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Anderson v. Home Depot U.S.A., Inc.

United States District Court, D. Maryland, Southern Division

May 14, 2017

JENNIFER ANDERSON, Plaintiff,
v.
HOME DEPOT U.S.A., INC., Defendant.

          MEMORANDUM OPINION

          GEORGE J. HAZEL United States District Judge.

         Plaintiff Jennifer Anderson brings this negligence action against Defendant Home Depot. U.S.A.. Inc. for injuries sustained after a metal bracket fell on Plaintiffs head while she was shopping in Defendant's store. Presently pending before the Court is Defendant's Motion for Summary Judgment. ECF No. 59. Defendant's Motion to Strike Plaintiffs Expert Disclosure and Bar Testimony, ECF No. 65. and Defendant's Motion to Seal. ECF No. 64. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons. Defendant's Motion for Summary Judgment is denied, in part, and granted, in part. Defendant's Motion to Strike is granted, and Defendant's Motion to Seal is granted, in part, and denied, in part.

         I. BACKGROUND

         A. The Incident

         The following facts are undisputed and presented in the light most favorable to Plaintiff. Anderson visited the Home Depot store in Waldorf. Maryland on the evening of October 30. 2011. ECF No. 59-2 at 3.[1] Anderson was there to purchase a wire ClosetMaid pantry shelf, hi. at 3-4. She had installed many ClosetMaid shelves before and was familiar with the product. See id, at 4. When Anderson arrived at the store, it was "very empty" and near closing time. hi. Anderson proceeded directly to find the pantry shelves. Id. When Anderson entered the correct aisle, she approached a bin within a larger bay area where the ClosetMaid products were located. Id. at 5: see ECF No. 62-14 at 2; F.CF No. 62-6 at 2-5. The shelves were sitting in a flat bin about eight feet long and three-and-a-half feet off the ground. See ECF No. 62-4 at 2. The bin had a lip around it. about three or four inches tall, with prices listed on the lip. See id; ECF No. 59-2 at 8. The bin contained three wire shelving products, approximately six feet tall, positioned upright and leaning backwards against the wall. See ECF No. 62-6 at 2. Flat shelving pieces were sitting on the left side of the bin. small wire pantry shelves were in the middle, and large wire pantry shelves were on the right side of the bin. ECF No. 59-2 at 5-7. The small and large shelves had multiple tiers and were partially stacked on top of one another. .See ECF No. 62-6 at 2: ECF No. 59-2 at 7.

         Several inches above the shelving products was a display shelf, fully assembled, so that customers could see what the shelving looked like .when it was installed. ECF No. 59-3 at 2: ECF No. 59-5 at 6-8. The display shelf was comprised of a long vertical track, approximately six feet long, which was affixed to the wall. See ECF No. 59-5 at 8. Five twelve-inch long, triangle-shaped, metal brackets hooked into the track, each about sixteen inches apart. See id.: ECF No. 62-4 at 2; ECF No. 59-8 at 3. A ventilated wire shelf sat on top of the metal brackets. See ECF No. 59-3 at 2. According to Home Depot, no merchandise or overstock was supposed to be stored on the display shelf. ECF No. 59-5 at 15. Defendant also contends that if the shelf were installed correctly, it "would be a pretty hard hit to dislodge [the shelf] out of the metal bracket." ECF No. 59-5 at 9.[[2]]

         Anderson selected a smaller pantry shelf from the middle of the bin. ECF No. 59-2 at 6-7. She did not move anything else in the bin. Id. at 7. No other person was in the aisle with Anderson at the time. Id. at 4. Anderson reached up and grabbed the bottom of the shelf to gently lift it up over the lip and out of the bin. Id. at 7. The wire shelf she grabbed came free of the ones beneath it. and as Anderson was lifting the shelf, she "felt the top of it tap something." Id. Anderson looked up and saw a metal bracket heading towards her. Id. The bracket struck Anderson's head, nose, cheek, and shoulder. Id. at 13. Photographs of the display shelf, taken after the incident, show four metal brackets on the vertical track of the display shelf, with the right-most bracket missing. See ECF No. 62-6 at 4: ECF No. 59-3 at 2. Although the bracket was kept initially. Home Depot does not know what ultimately happened to the bracket. See ECF No. 62-5 at 6.

