[00:00:00] Speaker 03:
I was told to try to make this higher.

[00:00:12] Speaker 02:
Good morning, your honors.

[00:00:26] Speaker 04:
Good morning.

[00:00:26] Speaker 02:
On December 24th, 2024, Dr. Bruce Bunting did something we all do, something that's common in everyday experience.

[00:00:34] Speaker 02:
He ran to the CVS near his house on MacArthur Boulevard in the Palisades to pick up some things on the day before Christmas.

[00:00:40] Speaker 02:
When he walked out of the CVS, on his first step, he slipped and fell on the wet ground.

[00:00:46] Speaker 02:
There's video of the fall.

[00:00:47] Speaker 02:
There's pictures taken shortly after the fall.

[00:00:50] Speaker 02:
The court below granted CVS summary judgment finding that the plaintiffs were required to show through expert testimony that the ground which contained a snow melt product mixed in with the water or as visible in the photo was present in the area where he fell.

[00:01:07] Speaker 02:
Required that expert testimony be shown and that that expert testimony have tested the surface with a mixture of salt and water.

[00:01:16] Speaker 02:
That's incorrect under the law.

[00:01:19] Speaker 02:
This court's duty in the diversity case governed by DC law is to achieve the same outcome that would result if the DC Court of Appeals considered the case.

[00:01:27] Speaker 02:
That's from NOVA.

[00:01:30] Speaker 02:
And to do that, the court looks to published opinions from the Court of Appeals.

[00:01:33] Speaker 02:
We have guidance very recently from the DC Court of Appeals on a slip and fall case.

[00:01:37] Speaker 02:
In supplemental authority submitted by Appellant Jenkins v. Redcoats decided two months ago by the Court of Appeals, the Court of Appeals looked at the issue of whether expert testimony is needed in a slip and fall case.

[00:01:49] Speaker 02:
And they said, in a typical slip and fall case, laypeople do not require expert assistance to determine if a warning was adequate.

[00:01:56] Speaker 02:
They said that slip and fall cases will usually fall into the common sense category.

[00:02:01] Speaker 02:
And a lay juror could determine from their common knowledge and everyday experience whether defendant exercised reasonable care in warning passers-by the hazard caused by the wet floor.

[00:02:11] Speaker 03:
Mr. Wiebel, if this court were to agree with you that an expert was not necessary to establish the standard of care under DC law, what would be the next step procedurally

[00:02:24] Speaker 02:
uh, to remand, uh, for continuing, um, for trial.

[00:02:29] Speaker 02:
Uh, I mean, there was no Daubert challenge filed.

[00:02:31] Speaker 02:
There, there might be motions in lemonade filed.

[00:02:34] Speaker 03:
Um, would we have to also conclude that, that there was a genuine issue for the, a genuine issue of fact for the jury.

[00:02:40] Speaker 03:
And if we were, would we have to reach that determination in order for you to

[00:02:48] Speaker 03:
I don't believe so, Your Honor.

[00:02:50] Speaker 02:
I mean, the court does review this case de novo and certainly could, but the full gist of the court's opinion granting summary judgment was just that an expert had to test

[00:03:04] Speaker 02:
the substance with water and salt mixed together.

[00:03:07] Speaker 02:
That essentially guided all of the opinions.

[00:03:10] Speaker 02:
And if the court agrees with the DC Court of Appeals that we don't need expert testimony, then I think the issues that remain are jury issues.

[00:03:20] Speaker 02:
Everything else in this case goes to the weight of the jury.

[00:03:23] Speaker 02:
And I'm happy to talk about that, because that is the second.

[00:03:27] Speaker 02:
I view this appeal as involving two issues.

[00:03:29] Speaker 02:
There is a third issue, which is the negligence per se regulation.

[00:03:33] Speaker 02:
At crux here, there's two issues.

[00:03:35] Speaker 02:
One, do we need an expert?

[00:03:36] Speaker 02:
Two, did the experts we provided, is their data reliable and sufficient under rule 702?

[00:03:44] Speaker 02:
But in all the cases we cite on the reliability issue, make it clear that that's an issue for the jury.

[00:03:51] Speaker 02:
Right.

[00:03:52] Speaker 02:
The differences in methodology in testing is a jury issue.

