.  The same is true for his opinion that Plaintiffs fall was caused by the 
unreasonably dangerous condition of the steps.  Plaintiff has made no other attempt to establish 
that Mr. Janson used recognized principles or methodologies to arrive at these speculative 
conclusions.  Because Plaintiff has failed to show by a preponderance of evidence that Mr. 
Janson arrived at his opinions by using reliable principles and methods, these opinions will also 
be excluded. 
                                Conclusion 
    Based on the foregoing analysis, all of Mr.  Janson’s opinions, testimony, and report will 
be excluded. 
    Accordingly, 
    IT IS HEREBY ORDERED that Quiktrip Corporation’s Motion to Exclude Expert 
Report, Testimony, and Opinions of Christopher E.  Janson (ECF No. 32) is GRANTED. 
    Dated this 29th day of December, 2023. 

                                           Solo      few 
                                     JOHN/4¥/ ROSS  a 
                                     UNITED STATES DISTRICT JUDGE