IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DUANE ALSIP as Administrator 

and Personal Representative of 

the Estate of Emma Alsip,

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Plaintiff,

vs. CIVIL ACTION NO. 14-476-CG-M

WAL-MART STORES EAST, LP 

and SOVEREIGN COMMERCIAL 

MAINTENANCE COMPANY, 

LLC.,

Defendants.

ORDER

This matter is before the court on the motion of Wal-Mart Stores East, L.P. 

(“Wal-Mart”) to exclude the expert testimony of Russell Kendzior (Doc. 71), 

Plaintiff’s opposition thereto (Doc. 81) and Wal-Mart’s reply (Doc. 88). For the 

reasons explained below, the court finds that Wal-Mart’s motion should be granted.

BACKGROUND

This case arises from a slip and fall that occurred on Wal-Mart’s premises on 

April 23, 2013. On that date, Emma Alsip slipped, during rainy conditions, on the 

yellow painted crosswalk near the entrance to a Wal-Mart Super Store in Foley, 

Alabama. (Doc. 44, ¶¶ 12-14). Plaintiff alleges that the painted crosswalks were 

negligently and/or wantonly maintained so that it was not reasonably safe for 

business invitees. (Doc. 44 ¶ 16). More specifically, Plaintiff asserts that the 

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painted area had not been painted recently, or did not contain an anti-slip 

substance in the paint. (Doc. 44, ¶ 17). Plaintiff claims that Defendants failed to 

apply a proper paint mixture because it did not include an abrasive additive to 

make the paint slip resistant when wet, thereby creating an unreasonably safe 

walkway. (Doc. 44, ¶¶ 20, 24).

Plaintiff’s expert, Russell Kendzior, opines that: the painted striped walkway 

that Ms. Alsip slipped and fell on “represented an unreasonably dangerous 

condition” and “was not in compliance with industry standards for being slip 

resistant because the paint did not contain an appropriate aggregate material, or 

the aggregate material had worn off in the three years since the lot was painted.” 

(Doc. 82-2, p. 5; Doc. 82-1, ¶ 19). Defendant Wal-Mart moves to exclude Kendzior’s 

expert testimony on the basis that his opinions are not sufficiently based on reliable 

facts, methods, procedures, or testing results such that they could be deemed either 

relevant or reliable under Daubert.

LAW

The United States Supreme Court, in Daubert v. Merrell Dow 

Pharmaceuticals Inc., 509 U.S. 579 (1993), found that scientific expert testimony is 

admissible only if the proffered testimony is both relevant and reliable. “[A] district 

court judge is to act as a ‘gatekeeper’ for expert testimony, only admitting such 

testimony after receiving satisfactory evidence of its reliability.” Dhillon v. Crown 

Controls Corporation, 269 F.3d 865, 869 (7th Cir. 2001); see also U.S. v. Majors, 196 

F.3d 1206, 1215 (11th Cir. 1999). However, “it is not the role of the district court to 

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make ultimate conclusions as to the persuasiveness of the proffered evidence.” 

Quiet Technology DC–8, Inc. v. Hurel–Dubois UK Ltd., 326 F.3d 1333, 1341 (11th 

Cir. 2003). “[A] district court's gatekeeper role under Daubert is not intended to 

supplant the adversary system or the role of the jury.” Id. (citing Maiz v. Virani, 253 

F.3d 641, 666 (11th Cir. 2001)). “Quite the contrary, ‘[v]igorous cross-examination, 

presentation of contrary evidence, and careful instruction on the burden of proof are 

the traditional and appropriate means of attacking shaky but admissible evidence.’ 

” Id. (quoting Daubert, 509 U.S. at 596, 113 S.Ct. at 2798).

Rule 702 of the Federal Rules of Evidence provides:

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 methods; and

(d) the expert has reliably applied the principles and methods to the 

facts of the case.

FED. R. EVID. 702. The rule compels district courts to “conduct an exacting analysis 

of the foundations of the expert opinions to ensure they meet the standards for 

admissibility under Rule 702.” United States v. Abreu, 406 F.3d 1304, 1306 (11th 

Cir.2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) 

(internal quotation marks omitted)). Accordingly, under Rule 702, “this Court has 

an obligation to screen expert testimony to ensure it stems from a reliable 

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methodology, sufficient factual basis, and reliable application of the methodology to 

the facts.” Whatley v. Merit Distribution Services, 166 F.Supp.2d 1350, 1353 (S.D. 

Ala. 2001) (citations omitted). 