[00:04:00] Speaker 02:
So the court would be within the rights here to remand it based on the fact that no expert testimony was needed.

[00:04:06] Speaker 02:
But if the court did decide to explore whether expert testimony is needed, I think this court could be easily guided in that determination by the cases cited in appellants brief.

[00:04:21] Speaker 02:
including, you know, this issue has been looked at by other circuit courts.

[00:04:26] Speaker 02:
So we cite to Buscaglia of the United States, 25th, 25th, 3rd, 530, the Seventh Circuit in 1994, which was evaluating whether a tile that was tested for slipperiness that had wax on it needed to have wax on it when it was tested, right?

[00:04:41] Speaker 02:
Could they test just water and wax or just wax?

[00:04:43] Speaker 04:
How about addressing our own precedent, Briggs, which Judge Edwards authored,

[00:04:50] Speaker 04:
was pretty categorical about the fact that the DC Court of Appeals requires expert testimony, I think in his language, that in a number of cases that on first blush appear to be within the realm of common knowledge.

[00:05:10] Speaker 04:
And we've followed that since 2007 when it issued.

[00:05:14] Speaker 02:
Correct, Your Honor.

[00:05:15] Speaker 02:
And Judge Edwards in Briggs, as you're obviously familiar, surveyed DC Court of Appeals' opinions in reaching that conclusion to look for, are there cases that, is this case like those others, right?

[00:05:27] Speaker 02:
And the latest case that was surveyed was from 2000.

[00:05:32] Speaker 02:
If you look at the Court of Appeals cited, those cases surveyed, the last one's from 2000.

[00:05:36] Speaker 02:
Cozio v. DC, DC was rolled on in 2008, about a year after Briggs, and that's a slip and fall case.

[00:05:43] Speaker 02:
And in Cozio, that's a slip and fall case where an inmate at a jail slipped in a shower.

[00:05:48] Speaker 02:
right and at first the court said oh this is very complicated how do you maintain showers in prison right like what's the schedule and then the court of appeals looked at it and said no this is actually just about was the surface wet and was there notice and the court of appeals said yes the plaintiff can show that without expert testimony to slip and fall but the difference in your case is that um

[00:06:11] Speaker 04:
As I understand it, Bunting said, no, this wasn't ice, this was water mixed with salt, and it made some sort of a slurry mixture.

[00:06:25] Speaker 04:
The expert testimony, as I understand it, and that is, I think, within lay experience, is that that's exactly what you do.

[00:06:34] Speaker 04:
You put salt down.

[00:06:35] Speaker 04:
It doesn't make it more slippery.

[00:06:38] Speaker 04:
It makes it less slippery.

[00:06:39] Speaker 04:
But your client seems to think, no, that addition by CVS was negligent in putting that salt down because

[00:06:50] Speaker 04:
If I'm wrong, tell me, because it isn't ice, it's water, and salt and water, in his view, and I guess in his expert's view, although that's very far from clear, makes it worse.

[00:07:06] Speaker 04:
And I thought both experts said it still remained at this 0.5, whatever that equation is, to test the coefficient of friction,

[00:07:19] Speaker 04:
question.

[00:07:21] Speaker 02:
Yes, you are.

[00:07:21] Speaker 02:
So, let me there are a couple of points that your honor raises and let me see if I can deal with them sequentially.

[00:07:26] Speaker 02:
First, the the claim in this case is that he slipped on a wet surface.

[00:07:30] Speaker 02:
If you look at the photograph submitted as part of the record and included in the brief, you can see that there is what we see all the time as people walk around in the city.

[00:07:38] Speaker 02:
There is some sort of snowmelt product on the ground around where he slept but there's a photograph the jury will get to see and a video of this.

[00:07:47] Speaker 02:
So, now, the

[00:07:49] Speaker 02:
nobody knows what that substance is.

[00:07:51] Speaker 02:
CVS couldn't tell us.

[00:07:52] Speaker 02:
Their vendor couldn't tell us.

[00:07:53] Speaker 02:
Nobody knows what the white substance we see on the ground is.

[00:07:56] Speaker 02:
So all of us, when we walk down the street, we see something for snowmelt.

[00:08:00] Speaker 02:
We just say salt.

[00:08:01] Speaker 02:
That doesn't mean it's actually salt.

