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Zeller v. J.C. Penney Company

March 31, 2008


The opinion of the court was delivered by: Donio, Magistrate Judge


In this action, Plaintiff seeks damages as a result of injuries sustained by Shirley Zeller when she fell at a J.C. Penney hair salon in Deptford, New Jersey, on October 14, 2004. Ms. Zeller, who at the time of the incident was 76 years old, filed her complaint in the Superior Court of New Jersey, Camden County, on April 11, 2005, alleging that her injuries were "caused solely or contributed to substantially by the reckless[ness], negligence and/or carelessness" of Defendant J.C. Penney Corporation, Inc.*fn1 See Petition of Removal [Doc. No. 1], Ex. A (Complaint), at ¶ 3. Defendant filed a notice of removal on May 16, 2005 based upon diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(1) and 28 U.S.C. § 1441(a). See Notice of Removal [Doc. No. 1].

The matter presently before the Court concerns the admissibility of the proposed expert testimony of Plaintiff's liability expert, Brent A. Wallace.*fn2 Defendant moves to preclude the testimony of Mr. Wallace on the grounds that Mr. Wallace is not qualified to render an expert opinion as to Defendant's liability under the standards enunciated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993), and that Mr. Wallace's opinion constitutes a net opinion. The Court conducted an in limine hearing in connection with this matter on October 29, 2007, at which time Plaintiff presented the testimony of Mr. Wallace. At the conclusion of Mr. Wallace's testimony, Plaintiff's counsel conceded that the testimony exceeded the four corners of the Wallace report and that the Wallace report "has problems," and made an oral application to amend the Wallace report based upon Mr. Wallace's testimony at the hearing. See T. at 77:20-78:8, 80:5-10.*fn3 The Court granted leave to file supplemental briefing with respect to Plaintiff's oral request to amend the Wallace report. On December 11, 2007, Defendant filed a supplemental brief [Doc. No. 33] in support of its motion to preclude the testimony of Mr. Wallace, and Plaintiff filed a formal motion [Doc. No. 34] seeking leave to amend the Wallace report in accordance with Mr. Wallace's testimony during the in limine hearing. Defendant filed opposition [Doc. No. 35] to Plaintiff's motion on December 23, 2007. Having reviewed the submissions of the parties, and the testimony from the October 29, 2007 in limine hearing, and for the reasons that follow, the Court grants Defendant's motion to preclude the testimony of Mr. Wallace, and dismisses as moot Plaintiff's motion to amend the Wallace report.*fn4

On or about April 12, 2007, Plaintiff named Mr. Wallace as a liability expert in this matter. See Certification of Howard N. Sobel dated June 27, 2007 [Doc. No. 27] (hereinafter "Sobel Cert."), at ¶ 5. By letter dated May 23, 2007, Plaintiff's counsel provided a copy of the Wallace report to defense counsel, along with Mr. Wallace's curriculum vitae. Id. at ¶ 6. According to Mr. Wallace's curriculum vitae, he is currently the owner of the Skye Hair Studio in Maple Shade, New Jersey, where he is also a hair designer. Id., Ex. F (Curriculum Vitae of Brent A. Wallace). Prior to opening Skye Hair Studio, Mr. Wallace was a hair designer at Biaggio Salon in Marlton, New Jersey, from April 2006 to August 2006, and a hair designer at Bernard's Hair Designs and Day Spa in Cherry Hill, New Jersey from December 1995 through April 2006. Id. Mr. Wallace was also an "educator" for KMS Research, Inc. in Redding, California, from March 1999 through September 2001, a "shampoo/assistant" at Elegance Hair Salon in Northfield, New Jersey, from May 1994 through September 1995, and a site supervisor for Spectaguard, Inc. in Wynnewood, Pennsylvania, from March 1990 until August 1994. Id. Mr. Wallace's curriculum vitae contains no information about his education, and provides no further information about any other positions of employment he has held.

See id. In addition, Mr. Wallace's curriculum vitae contains no information regarding any training on site safety in hair salons.