The Eleventh Circuit requires district courts to engage in a “rigorous threepart inquiry” for assessing the admissibility of expert testimony under Rule 702:

Trial courts must consider whether: “(1) [T]he expert is qualified to 

testify competently regarding the matters he intends to address; (2) 

the methodology by which the expert reaches his conclusions is 

sufficiently reliable as determined by the sort of inquiry mandated in 

Daubert; and (3) the testimony assists the trier of fact, through the 

application of scientific, technical, or specialized expertise, to 

understand the evidence or to determine a fact in issue.”

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) (quoting City of 

Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1999)). These 

requirements are known as the “qualifications,” “reliability,” and “helpfulness” 

prongs. See id. “[T]he proponent of the testimony does not have the burden of 

proving that it is scientifically correct,” but must establish “by a preponderance of 

the evidence, it is reliable.” Allison v. McGhan Medical Corp., 184 F.3d 1300, 1312 

(11th Cir. 1999) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 

1994)); see also Whatley, 166 F.Supp.2d at1354 (“the proponent of the expert 

testimony has the burden to establish by a preponderance of the evidence that the 

admissibility requirements of Rule 702 are satisfied.”)(citations omitted). Factors 

that may be relevant include:

(1) whether the theory or technique can be (and has been) tested, (2) 

whether the theory or technique has been subjected to peer review and 

publication, (3) in the case of a particular ... technique, the known or 

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potential rate of error, and (4) whether the theory or technique is 

generally accepted by the relevant ... community.

Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010) 

(internal quotation marks and alterations omitted). Additional factors that may be 

taken into account by a district court include:

 (1) Whether the expert is proposing to testify about matters growing 

naturally and directly out of research he has conducted independent of 

the litigation, or whether he has developed his opinion expressly for 

purposes of testifying;

 (2) Whether the expert has unjustifiably extrapolated from an 

accepted to an unfounded conclusion;

 (3) Whether the expert is being as careful as he would be in his 

regular professional work outside his paid litigation consulting;

 (4) Whether the field of expertise claimed by the expert is known to 

reach reliable results for the type of opinion the expert would give.

FED. R. EVID. 702 advisory committee's note to 2000 amendments (internal citations 

omitted).

DISCUSSION

In the instant case, Wal-Mart objects to the expert’s testimony on the basis 

that it is unreliable. Mr. Kendzior states that his opinion is based on the 

depositions, photographs and documents found in this case as well as the industry 

standards he repeatedly cited in his expert report. (Doc. 82-1, ¶ 19). Wal-Mart 

points out that Kendzior did no actual testing of the site and in fact never even 

visited the site to observe or feel the surface in question.

Kendzior states that based on “his extensive experience with the testing of 

painting products, it is patently obvious from the photographs taken soon after the 

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accident what type of paint was used for the striping and whether or not it 

contained the aggregate material necessary to make the paint slip resistant.” (Doc. 

82-1, ¶ 20). Mr. Kendzior explained his conclusion as follows:

As I explained in my deposition, the pictures demonstrate that the 

paint used in the parking lot was your typical line paint – either an 

enamel or epoxy type. One can see this due to the color and the 

appearance of the paint. The photo also shows that the paint was 

durable and was able to last a long time, since it had been almost three 

years since Wal-Mart had last painted the lot. If this line paint had 

contained aggregate, the paint would show a change in the gloss. One 

would actually see little crystals in the material. Aggregate particles 

are readily visible and would have clearly shown in the pictures had 

they been present.

(Doc. 52-1, p. 6). Kendzior further explained that he was not retained by Plaintiff 

until over a year after the incident and that testing done years after the accident 

would not indicate the state of the surface at the time of the accident. (Doc. 52-1, ¶ 

21).

At his deposition, Kendzior testified that the best way to determine whether 

there is aggregate in the paint would have been to test it with a tribometer, which 

would measure the coefficient of friction for the surface. (Doc. 72-1, pp. 45-46). The 

coefficient of friction is a measurement of how slippery a walkway is. (Doc. 72-1, p. 

72). Kendzior explained that the tribometer result would not tell you if there was 

aggregate in the paint, but rather whether the surface was sufficiently slipresistant. (Doc. 72-1, pp. 46). The measurements obtained from an appropriate 

tribometer would definitively show what traction range a particular painted surface 

would fall into. (Doc. 72-1, p. 73). Whether aggregate was applied can be seen with a 

visual inspection. (Doc. 72-1, pp. 46-47). Mr. Kendzior admitted that seeing the 

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surface in person would be better than looking at photographs. (Doc. 72-1, p. 47). 

According to Kendzior, he had never been requested to visit the site. (Doc. 72-1, p. 

49). 