[00:08:03] Speaker 02:
And so the requirement is that you must test with the exact chemical compound that was present at the time.

[00:08:09] Speaker 02:
That's too high a standard.

[00:08:11] Speaker 02:
We don't know what that substance is.

[00:08:13] Speaker 02:
And that's where these cases like Buscoglia get in the Seventh Circuit, as well as if you

[00:08:19] Speaker 02:
if you see where it's been cited, the 11th circuit adopted the same findings as did the 4th circuit.

[00:08:26] Speaker 02:
So the question isn't, was this a different substance?

[00:08:30] Speaker 02:
The photograph says it all.

[00:08:31] Speaker 02:
You can see how much of this white compound is on the ground where he fell.

[00:08:35] Speaker 02:
The photograph was taken shortly, within minutes of the fall by his neighbor.

[00:08:40] Speaker 02:
So the question here isn't that- Is it in the record?

[00:08:44] Speaker 04:
that this was some sort of usual substance that CVS put.

[00:08:49] Speaker 04:
I mean, why did the experts not be able to tell what the substance was?

[00:08:54] Speaker 04:
It was something that they normally put down.

[00:08:57] Speaker 02:
CVS couldn't tell us.

[00:08:59] Speaker 02:
We asked.

[00:09:00] Speaker 02:
CVS had an outside vendor, a greenscape, that came in and did salting.

[00:09:04] Speaker 02:
Everything from the record suggests that they put down the snowmelt product six days prior to the fall because that's when the snowstorm was and that it remained there.

[00:09:13] Speaker 02:
And the issue with that substance being on the ground is actually it doesn't go to the

[00:09:19] Speaker 02:
the slipperiness of the area, it goes to the notice issue, which is because the substance had been there for six days and CVS had never cleaned it up, right?

[00:09:30] Speaker 02:
Which the record is replete with statements by the CVS designee and the manager saying, oh, if I'd seen this, I wouldn't have cleaned it up, right?

[00:09:38] Speaker 02:
That we don't clean up that substance.

[00:09:40] Speaker 02:
So they had seen it.

[00:09:42] Speaker 02:
The idea of the presence of that salt is a notice issue.

[00:09:46] Speaker 02:
everyone can see the ground where he slept that it was wet and that he slipped on a wet substance.

[00:09:52] Speaker 02:
And the way that is tested, right, both experts in your honor brought this up, the expert for defendant and the expert for plaintiff tested the surface for the coefficient of friction using water, because that's what you do in these cases.

[00:10:05] Speaker 02:
And there are cases talking about that Milan of the MSC cruises out of the Southern District of Florida, which we cite in our brief talks about that.

[00:10:13] Speaker 02:
And the DC Court of Appeals has talked about the standard needed for experimental evidence, right?

[00:10:22] Speaker 02:
Recreation evidence, right?

[00:10:24] Speaker 02:
In Lewis v. United States and in Butts v. United States.

[00:10:29] Speaker 02:
And they say that no event could be perfectly reenacted.

[00:10:33] Speaker 02:
So the presence of this substance, and we don't know what it is, because CVS couldn't tell us, and they're the ones who had it placed, they replaced it there themselves, is a red herring.

[00:10:45] Speaker 02:
This is just a slip and fall case.

[00:10:47] Speaker 02:
He walked out of his CVS and he slipped and he fell.

[00:10:51] Speaker 02:
And we have video of the fall.

[00:10:53] Speaker 02:
And we have photographs of the surface where he slipped.

[00:10:56] Speaker 02:
And we have testing by both experts for plaintiff and defendant, both of which at some point found that it fell below the 0.5 coefficient of friction, which comes from the ASTM standard for slippery surfaces.

[00:11:08] Speaker 02:
So the idea here is that you're testing the surface.

[00:11:13] Speaker 02:
You're not testing the substance.

[00:11:16] Speaker 04:
Any questions?

[00:11:19] Speaker 04:
Okay, you're over your time.

[00:11:21] Speaker 04:
We'll give you a couple of minutes to reply.

[00:11:23] Speaker 04:
Thank you.

[00:11:34] Speaker 01:
May it please the court, Jessica Smith for District of Columbia, CVS.

