United States District Court, D. Maryland
PENNY S. RICE, et al., Plaintiffs,
SALONCENTRIC INC., Defendant.
Stephanie A. Gallagher, United States District Judge.
Penny S. Rice and Russell Rice filed an Amended Complaint
against Defendant SalonCentric, Inc.
(“SalonCentric”), seeking money damages in
connection with injuries Mrs. Rice suffered at a SalonCentric
store. ECF 5. SalonCentric has filed a Motion for Summary
Judgment/ Daubert Motion to Exclude Testimony of
Plaintiffs' Proposed Expert (“the Motion”).
ECF 19. This Court has considered the Motion, along with
Plaintiffs' Opposition, ECF 22, and SalonCentric's
Reply, ECF 23. The issues have been fully briefed, and no
hearing is necessary. See Local R. 105.6 (D. Md.
2018). For the reasons that follow, as to the
Daubert issue, I will grant the Motion in part and
deny it in part, and I will deny summary judgment.
basic facts surrounding this incident are undisputed. On
November 17, 2015, Penny Rice entered the SalonCentric store
in Frederick, Maryland, to shop for beauty products. ECF 19-1
at 5. As she removed a product from a shelf, the entire
shelving unit fell on top of her, causing her
injury. See Id. at 6. The shelving unit
was not anchored to the wall or floor at the time of the
incident. See ECF 23 at 1 (“SalonCentric is
not liable for the predecessor corporation's failure to
bolt the shelving unit to the wall or floor.”).
parent company, L'Oréal USA S/D, Inc.
(“L'Oréal”), had purchased the
Frederick, Maryland store, along with fourteen other
locations, from Columbia Beauty Supply, Inc.
(“CBS”) in 2008. ECF 19-2 (Sharnsky Aff.) ¶
3. In the Purchase Agreement, CBS represented and warrantied
that the “buildings, fixtures and improvements thereon
(i) are in good operating condition without structural
defects. . . and no condition exists requiring material
repairs, alterations, or corrections, and (ii) are suitable
and sufficient in all respects for their current uses.”
See Id. ¶ 4. L'Oreal did not inspect the
Frederick store prior to purchase, Id.
Blank has managed the Frederick store, for its various
corporate owners, since 2001. ECF 19-3 (Blank Depo.) at
11:13-21. Blank described the shelving unit that fell on Mrs.
Rice as a white peg-board gondola with attached shelves.
Id. at 30:10-31:13. Blank testified that the same
shelving unit had been in place since 2001. Id. at
34:4-35:8. Store employees regularly rearranged the shelves
on the unit, which involved lifting the individual shelves
out of the peg-board and replacing them in accordance with
merchandise display plans sent by SalonCentric. Id.
at 33:16-21; 37:6-15; 131:5-133:3, 136:9-137:14. Blank had
never had any other customer injury take place in her store,
and never personally inspected the shelving unit itself.
Id. at 160:2-12, 160:16-21.
other store employees, in addition to Blank, testified that
they routinely stocked and moved the shelves on the unit, and
never detected any movement or instability. See ECF
19-4 at 62:15-20, 70:7-71:1; ECF 19-5 at 18:6-15.
retained Gregory Harrison, Ph.D., P.E. to provide expert
testimony. Dr. Harrison submitted an expert report on January
18, 2019 and a supplemental report on June 25, 2019, and
provided deposition testimony on May 16, 2019. ECF 19-8, ECF
19-9, ECF 19-10. Dr. Harrison reviewed materials submitted
about the incident, and made an informal visit to the
Frederick, Maryland store, with a friend, before writing his
report. ECF 19-8 at 4-5. During that visit, Dr. Harrison did
not disclose his identity to store management, and inspected
a shelving unit he then believed to be the one that had
injured Mrs. Rice, later learning that it was the wrong unit.
ECF 19-9 at 33:17-34:6, 35:8-18, 35:19-36-12 (answering
“correct” when asked if he believed it was the
same unit that had fallen over). Dr. Harrison never inspected
the actual unit that fell on Mrs. Rice. Id. at 14-19
(answering “No” when asked if he has requested to
go back and inspect the unit that fell over). Essentially,
Dr. Harrison opined that the failure to bolt the shelving
unit to the wall at installation created an unsafe condition,
and that SalonCentric breached its duty to inspect the unit
regularly to ensure customer safety. ECF 19-8; ECF 19-10 at
retained Garry Brock, Ph.D., to provide expert testimony on
its behalf. Dr. Brock opined, in relevant part, that there
would be no reason for SalonCentric to inspect the shelving
unit, in the absence of any indication that it had been
improperly installed. ECF 19-11 at 175:1-176:6. Dr. Brock
testified that, in order to determine whether the shelving
unit had been anchored to the wall, the entire shelving unit
would have had to be disassembled. Id. at 197:2-9.
Dr. Brock agreed with Dr. Harrison that anchoring the unit to
the wall would have prevented the accident. ECF 22-1 at 8-9;
see also ECF 19-11. at 150:10-14;
LEGAL STANDARD FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party bears the burden of
showing that there is no genuine dispute of material facts.
See Casey v. Geek Squad, 823 F.Supp.2d 334, 348 (D.
Md. 2011) (citing Pulliam Inv. Co. v. Cameo Props.,
810 F.2d 1282, 1286 (4th Cir. 1987)). If the moving party
establishes that there is no evidence to support the
non-moving party's case, the burden then shifts to the
non-moving party to proffer specific facts to show a genuine
issue exists for trial. Id. The non-moving party
must provide enough admissible evidence to “carry the
burden of proof in [its] claim at trial.” Id.
at 349 (quoting Mitchell v. Data Gen. Corp., 12 F.3d
1310, 1315-16 (4th Cir. 1993)). The mere existence of a
scintilla of evidence in support of the non-moving
party's position will be insufficient; there must be
evidence on which the jury could reasonably find in its
favor. Id. at 348 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)). Moreover, a
genuine issue of material fact cannot rest on “mere
speculation, or building one inference upon another.”
Id. at 349 (quoting Miskin v. Baxter Healthcare
Corp., 107 F.Supp.2d 669, 671 (D. Md. 1999)).
summary judgment shall be warranted if the non-moving party
fails to provide evidence that establishes an essential
element of the case. Id. at 352. The non-moving
party “must produce competent evidence on each element
of [its] claim.” Id. at 348-49 (quoting
Miskin, 107 F.Supp.2d at 671). If the non-moving
party fails to do so, “there can be no genuine issue as
to any material fact, ” because the failure to prove an
essential element of the case “necessarily renders all
other facts immaterial.” Id. at 352 (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Coleman v. United States, 369 Fed.Appx. 459,
461 (4th Cir. 2010 (unpublished)). In ruling on a motion for
summary judgment, a court must view all of the facts,
including reasonable inferences to be drawn from them,