Kendzior explained the specifics of industry standards for slip-resistance for 

walking and/or working surfaces, using a tribometer to take readings to determine 

the measurable risk. (Doc. 72-1, pp. 58-64). If the coefficient of friction on the day 

that Plaintiff fell was .6 or greater wet, then Kendzior would be of the opinion that 

the surface was a “high-traction” surface that was slip-resistant and would 

minimize the likelihood of a slip and fall. (Doc. 72-1, pp. 65-66). Kendzior does not 

know what the coefficient of friction was for the surface in question and cannot say 

what the actual slip-resistance of that area is or whether it would qualify as “high 

traction.” (Doc. 72-1, pp. 52-54). He also does not know if the area would have 

become more or less slip resistant in the passage of time since Plaintiff fell. (Doc. 

72-1, pp. 76-77). However, Kendzior admitted that generally speaking most painted 

asphalt surfaces would get slipperier over time from the weathering process and 

wear and tear. (Doc. 72-1, p. 79).

Kendzior concluded that the surface was not sufficiently slip-resistant 

because the photos indicate that there was no aggregate in the paint and because 

Plaintiff did in fact fall. (Doc. 72-1, pp. 81-82). Kendzior agreed that adding 

aggregate is not the only means of making a surface slip-resistant, cross cut 

grooving, texturing and other means can be utilized. (Doc. 72-1, p. 80). The surface 

could still meet the “high-traction” requirement for a slip-resistant surface without 

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the addition of aggregate to the paint. (Doc. 72-1, p. 82). Mr. Kendzior stated that 

he does not like to use the terms “safe and unsafe” because “[a]nybody can fall on

anything.” (Doc. 72-1, p. 66).

While Kendzior is experienced in testing for slip-resistance and is 

knowledgeable about what coefficient measurements are sufficient to demonstrate 

that the risk of slip and falls has been minimized, his analysis did not involve any 

testing. Moreover, while Kendzior concluded that the surface was unreasonably 

safe, he admits that he cannot tell from his analysis how slip-resistant the surface 

was. He merely determined from looking at photographs that there was no 

aggregate in the painted areas depicted in the photographs and that since Plaintiff 

did in fact fall, it must not have been sufficiently slip-resistant. However, given 

that Kendzior admitted that aggregate in the paint is only one factor that impacts 

slip-resistance and that the surface could be sufficiently slip-resistant without 

aggregate, his opinion is essentially that because Plaintiff fell, it must have been 

slippery. But, as Kendzior admitted, no matter what the level of slip-resistance 

“[a]nybody can fall on anything.”

While there has been no real argument that Kendzior is not experienced or 

knowledgeable on the subject of slip-resistance, “a district court must not simply 

tak[e] the expert's word for it.” Edwards v. Shanley, 2014 WL 4747186, *6 (11th Cir. 

Sept. 25, 2014) (citation and internal quotations omitted). “If admissibility could be 

established merely by the ipse dixit of an admittedly qualified expert, the reliability 

prong would be, for all practical purposes, subsumed by the qualification prong.” Id.

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(quoting United States v. Frazier, 387 F.3d 1244, 1258, 1261 (11th Cir. 2004) (en 

banc)). Here, the expert has performed no tests and the data he reviewed is not, by 

his own admissions, sufficient to reach his stated conclusion. Kendzior’s general 

expert knowledge may be helpful to explain to the jury the factors and 

circumstances that impact the slip-resistance of a surface. However, Plaintiff has 

not shown that his method of determining slip-resistance resulted in a reliable 

determination as to how slip-resistant the surface in question was. Even assuming 

Kendzior’s analysis was sufficient to determine that there was no aggregate in the 

painted crosswalk, that fact is not sufficient information from which a reliable 

conclusion can be reached as to how slip-resistance the surface was. 

Plaintiff has not demonstrated that the expert’s theory or technique has been 

tested or subjected to peer review or is generally accepted. Kendzior’s testimony 

indicated that there are reliable principles and methods that can be used to 

determine slip-resistance, but that he did not use those methods and that even 

those methods may not be reliable if performed more than a year after the time of 

the accident. In other words, according to Kendzior, there is no reliable way of 

determining whether the area in question was sufficiently slip-resistant. The only 

way to have made a reliable determination would have been to test the surface 

within a short time after the accident, which was not done here. In light of all of 

the above, the Court concludes that Kendzior’s conclusions are not based on 

sufficient facts or data or on reliable principles and methods reliably applied to the 

facts of the case.

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CONCLUSION

For the reasons stated above, the motion of Wal-Mart Stores East, L.P. to 

exclude the expert testimony of Russell Kendzior (Doc. 71), is GRANTED.

DONE and ORDERED this 12th day of November, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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