[00:11:38] Speaker 01:
So the district court properly granted summary judgment here.

[00:11:41] Speaker 01:
This is a case that required expert testimony on the standard of care and on the deviation from the standard of care.

[00:11:48] Speaker 01:
Plaintiff, contrary to what's been alluded to here today, unequivocally testified that he fell on a mixture of salt and water that made a slurry.

[00:11:58] Speaker 01:
And as Judge Henderson alluded to earlier, we all know that generally salt on a substance makes it less slippery.

[00:12:05] Speaker 01:
Here, if plaintiff is claiming that that actually made the surface more slippery, he was required to provide expert testimony explaining that presence of salt was in fact a deviation.

[00:12:17] Speaker 01:
Now, Dr. Harris- You know there was salt?

[00:12:20] Speaker 01:
plaintiff identified it as salt multiple times in his testimony.

[00:12:25] Speaker 01:
He uses salt, he says, at page 82 and 83 multiple times that he's 100% certain that he slipped on water and salt.

[00:12:33] Speaker 01:
In fact, he goes so far as saying that his face was close to the ground.

[00:12:37] Speaker 01:
He had an opportunity to observe it for a long period of time.

[00:12:40] Speaker 01:
So plaintiff himself gives no doubt that it was, in fact, salt.

[00:12:44] Speaker 01:
So here, we're talking about the mixture of salt and water, the impact of which is not within the ken of your average juror.

[00:12:50] Speaker 01:
So expert testimony was, in fact, required here.

[00:12:53] Speaker 01:
Now, the testimony submitted.

[00:12:55] Speaker 01:
Don't we?

[00:12:56] Speaker 03:
I mean, under our case law, we consider de novo what the standard of care is.

[00:13:03] Speaker 03:
And for that, we have to look at the DC Court of Appeals opinions, which seem to have changed substantially since our 2007 opinion.

[00:13:13] Speaker 03:
So like in red coats, I mean, it seems that the DC court of appeals is moving away from expert testimony in these types of slip and fall cases.

[00:13:21] Speaker 03:
So what are we supposed to do with that?

[00:13:25] Speaker 03:
So seeming evolution in the DC court of appeals.

[00:13:28] Speaker 01:
So I'd also like to highlight that Rule 702 has been amended with the idea of increasing the role of gatekeeper of the courts to keep out these expert opinions that are- Well, but that's a secondary question.

[00:13:45] Speaker 03:
As first questions, do you even need an expert in this type of case?

[00:13:50] Speaker 03:
And on that question, the D.C.

[00:13:52] Speaker 03:
Court of Appeals in Redcoats and Cocio and other cases seems to be moving away from its earlier standards or maybe completely having moved away.

[00:14:02] Speaker 03:
And if our job sitting in diversity is to follow the D.C.

[00:14:06] Speaker 03:
Court of Appeals as it is, how do you prevail under the current standards in the D.C.

[00:14:13] Speaker 03:
Court of Appeals?

[00:14:15] Speaker 01:
Well, this case is different than some of the ones that have been discussed because it involves this issue of the salt in addition to water.

[00:14:21] Speaker 01:
This is not an issue.

[00:14:22] Speaker 01:
There's a standing puddle that has been known about for a very long time that everyone can observe that there was a puddle that could be slippery here.

[00:14:29] Speaker 01:
We have this idea that it's the salt that is something that all plaintiff's experts agree is put down to improve the safety of a surface is now being alleged that, in fact,

[00:14:40] Speaker 01:
makes it less safe and more slippery.

[00:14:43] Speaker 01:
So this is distinguishable from the cases that plaintiff is relying on here because we have this unique element.

[00:14:50] Speaker 01:
It's not just a slip and fall for that reason where he's actually claiming that's something that is generally used

[00:14:55] Speaker 01:
to protect pedestrians is, in fact, unsafe here, especially under the conditions that we have here, where we knew temperatures were at freezing and were planned to go back to freezing the day after this event.

[00:15:08] Speaker 01:
And the salt was just present on a warm day.

[00:15:11] Speaker 01:
And in fact, Lisa Rose says that 24 hours in advance is appropriate time frame to apply the salt.

[00:15:19] Speaker 01:
So we have all these factors weighing against the idea that this is just

[00:15:22] Speaker 01:
simple issue.

