Safety Expert’s Testimony on Clothing Rack Lighting Admitted
Posted on June 9, 2025 by Expert Witness Profiler
This dispute involves injuries sustained by Plaintiff Virginia English (“Plaintiff”) when she fell in a Hollister Co. store at the Greenwood Mall in Bowling Green, KY (the “Hollister Store”). English alleged that she was looking at some clothes while walking out of the right side of the store when she tripped over a clothes rack and fell.
Defendants Abercrombie and Fitch Stores, Inc. d/b/a Hollister Co. and Abercrombie & Fitch Management Co. (collectively, the “Abercrombie Entities” or “Defendants”) filed a motion to exclude the testimony of David Johnson (“Johnson”), English’s expert witness. Meanwhile, English filed a motion to exclude the testimony of Defendants’ expert, Randy Gray (“Gray”).
Safety Expert Witness
David Johnson is a board certified safety professional. He performs forensic engineering and safety expert witness work for attorneys and insurance adjusters for cases involving slips, trips, missteps and falls, falls from elevation, stairway falls and industrial accidents.
Randy Gray has over 25 years of conducting OSHA inspections of workplaces based on federal and state regulations, while being employed at Kentucky Labor Cabinet, Division of Compliance, Occupational Safety & Health. He has also worked fifteen years in the private sector as the President of Grayhawk Advantage, Inc., where he provides expert witness investigation services and reports regarding hazardous workplace conditions that caused injuries to clients.
He has a Bachelor of Science degree from Murray State University in Occupational Safety & Health, a Masters degree in Science from Murray State University in Occupational Safety & Health, and twenty-five years of specialized training courses at the Occupational Safety and Health Training Institute.
Discussion by the Court
David Johnson
English offered the opinion of David Johnson to show that the clothing rack “formed a low profile, low contrast, inconspicuous obstruction in a foreseeable passageway/walkway that was unsafe and unreasonably dangerous.”
Defendants asserted that Johnson’s report is not reliable because it is based on his own speculation and on incomplete information. Defendants also asserted that Johnson’s testimony is unreliable because “his own testimony contradicts his assumptions,” and that “Johnson cites no applicable codes or regulations with which the clothing rack failed to comply with.”
Reliability
However, the Court found nothing wrong with Johnson’s assumption that English fell when “her foot be[came] stuck and then unstuck under the clothing rack.” It did not constitute “subjective belief based on speculation and incomplete information” because Johnson did not fabricate that English’s foot became stuck under the rack. In fact, English’s medical records state that she “sustained a Type III RTC from falling when her foot caught on a rolling clothes hanger in the store.” Therefore, the argument that Johnson’s opinion is based on unsupported speculation is unpersuasive, as Johnson’s assumption that English fell when her foot became stuck under the clothing rack is supported by evidence in the record.
Defendants challenged Johnson’s opinion that the clothing rack constitutes a platform or a display base because “the feet of clothing rack were below knee-level and/or under three feet in height.” Defendants also argued that because the feet of the rack cannot be separated from the clothing rack, Johnson’s opinion must be excluded as it is in direct contradiction of his own testimony and would also mislead the jury and confuse the issues. And Defendants challenged Johnson’s opinion because he opines that Hollister did not violate any applicable codes, and because he based his opinion on the existence and placement of the clothing rack, not whether the clothing rack was defective.
The Court held that the objections raised by Defendants regarding Johnson’s reliability go to the weight that should be given to the expert’s opinions, and not to their exclusion.
Relevance
Defendants asserted that Johnson’s opinion regarding the lighting of the clothing rack was irrelevant because “he did not observe the rack with the additional holiday lighting that was placed.”
However, the Court held that Johnson relied upon the testimony taken in the case, including of the store manager who testified that the store is dim, dimmer than most other stores in the mall, and that the lighting can create shadows on the floor.
Moreover, the fact that Johnson did not observe the rack with the additional holiday lighting is a potential limitation to his opinion, the weight of which can be decided by a jury.
Defendants also argued that Johnson’s opinion that the rack was unexpected would confuse the jury because the Sixth Circuit has already taken judicial notice that clothing racks are expected in department stores during the holiday shopping season. The Court ruled that Johnson’s opinion about the rack being unexpected is specific to the facts of this case, not that all clothing racks in a store are unexpected.
Randy Gray
Defendants retained Randy Gray “to render an opinion regarding the December 18, 2022, fall accident of English.”
Qualification
With twenty-five years of specialized training courses at the Occupational Safety and Health Training Institute, Gray was found qualified by the Court under Rule 702 and Daubert to offer expert opinions on whether an unsafe and dangerous condition existed at Hollister, and whether Hollister failed to inspect, maintain, remedy, or warn of that condition.
Relevance and Unduly Prejudicial
English also argued that Gray’s opinion that Defendants did not violate any Codes of Federal Regulation “will not assist the trier of fact and its probative value is substantially outweighed by the danger or confusing the issues or misleading the jury.”
In this case, the Court held that Gray’s testimony will assist the trier of fact in determining whether a dangerous condition existed at the time of English’s fall. First, although OSHA standards apply to employees, Gray’s opinion could still help jurors determine whether an unsafe condition existed at the time of English’s fall. Second, the objections raised by English go to the weight that should be given to the expert’s opinions, and not to their exclusion.
Since this opinion is not unfair or inappropriate, the jury would be within its discretion to credit Gray’s testimony to conclude that a dangerous hazard did not exist.
Held
- The Court denied Hollister’s motion to exclude David Johnson’s testimony.
- The Court denied English’s motion to exclude Randy Gray’s testimony.
Key Takeaway:
An expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. Stated another way “an opinion may be based on facts that are ‘assumed,’ or ‘hypothetical’ at the time of the report, provided that those facts are ultimately ‘established’ by other, independent evidence.” Therefore, the argument that Johnson’s opinion is based on unsupported speculation is unpersuasive, as Johnson’s assumption that English fell when her foot became stuck under the clothing rack is supported by evidence in the record.
Case Details:
| Case Caption: | English V. Abercrombie & Fitch Stores, Inc. Et Al |
| Docket Number: | 1:23cv128 |
| Court Name: | United States District Court, Kentucky Western |
| Order Date: | June 06, 2025 |
