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Date: 05-19-2023

Case Style:

Jerry Michael Gyrion, Jr. v. Dillon Companies, LLC , d/b/a King Soopers, a/k/a D620 Kroger Central/King Soopers

Case Number: 22-CV-98

Judge: Christine M. Aruello

Court: United States District Court for the District of Colorado (Denver County)

Plaintiff's Attorney:

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Defendant's Attorney:

Description: Denver, Colorado personal injury lawyer represented Plaintiff who sued defendants on premises liability negligence theories.

This is a slip and fall case. Defendant Dillon Companies, LLC, owns and operates a grocery store in the Columbine Knolls Village shopping center in Littleton, Colorado. (Doc. # 47-5 at 1.) Mr. Gyrion, a truck driver, made a delivery to Defendant's store on December 7, 2019. (Doc. # 6 at ¶¶ 8-9) Upon exiting his truck, Mr. Gyrion alleges that he slipped and fell on ice that had accumulated in the loading dock area. (Doc. # 6 at ¶ 13.) Mr. Gyrion initiated this action in December 2021, alleging one claim pursuant to the Colorado Premises Liability Act (“CPLA”). (Doc. # 6.)

On December 30, 2022, Defendant filed a Motion for Summary Judgment in which it argued that it was not a statutory “landowner” under the CPLA of the area where Mr. Gyrion fell. (Doc. # 47 at 8-11.) The Court concluded that, although the parties agreed that nonparties had contractual obligations related to maintenance and snow removal of the relevant area, summary judgment was not appropriate because material facts remained genuinely disputed (Doc. # 80 at 7-8.) As it relates to the instant Motions, the Court noted a dispute regarding the exact location of Mr. Gyrion's fall-specifically whether he fell on the ice observed alongside a storage trailer, or in the area directly adjacent to his truck's cab. (Doc. # 80 at 8.)

On January 4, 2023, Mr. Gyrion filed the instant motions to preclude the testimony of Defendant's retail expert Gary White, and to limit the testimony of Defendant's accounting expert Kyle Jacobson. (Docs. ## 49-50.) Defendant timely filed its Responses. (Doc. # 56-57.) Mr. Gyrion followed with his Reply (Doc. # 66) in support of his Motion to Preclude the Testimony of Gary White. Mr. Gyrion did not file a reply in support of his Motion to Limit the testimony of Kyle Jacobson and the time to do so has passed. D.C.COLO.LCivR 7.1(d).

* * *

Federal Rule of Evidence 702 provides that “[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.” Fed.R.Evid. 702. Before the expert can offer such opinions, however, the proponent of the testimony must demonstrate, by a preponderance of the evidence, that the expert's testimony is admissible. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); United States v. Crabbe, 556 F.Supp.2d 1217, 1220-21 (D. Colo. 2008). To do so, the proponent must establish that “(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 trial court acts as a “gatekeeper,” reviewing the proffered opinions for both relevance and reliability before determining whether the evidence is admissible under Rule 702. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-95 (1993); Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). The overarching purpose of the court's inquiry is “to make certain that the expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Goebel, 346 F.3d at 992 (quoting Kumho Tire, 526 U.S. at 152).

Generally, “rejection of expert testimony is the exception rather than the rule.” United States v. Nacchio, 519 F.3d 1140, 1154 (10th Cir. 2008), vacated in part on rehearing en banc, 555 F.3d 1234 (10th Cir. 2009); see also Fed.R.Evid. 702, advisory committee's notes to 2000 amendments. “Vigorous 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.” Daubert, 509 U.S. at 596.

Outcome: For the foregoing reasons, it is ORDERED as follows:

• Plaintiff's Motion to Preclude the Testimony of Gary White (Doc. # 49) is DENIED; and

• Plaintiff's Motion to Limit the Testimony of Kyle Jacobson (Doc. # 50) is DENIED AS MOOT.

Plaintiff's Experts:

Defendant's Experts:


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