UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

David Hecht

v. Civil No. 05-cv-462-PB

Waterville Development Corporation

O R D E R

 Defendant moves to strike the Plaintiff’s Expert Designation

of David A. Dodge, C.S.P. After an evidentiary hearing on

December 13, 2006 and after consideration of the legal arguments

of the parties the motion is granted. 

Factual Background

Mr. Dodge has a Bachelor of Science (B.S.) degree, has taken

and taught industrial safety courses, has many professional

certifications and memberships and has been a frequent lecturer

on many safety issues, including “slip and fall” accidents. 

Since 1971 he has been employed or self-employed as a “safety

engineer/consultant”. He is a Certified Safety Professional, a

certification that requires a B.S., five years of experience and

successful completion of a two day examination. He has been an

expert witness in court several times and has given dozens of

depositions. 

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Plaintiff engaged Mr. Dodge to investigate the accident and

to determine what was/was not done to treat the ice and snow

hazard. Mr. Dodge interviewed the plaintiff, reviewed weather

records from the New Hampshire State Climatologist and from

national weather services. He also went to the area of the

accident and took photographs. He has in his career developed

safety programs concerning ice and snow for the State of Maine,

Exxon, Mobil, D’Angelos and Burger King. 

The essence of Mr. Dodge’s opinion is: 

1. The area of the fall had ice covered with one inch

of snow; 

2. Ice, untreated, is slippery;

3. “Entities which invite the public to their

premises must maintain the area so that pedestrian walkways

are free of foreseeable hazards”; 

4. “. . . [i]ce and snow is entirely foreseeable in

New Hampshire in January, therefore, timely inspection and

maintenance must be made of the slippery areas”;

5. Protecting invitees requires “that wintertime

pedestrian safety must be approached as a systematic

managerial program and not (be) simply left to the whims of

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nature”; 

6. Public areas must be maintained so they are safe

or cordoned off even during and immediately after a snow

storm. 

7. Ice should be chopped away or sanded and/or

salted; and

8. The area of plaintiff’s accident should have been

inspected and the icy surface treated or cordoned off before

the 12:30 p.m. accident. 

Mr. Dodge has never seen the maintenance logs of defendant

and was unaware of the existence or content of defendant’s safety

program. 

Discussion

1. Timeliness of Disclosure. 

Plaintiff was required to make his expert’s disclosure by

August 1, 2006. The disclosure was not made until September 15,

2006. Plaintiff did not seek an extension informally from 

defendant nor formally from the court. No motion after the

expiration was sought under Fed. R. Civ. P. 6(b). However, he

did seek and was granted an extension for disclosure upon motion

in October. 

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Litigants have a duty to comply with case management orders,

and they fail to do so at their peril. See Torres-Vargas v.

Pereira, 431 F.3d 389, 393 (1st Cir. 2005). “When a party fails

to comply with (the) timetable, the district court has the

authority to impose a condign sanction (including the authority

to preclude late-disclosed expert testimony).” Macaulay v. Anas,

321 F.3d 45, 50 (1st Cir. 2003). 

Whether or not exclusion of an expert’s report would be an

abuse of power requires consideration of

. . . a multiplicity of pertinent factors,

including the history of the litigation, the

proponent’s need for the challenged evidence,

the justification (if any) for the late

disclosure, and the opponent’s ability to

overcome its adverse effects . . . (s)urprise

and prejudice . . . (and) the effect on the

court’s docket . . . .

Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003) (citations

omitted). 

In this case there is no history of disregard of court

orders, no impact on the court’s docket, and no discernible

prejudice to defendant. Since the bulk of the opinion is not

expert opinion plaintiff really doesn’t need it and defendant may

easily overcome any effect. The excuse of “staff neglect” is not

excusable neglect. See Schmidt v. Boggs, 246 B.R. 265, 268 (6th

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Cir. 2000). Were I writing on a clean slate the expert would be

excluded for failure to timely disclose. However, I previously

granted a motion to amend the disclosure date in the plan and I

will not revisit that order. Counsel should be aware that he is

unlikely to get such extensions in the future. 

2. Exclusion under Federal Rule of Evidence 702.

As additional grounds for excluding Mr. Dodge’s proffered

testimony, defendant argues that his testimony fails to satisfy

the criteria for admission under Federal Rule of Evidence 702. 

The rule provides that:

If scientific, technical, or other

specialized knowledge will assist the trier

of fact to understand the evidence or to

determine a fact in issue, a witness

qualified as an expert by knowledge, skill,

experience, training or education, may

testify thereto in the form of an opinion or

otherwise, if (1) the testimony is based upon

sufficient facts or data, (2) the testimony

is the produce of reliable principles and

methods, and (3) the witness has applied the

principles and methods reliably to the facts

of the case. 

In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597

(1993), the Supreme Court held that the Federal Rules of

Evidence, “assign to the trial judge the task of ensuring that an

expert’s testimony both rests on a reliable foundation and is

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relevant to the task at hand.” 

In determining relevance the court considers whether the

proffered opinion would “be helpful to the jury in understanding

the evidence or determining a fact in issue.” Daubert, 508 U.S.

at 591. “Expert testimony on a subject that is well within the

bounds of a jury’s ordinary experience generally has little

probative value.” United States v. Montas, 41 F.3d 775, 784 (1st

Cir. 1994). There simply is no need for an expert when “it

easily can be derived from common sense, common experience, the

jury’s own perceptions, or simple logic.” 29 Charles Alan Wright

& Victor James Gold, Federal Practice and Procedure § 6274

(1997). 

The court does not doubt that Mr. Dodge is an expert on

safety issues. The problem is not his expertise but his opinion. 

He has merely placed an expert sheen on matters well within the

jury’s own ordinary experience and common sense. The report

interweaves legal principles, reported “facts”, common sense and

matters of common knowledge. 

The plaintiff reported as a fact that there was one inch of

snow covered ice in the area of his alleged fall. Every adult in

New England (and most kids) know that untreated ice is slippery;

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1Mr. Dodge did not know defendant did have a ice, snow

safety management plan and offered no opinion on whether it met

professional safety requirements and/or whether it was complied

with on the day of the accident.

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that ice and snow is foreseeable in New Hampshire in January; and

that it makes sense for a business to have an ice/snow treatment

plan including exclusion from the area and/or treatment. The law

requires reasonable steps to protect invitees from foreseeable

and known hazards. In short, every significant area of his

report is a matter of common sense or a legal standard.1 

The opinion adds nothing to and is an inappropriate

substitute for the jury’s own experience and common sense. The

motion (document no. 13) to preclude the expert testimony of Mr.

Dodge is granted. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 16, 2007

cc: Danielle Leah Pacik, Esq.

 Thomas B.S. Quarles, Jr., Esq.

 Paul A. Rinden, Esq.

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