[00:15:23] Speaker 03:
Whether the salt was properly applied or not is not a question about the slip and fall.

[00:15:28] Speaker 03:
That's a question about the duty of care.

[00:15:31] Speaker 03:
So that's a different question.

[00:15:35] Speaker 00:
Right.

[00:15:36] Speaker 01:
Well, even so, this salt issue is unique to this case compared to the other ones that have been discussed.

[00:15:42] Speaker 00:
How so?

[00:15:43] Speaker 00:
I have the same concern that my colleague just raised.

[00:15:45] Speaker 00:
I'm not understanding, what are you making of the salt?

[00:15:48] Speaker 00:
How does that work favorably for you?

[00:15:51] Speaker 00:
They don't mean to suggest it wasn't slippery because there was salt there.

[00:15:57] Speaker 00:
They may have observed, as they did, there was a mixture of salt and water.

[00:16:02] Speaker 00:
But so what?

[00:16:03] Speaker 00:
What does that do for you?

[00:16:05] Speaker 01:
So plaintiff is claiming that this substance, the salt, which is meant to make surfaces, and all of the experts say application of salt makes the surface less slippery.

[00:16:14] Speaker 01:
He's claiming here that it made it more slippery.

[00:16:16] Speaker 01:
There's no expert testimony that is capable of demonstrating that, because their expert never tested the coefficient of friction.

[00:16:24] Speaker 01:
He never indicated how salt, in fact, in this instance, would make a substance more slippery, how the salt would react with the water,

[00:16:34] Speaker 01:
under these conditions to, in fact, increase a slip hazard.

[00:16:38] Speaker 00:
He is nothing supporting that because his expert... Is there no evidence in the record to indicate that you can slip and fall on this kind of a surface that includes salt and water?

[00:16:51] Speaker 00:
There's certainly no evidence suggesting that if there's salt there, you won't slip.

[00:16:56] Speaker 01:
Well, anything is possible, but the ex-plaintiff had to actually prove what the standard is.

[00:17:01] Speaker 00:
Prove what?

[00:17:02] Speaker 00:
I'm trying to understand what you're trying to make of the salt.

[00:17:05] Speaker 01:
He had to actually prove that there was a deviation from the standard of care by virtue of the fact that the salt present in conjunction with the water made the surface below the coefficient of friction that everyone agrees is the standard of care, which is 0.50.

[00:17:21] Speaker 01:
He never submits any expert testimony demonstrating that, because his expert, in fact, did not give us a coefficient of friction.

[00:17:29] Speaker 01:
He claimed that it was only testable through a non-portable James machine, which is a laboratory device.

[00:17:36] Speaker 03:
But whether the expert testimony is sufficient is a different question from whether you need expert testimony in the first instance, or whether this is something within the ordinary understanding of a lay person, i.e.

[00:17:50] Speaker 03:
a juror.

[00:17:53] Speaker 01:
I do understand that.

[00:17:54] Speaker 03:
And like I said- And the DC Court of Appeals seems to have repeatedly said in recent years that this type of, that you rarely are going to need expert testimony for this type of case.

[00:18:07] Speaker 03:
And only maybe in professional malpractice cases, the rare instance is where you're going to need expert testimony.

[00:18:16] Speaker 03:
I mean, most jurors would be familiar, arguably, with going to a CVS on a rainy day and what that looks like in terms of water and salt or snowmelt.

[00:18:30] Speaker 04:
Before you answer, am I wrong about the record?

[00:18:33] Speaker 04:
I thought that the plaintiff was the one insisting on expert testimony in the slurry, whatever it was, had to be tested.

[00:18:47] Speaker 01:
We are saying that the plaintiff had the obligation to test it under the comparable conditions.

[00:18:54] Speaker 01:
So the comparable conditions here would be the mix of the water and the salt because this wasn't an unknown substance.

[00:19:00] Speaker 01:
This was known and specifically identified by plaintiff to be something that

[00:19:04] Speaker 01:
actually contributed to his fall.

[00:19:07] Speaker 01:
And their expert did not test under those conditions.

[00:19:10] Speaker 01:
He only tested under water.

[00:19:11] Speaker 01:
And all the experts agree that the presence of salt is actually going to make this less slippery, which would therefore make it within the standard of care and not a deviation.