         Anderson filed a customer incident statement with Assistant Store Manager Phillip Yates at 7:50 p.m. ECF No. 62-2 at 2. The statement indicates that "Ms. Anderson was shopping in closet maid area, when she lift[ed] pantry rack it hit brace off top rack display. Brace came down and hit customer in top of head and left cheek. . . . Customer will go to Souther[n] MD Hospital." Id. The incident statement describes Anderson's injuries: "[p]retty bad headache and very nau[seous]. Bruise to left cheek and very red and swelling on top right portion of head. Also bruise on bridge of nose. Feels tingly in face, and sore." Id.

         B. Home Depot Plans and Procedures

         The layout and setup of the Home Depot product bays are guided by "planograms." which are visual diagrams published by Home Depot. See ECF No. 62-4 at 2-3; ECF No. 62-5 at 18. The particular planogram for the pantry shelf bay was titled "6 Bay - 99 - Closet Storage -Wire Shelving." and dated effective October 14. 2011. ECF No. 62-4 at 2-3. The planogram depicts the dimensions of various areas within the product bay. a list of inventory, and the intended placement of the products. The planogram also includes some "safety text" at the bottom, which includes such instructions as "fu]se a toe beam and bolted safety beam or safety cable to secure vertically stored shelving" and "[a]ssembled closet, cabinet, and shelving display units must be secured to the back wall .. ." hi. at 2. The planogram was used in both the installation or placement of the display shelf, and in the stocking of product merchandise within the bay. See ECF No. 62-5 at 18; ECF No. 62-7 at 4. While the vendors that would initially "do a set" would not "need much assistance from the store personnel, " ECF No. 62-5 at 16. a Home Depot store manager would "sign oft" on it. ECF No. 62-5 at 19, Yates explains that "[n]ormally when a set is done . . . whoever did the set would go over it with whoever the manager is on duty and if it would be me or whomever, just go over everything and. you know, show the planogram and everything is correct, if they're missing anything, they'll let us know, and so on." ECF No. 62-5 at ¶ 8.[3]

         Home Depot also publishes "Standards for Merchandise on Floor or Shopping Level." ECF No. 62-9 at 2. Among other matters, these standards address "securing merchandise." which includes providing for the use of cables or beams to prevent front-facing merchandise, such as shelving units, from falling forward. Id. At all times relevant to the action. Home Depot employees completed a daily "Store Readiness Checklist Report." see ECF No. 62-10 at 2-6. and did a "safety walk." ECF No. 62-15 at 4. The safety walk took about 8-10 minutes per aisle. ECF No. 62-15 at 4. These readiness checks did not. however, require the employees to climb up and actually physically inspect the displays. See ECF No. 62-7 at 8. All the inspections were done visually and from ground level. ECF No. 59-5 at 12. As employee Zachary Jewell explains, "[i]t"s more us walking by and doing a visual and seeing, hey, there's something dangling or there's something that doesn't look right on the display, and seeing something like that, then we go from there." ECF No. 62-7 at 8. ECF No. 62-10 at 4-5.

         The Store Readiness Checklist is a five-page spreadsheet covering seventeen different departments, including hardware, kitchen & bath, decor, and others. ECF No. 62-10 at 2-6. The employee completing the Checklist writes "Y" or "N" in response to a series of conditions. For example, in D59 Decor, the employee must verify that the "fa]isles [are] clear of empty pallets, debris, water." that there is "no leaning or protruding merchandise." and that the "hand stacked merchandise [is] in overhead stable and no higher than 4 ft." ECF No. 62-10 at 5. The Checklist from October 30. 2011. the day of the incident, indicates all "Y" responses and zero "N" responses. Id., at 2-6.

         In this action. Plaintiff alleges claims of negligence and premises liability against Home Depot. See ECF No. 13. Home Depot has moved for summary judgment. ECF No. 59. In opposition to Defendant's Motion for Summary Judgment. Plaintiff has provided the preliminary report of J. Terrence Grisim. who Plaintiff has designated as an expert in retail safety. ECF No. 62-13 at 2 6. Defendant has moved to strike Plaintiffs expert disclosure and prevent Grisim from testifying. ECF No, 65. Before addressing whether Plaintiff has created a genuine issue of material fact, it is appropriate to first consider the admissibility of Plaintiffs expert testimony.

         II. MOTION TO STRIKE EXPERT TESTIMONY

         A. Standard of Review

         Federal Rule of Evidence 702, which governs the admissibility of expert testimony. 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:

(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 ...

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