Nash v. Wal-Mart Stores, Inc.
709 F. App'x 509
| 10th Cir. | 2017Background
- Plaintiff Steven Nash fell from a 7-foot step ladder and sued the manufacturer (Louisville Ladder, Inc.) and retailer (Wal‑Mart) for negligence, strict liability, and breach of implied warranty.
- Nash retained Robert D. Fritz as an expert; defendants moved to strike the expert and for summary judgment.
- The magistrate judge proposed striking the expert for unreliability; the district judge adopted that ruling on de novo review and additionally found Fritz unqualified on step ladders.
- With the expert excluded, the district court granted summary judgment to defendants for lack of a genuine issue of material fact.
- Nash appealed pro se, asserting six points (e.g., defendants didn’t challenge calculations, expert’s late production of calculations, procedural unfairness at the hearing, ANSI noncompliance), but the Tenth Circuit found his arguments unpersuasive and affirmed.
Issues
| Issue | Nash's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony under Rule 702 (qualification) | Fritz was a valid expert; his qualifications suffice | Fritz lacks qualifications specific to step ladders | Court struck expert for lack of qualification and unreliability (abuse‑of‑discretion review affirmed) |
| Admissibility of expert testimony under Rule 702 (reliability) | Expert’s opinions/calculations are sound; late production not fatal | Expert’s methodology and late/tardy calculations make opinion unreliable | Court found opinions unreliable and struck them |
| Procedural fairness at hearing (Nash silenced / counsel conduct) | If Nash had spoken or different demonstration occurred, result would differ | Magistrate’s demonstration and counsel conduct did not taint de novo review | Court declined to reverse; no basis to find procedural error |
| New substantive argument (ANSI noncompliance) | Ladder violated ANSI standards | Issue not raised below; defendants not required to address | Court refused to consider on appeal (no plain‑error argument preserved) |
Key Cases Cited
- Etherton v. Owners Ins. Co., 829 F.3d 1209 (10th Cir. 2016) (standard: abuse‑of‑discretion review for Rule 702 evidentiary rulings)
- Cillo v. City of Greenwood Vill., 739 F.3d 451 (10th Cir. 2013) (standard: de novo review for summary judgment)
- Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005) (pro se filings are liberally construed but court is not advocate)
- ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163 (10th Cir. 2011) (issues raised first in objections to a magistrate judge’s proposed disposition may be waived)
- Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229 (10th Cir. 2016) (explaining plain‑error consideration when an argument was not preserved below)