[00:19:23] Speaker 04:
All right.

[00:19:26] Speaker 04:
I read his claim to be in part that what was negligent was CVS putting this, whatever the substance was, down and making it less safe.

[00:19:39] Speaker 01:
That is part of his claim.

[00:19:40] Speaker 01:
That's true.

[00:19:41] Speaker 01:
And essentially, first of all, there's no evidence that CVS itself did that.

[00:19:46] Speaker 01:
The only thing is that their contractor, the professional snow contractor did.

[00:19:50] Speaker 01:
But setting that aside, and this is why I brought up the temperature before, the temperature under this condition, we had freezing before and after.

[00:19:58] Speaker 01:
So according to plaintiff's own expert, that was sufficient to free treat for the freezing test

[00:20:05] Speaker 01:
temperatures that were going to be 24 hours in advance.

[00:20:09] Speaker 01:
Additionally, Lisa Rose actually testified that you would only need to clean up salt either at the end of the snow event or at the end of the season.

[00:20:20] Speaker 01:
So in fact, using her own testimony, leaving the salt present was in fact not a deviation from the standard of care.

[00:20:26] Speaker 01:
So there's nothing that they can point to on that element to show that in fact, CVS deviated from their standard of care by leaving the salt in place.

[00:20:35] Speaker 04:
Here's the question I need answered.

[00:20:38] Speaker 04:
Who started the whole expert testimony issue?

[00:20:44] Speaker 04:
I thought that from the way the plaintiff presented his case,

[00:20:51] Speaker 04:
He said, what CVS did wrong was put whatever the substance down was to put it down.

[00:20:58] Speaker 04:
And that is something that it seems to me a lay jury cannot figure out.

[00:21:08] Speaker 01:
I agree with you.

[00:21:09] Speaker 01:
That is how the complaint reads that this addition of salt is the deviation from the standard of care here, and the jury cannot know what the... And he is fairly adamant about it, wasn't he?

[00:21:22] Speaker 04:
The negligence was the addition of this substance onto water.

[00:21:29] Speaker 01:
Yes, and I believe it's alleged in the complaint and the response to interrogatories that way.

[00:21:35] Speaker 01:
And Lisa Rose does not fit the bill of setting the standard of care there, even if we get to the sufficiency, because A, she only relies on standards applicable to snow management companies.

[00:21:46] Speaker 01:
And for the reasons I've already addressed, her testimony actually indicates that the salt was appropriate at this time.

[00:21:52] Speaker 01:
So I see that my time is almost out if anybody has anything else.

[00:21:58] Speaker 01:
If not, I'll rest on my brief.

[00:22:00] Speaker 01:
All right.

[00:22:00] Speaker 01:
Thank you.

[00:22:01] Speaker 01:
Thank you.

[00:22:03] Speaker 04:
Mr. Levenworth, why don't you take two minutes.

[00:22:05] Speaker 04:
And let me just ask you this question.

[00:22:08] Speaker 04:
I view this case as your client

[00:22:14] Speaker 04:
started this whole expert testimony issue by saying, it wasn't ice, it was water, and something was mixed with it which made it worse.

[00:22:27] Speaker 04:
And is that within common knowledge?

[00:22:32] Speaker 04:
And that's what prompted this whole battle of experts.

[00:22:36] Speaker 02:
No, Your Honor.

[00:22:39] Speaker 02:
The challenge to the expert testimony comes solely from CVS.

[00:22:43] Speaker 02:
The complaint as written does allege that the slip and fall happened in an area that was salt mixed with water, but not that it was because of the salt that there was a hazard.

[00:22:52] Speaker 02:
It's because it was slippery, right?

[00:22:55] Speaker 04:
And so then... That's not what your client says, is it?

[00:22:58] Speaker 04:
Yes, that he slipped.

[00:23:03] Speaker 04:
I thought it was the addition of this substance that was the origin of the negligence.

[00:23:13] Speaker 00:
You're saying that putting the substance down created the hazard.

[00:23:17] Speaker 00:
That's how I… That's what they were suggesting.

[00:23:20] Speaker 00:
Is that what you… No, Your Honor.

[00:23:22] Speaker 00:
What we're suggesting… That surprised me.