T. at 48:8-10.

At the in limine hearing, Mr. Wallace supplemented his curriculum vitae by describing the safety training that he has received in his various positions of employment. Mr. Wallace testified that he was trained in site safety when he was hired as a shampoo assistant at Elegance Hair Salon, where the clientele was generally over the age of sixty. T. at 12:11-15, 13:24-14:1, 14:20-15:14. The salon was owned by David Hart, who trained Mr. Wallace to walk "elderly" clients to the various areas of the salon to avoid any hair mats underneath the chairs, perm rods on the floor, carts, steps, or other obstacles. T. at 14:2-11; 14:20-15:4. After Elegance Hair Salon closed, Mr. Hart began working at Bernard's, a salon in Cherry Hill, New Jersey, and he "brought" Mr. Wallace to Bernard's. Id. at 16:12-15. At Bernard's, Mr. Wallace was trained by Mr. Hart again, as well as the salon owner and the head of the salon shampoo department, on "walking the clients to and from every station, the safety of clients, draping, caping, getting clients coffee and such like that." Id. at 16:15-22. At the same time Mr. Wallace worked at Bernard's, he was also employed by KMS Hair Products, where he received training on how to walk clients up stairs to a stage, how to help them into their chair, and how to adjust the chair so that clients would not fall out of the chair. Id. at 17:9-20.*fn5

Mr. Wallace also testified that, in addition to the safety training he received through his employment, he received safety training through vocational school. In particular, Mr. Wallace testified that his vocational school instructors taught about "escorting clients into the salon and into their areas, how to seat them properly in the shampoo areas and removing them from shampoo bowls, how to position their head in the shampoo bowls to avoid neck injuries and things like that." T. at 18:14-21. He further testified that his vocational school instructors taught him to always walk elderly clients through the salon "because they have a tougher time getting around and because of the obstacles that occur in the salon[.]" T. at 18:25-19:3; 22:19-25 ("Usually I would put my arm out or I would put my hand along their back . . . it was taught to me by both of my instructors at Camden County VoTech."). Mr. Wallace also testified that he learned through vocational school that every client, whether elderly or not, is to be assisted throughout a hair salon. T. at 53:16-54:4. In addition, Mr. Wallace testified that he regularly reads magazines of the hair salon industry, and that those trade publications contain articles regarding the responsibility of a hair stylist to elderly clients, which is that the stylist should "see them through every station of the salon[.]"*fn6 T. at 20:15-21:10, 36:15-25. The protocol set forth in these magazines, Mr. Wallace testified, is consistent with his training at vocational school, and with the training he received from his mentors at Elegance Hair Salon and Bernard's. Id. at 21:11-16.

In his report, Mr. Wallace does not opine on the cause of injuries to Shirley Zeller. The Wallace report states in its entirety:

After care [sic] review of the Zeller case file it is my professional opinion that implied standard protocol for handling a person such as Mrs. Zeller would be as followed. [sic] Upon arrival to the salon a staff member would assist the client to the various stations of the salon. Whether that be the seating area, shampoo or styling area. Careful attention is always shown to our elderly clients due to their fragile nature. Our staffs [sic] responsibility is to accompany our clients to their designated area. It is also standard to make sure with certainty that the styling chair is lowered completely as not to interfere with a clients [sic] exit from the chair. Our staff members also help to robe and unrobed [sic] any clients we feel may have trouble getting in and out of the garment.

In my 13 yrs as a Hair Designer and Owner caring for my clients from the time they enter my salon until the time they leave has always been standard place.

Sobel Cert., Ex. E (Wallace report). Mr. Wallace conceded at the in limine hearing that his report does not state an opinion as to any conduct on the part of J.C. Penney that was "wrong." T. at 39:1-6. Further, the Court notes that the Wallace report does not describe what information Mr. Wallace reviewed in rendering his opinion in this matter.*fn7

Mr. Wallace did not proffer his theory as to the cause of injuries to Shirley Zeller until the in limine hearing, where he testified as follows:

A: My understanding of what had happened was Mrs. Zeller was getting out of the chair and she had fallen getting out of the chair going from ...

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