[00:23:23] Speaker 03:
I didn't… Can you point us to something in the complaint that

[00:23:27] Speaker 02:
I'm not, I can't point to something in the complaint, but I can point to both the, I can point to the expert report from Dr. Harrison.

[00:23:35] Speaker 02:
I can also point to our arguments in the summary judgment option that, you know, and, and theories of liability may shift.

[00:23:43] Speaker 02:
If the complaint reads them, you know, poorly in that regard, then, you know, the theory of liability may shift during the course of the.

[00:23:49] Speaker 04:
I think that's how the district court looked at it.

[00:23:53] Speaker 04:
I don't, I can't, let's see.

[00:23:56] Speaker 04:
Well, go ahead, go ahead.

[00:23:58] Speaker 02:
That won't be the evidence at trial, right?

[00:24:00] Speaker 02:
The evidence at trial is that there was a slippery surface, right?

[00:24:03] Speaker 02:
And that the presence of the ice mixture, the

[00:24:07] Speaker 02:
I'm calling it salt, but we don't know that it's salt.

[00:24:09] Speaker 02:
The deicing agent is an issue that it was there.

[00:24:13] Speaker 02:
And I want to correct something that has been said by CVS.

[00:24:17] Speaker 02:
We don't all know that salt on a wet surface makes it less slippery.

[00:24:21] Speaker 02:
We know that we put salt down on ice, but there's no evidence that there was ice here for six days.

[00:24:27] Speaker 02:
And so the issue, so what we see there is that there is a jury going to be told

[00:24:36] Speaker 04:
What, it's up to you to decide that whatever was put on this made it more slippery?

[00:24:43] Speaker 04:
What is the jury going to be told?

[00:24:45] Speaker 02:
No, the jury is going to be told that this surface was wet and slippery.

[00:24:48] Speaker 02:
And when tested, it fell below the standard, the coefficient of friction for slippery.

[00:24:52] Speaker 04:
I don't see that as what the experts said.

[00:24:56] Speaker 04:
They said it was 0.5.

[00:24:59] Speaker 02:
Correct.

[00:25:00] Speaker 02:
That is the coefficient of friction.

[00:25:01] Speaker 02:
And that when tested wet, it fell below that coefficient of friction.

[00:25:05] Speaker 02:
All the experts go out there and they test it, both defendant's expert and apprentice expert, and they find that the surface where he slipped was under the 0.5 coefficient of friction, meaning it was too slippery.

[00:25:17] Speaker 02:
So the question isn't going to be, and if the presence of the contaminant

[00:25:23] Speaker 02:
is an issue.

[00:25:24] Speaker 02:
That's a jury issue, right?

[00:25:26] Speaker 02:
Subject to cross-examination.

[00:25:27] Speaker 02:
The idea that the experts went out and tested with water, not with a mixture of salt or water.

[00:25:33] Speaker 04:
You know, the cases, and I mentioned them earlier... What are they going to base their decision on, whether this addition helped or hurt?

[00:25:41] Speaker 02:
They're going to base it on the expert testimony and the cross-examination of it.

[00:25:48] Speaker 02:
And just to be clear, I'm out of time, but there is just no evidence that this ICE has anything to do with this case.

[00:25:55] Speaker 04:
I think I heard you say they're going to base it on expert testimony.

[00:25:58] Speaker 04:
Is that correct?

[00:26:00] Speaker 02:
Well, no, they're going to base it on the video and the photographs.

[00:26:04] Speaker 04:
And that's going to tell them what the substance is?

[00:26:06] Speaker 02:
No, it can't be the plaintiff's burden to identify the substance that the defendant, CVS, can't tell us what it is, right?

[00:26:15] Speaker 02:
Because otherwise, plaintiff would have had to scoop it up on the day he fell.

[00:26:19] Speaker 04:
You can't expect a jury to do that either.

[00:26:23] Speaker 00:
I'm confused as to what you think your complaint is.

[00:26:26] Speaker 00:
says, I thought failure to remediate the situation was a principle.

[00:26:32] Speaker 00:
I'm not sure what you mean to say about putting down this substance was negligence.

[00:26:39] Speaker 00:
There I might, one wonders why not, why wouldn't we need an expert?

[00:26:44] Speaker 00:
But failure to remediate, I don't know why you need an expert,

[00:26:49] Speaker 00:
on that question.

[00:26:51] Speaker 00:
I thought that was your principle.

[00:26:52] Speaker 00:
Correct.

[00:26:53] Speaker 02:
That's what I said earlier.

[00:26:54] Speaker 02:
The presence of the snowmelt product six days after it was applied shows us that CVS never went and cleaned up this area.

[00:27:01] Speaker 02:
They didn't remediate this situation, that it was wet from the snowstorm or from the rain.

[00:27:06] Speaker 00:
And for six days, no one... Without regard to whether there was a substance with salt in it.

[00:27:11] Speaker 00:
It's just it was wet.

[00:27:11] Speaker 00:
It's just it was wet.

[00:27:12] Speaker 00:
You're saying any... I thought the core argument

[00:27:16] Speaker 00:
We'll have to figure this out, whether you need an expert.

[00:27:19] Speaker 00:
Core argument was, anyone knows, looking at the surface, no matter what's down there, it's slippery and you can fall and they didn't remediate it.

[00:27:28] Speaker 00:
Correct.

[00:27:28] Speaker 00:
Does it matter whether it's salt, sugar, pepper?

[00:27:31] Speaker 00:
It doesn't matter.

[00:27:32] Speaker 00:
It's wet and slippery.

[00:27:33] Speaker 00:
It's wet with water, which is in the realm of- And so a principal question for us, it seems to me, is whether you need an expert to deal with that and whether it's required under DC law.

[00:27:42] Speaker 02:
I don't believe you do, Your Honor, and this is the point about your opinion in Briggs, is that if you did the same thing you did in Briggs and surveyed DC Court of Appeals opinions since Briggs, you'll come to Cozio and you'll come to Jenkins, right?

[00:27:54] Speaker 02:
And as Justice Rao points out, the Court of Appeals has moved away from needing experts in these kinds of cases.

[00:27:59] Speaker 02:
There is one from before Briggs, Levi, which is cited in Cozio, 697A2nd, 1201 from 1997, which is also a prison slip and fall case.

[00:28:10] Speaker 04:
Later one too you want to look at, KS Condo.

[00:28:13] Speaker 02:
Take a look at that.

[00:28:15] Speaker 03:
You didn't cite it.

[00:28:17] Speaker 03:
I'm sorry, just to clarify, I mean, are there two separate questions about when an expert is needed?

[00:28:22] Speaker 03:
One, whether an expert is needed to establish the standard of care, which your argument is that there is no expert necessary for that.

[00:28:32] Speaker 03:
But then it does seem that the plaintiff here is trying to rely on expert testimony to show that the standard of care was not met.

[00:28:40] Speaker 03:
Are those two distinct questions or do they essentially collapse?

[00:28:45] Speaker 02:
They essentially collapse, Your Honor.

[00:28:47] Speaker 02:
And I think you can see that by looking at Jenkins, Cozio, Boff v. International Hotels from the district court, the federal district court.

[00:28:55] Speaker 02:
None of those cases required, they all talked about not needing an expert and none of them required an expert for your second question either.

[00:29:02] Speaker 02:
Right.

[00:29:02] Speaker 03:
So if the... But you've tried to create a genuine issue of material fact by pointing to the expert testimony.

[00:29:10] Speaker 03:
So is there a genuine issue of fact without the expert testimony?

[00:29:16] Speaker 02:
Yes, whether or not the floor was slippery under the circumstances.

[00:29:20] Speaker 02:
Plaintiff says it was, because he slept, and they say it wasn't.

[00:29:23] Speaker 02:
But I think it's sort of a proof is in the pudding, right?

[00:29:26] Speaker 02:
Jenkins would have dealt with whether an expert was needed for your second step.

[00:29:30] Speaker 02:
Cosio would have dealt with it, because they were challenging whether the sufficiency of the expert testimony.

[00:29:35] Speaker 02:
And none of those cases discussed needing an expert for that.

[00:29:39] Speaker 02:
second, right?

[00:29:41] Speaker 02:
That second step.

[00:29:44] Speaker 04:
Thank you.

[00:29:44] Speaker 02:
Thank you, Your Honors.

[00:29:45] Speaker 03:
Thank you.