MOTION IN LIMINE - REGARDING TESTIMONY REGARDING PAMELA MCCAULEY'S AFFIDAVIT F/B PLT September 23, 2018 (2024)

 
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 Filing # 78282219 E-Filed 09/23/2018 06:14:35 PM.IN THE CIRCUIT COURT OF THE FIFTEENTHJUDICIAL CIRCUIT IN AND FOR PALMBEACH COUNTY, FLORIDA.Case No.: 502014CA012361XXXXMB AHMICHAEL CAMPBELL andDARLA DRAKE-CAMPBELL,Piaintiffs,Vv.PUBLIX SUPER MARKETS, INC.,a Florida corporation, and S-LDISTRIBUTION COMPANY., INC., aDeiawaie Corporaucn, anaYANIRE ENTERPRISES, INC.a Florida corporation, and ARISTIDESMARTE, individually,Defendants./PLAINTIFFS’ MOTION IN LIMINE REGARDING TESTIMONYREGARDING PAMELA MCCAULEY’S AFFIDAVITCOMES NOW the Plaintiffs, by and through their undersigned attorneys, and filethis Motion in Limine with respect to the testimony regarding Pamela McCauley, Ph.D.’sAffidavit, and as grounds therefor states the following:1. Dr. Pamela McCauley is an expert retained by the Plaintiff who has providedtrial testimony by way of a video deposition.2. Prior to the deposition, Dr. McCauley provided an affidavit containingopinions on the Occupational Safety and Health Administration regulations, the FloridaBuilding Code regulations, and the Florida Fire Prevention Code. Dr. McCauley offeredopinions regarding the obstruction of the ingress and egress at the Publix where thelanl ant anniemGiuent OCouTe.CHIEN. DAIRARECACUAAIINTY Cl CUADAND ANFY FLED nain2innia ne44.25 DAAPILL. PAL DLA VUUINE TT, 1, OHI. DUUN, ULLIAN, voreur2u LU UU. Ito FiveCAMPBELL v. Publix, S-L Distribution Co., Yanire and MarteCase No.: 502014CA012361XXXXMB AH3. At the time Dr. McCauley offered her opinions, Publix was a party to thelawsuit. Publix raised counter arguments that the obstruction in the ingress and egresswas only there for 19 seconds.4, When Dr. McCauley testified during her video deposition for use at trial, Dr.McCauley testified that she would not be offering opinions regarding ingress and egressbecause she needed to do additional research on whether the obstruction was temporaryunder the applicable codes and ordinance.5. Publix was dropped as a party.6. Defendants added Publix as a Fabre Defendant.7. Defendants have no evidence of any negligence on behalf of Publix.Instead, it appears Defendants are attempting to use Dr. McCauley’s affidavit andtestimony regarding the affidavit as their only evidence of Publix’s negligence.8. Dr. McCauley’s affidavit is inadmissible hearsay. It should not be admittedas evidence and the Defendants should be prohibited from referencing the affidavit atiflal.9. Defendants have designated portions of Dr. McCauley’s testimonyregarding the affidavit to be played at trial.10. The testimony regarding the affidavit should be excluded because it doesnot hold any probative value and it is highly prejudicial. The testimony will only confusethe jury on the issues.11. Dr. McCauley has testified that the opinion is incomplete. Dr. McCauleywwaild naad ta da mnre reWeur mecu ww GO nore re.CAMPBELL v. Publix, S-L Distribution Co., Yanire and MarteCase No.: 502014CA012361XXXXMB AH“temporary” and whether the temporary nature has any impact on applicable codes andordinances. Specifically, Dr. McCauley testified as follows:Question: Your opinion has changed?Answer: Well, this is -- | did. | looked at: -additional -- | wouldn't say -- | wouldneed to do -addition analysis.- | went back and looked at the video. And uponobserving that the cart was in the doorway for 19 seconds, okay.- So -- and then |looked at the code, and I just -- | tried to be very thorough and complete andobjective in my analysis. And so the cart was there for 19 seconds.- And then,there was another exit that was there, which | think 1 showed in the photo.- And so| will - | was concerned that my opinion may not -- with the term temporary, that itmay be a concern. So my concern was that | needed to do additional research onwhai the scientific iiterature states is temporary, and i didn’t have time to find or todo that additional analysis.- So that's why | stepped back from those opinions, so.Question: Okay. So, Doctor -- I'm sorry.- Are you done?Answer: Yes. So — but, no. What I'm saying is when | wrote that, yes, that wastrue. But I'm telling you after | did additional analysis and began to understand sownat do mean we mean by Temporary? 7 18 ner anyining i ine SCieiitt tithat | can point to that says what temporary is which would constitute a violation. See Deposition of Pamela McCauley, August 20, 2018, 40:9-25, 1-8 attached asEx112. Dr. McCauley later testified that her opinion on the ingress and egress isthat she has no opinion because she needs to do more research on what constitutes atemporary obstruction. 42 at 5-1413. Defendants have designated the following portions of Dr. McCauley’sAanacitinn racnardinn tha offidauit ta ha nlavad at trialGepComen (Ogaraing wie aniGavin iW We picyou Ge wie,Page 38 line 3-13;Page 39 line 21-25;Pages 39-40;Page 41, line 1-8, 23-25; andPage 42, Line 1-25.eeoeeeCAMPBELL v. Publix, S-L Distribution Co., Yanire and MarteCase No.: 502014CA012361XXXXMB AH14. Plaintiff requests that the Court prohibit Defendants from playing anyportions of Dr. MicCauley’s testimony regarding her prior affidavit.15. Defendant should likewise be preciuded from arguing, mentioning, orreferencing that McCauley offered an opinion on Publix’s negligence.WHEREFORE, the Plaintiffs pray the Court enter an Order as follows:A. Finding that Dr. McCauley’s prior affidavit is inadmissible; andB. Prohibiting Defendants from playing portions of Dr. McCauley’s depositionat iriai that invoive her prior affidavit; andCc. Prohibiting Defendants from arguing, mentioning, or referencing that Dr.McCauley offered an opinion on Publix’s negligence.CERTIFICATE OF SERVICE| HEREBY CERTIFY that the foregoing has been furnished via e-service; and, e-mail to: Matthew A. Fiorello, Esq., matthew.fiorello@petersonbernard.com;patty.martel@petersonbernard.com; Peterson Bernard, Counsel for Defendant, S-L.Distribution Company, Inc., Yanire Enterprises, Inc. and Aristides Marte, 1550 SouthemBlvd., Suite 300, West Palm Beach, FL 33406 on this 23°~ day of Sep tem 2018.CRITTON, LUTTIER & COLEMAN, LLPAttorneys for Plaintiffs303 Banyan Bivd., Suite 400West Palm Beach, FL 33401Telephone: 561-842-2820Fax: 561-844-6929milMlaunle eam: snarkuMlawole | onam Florida Bar No. 302864wo101112131415161718192021Pamela McCauleyAugust 20, 2018 IN THE CIRCUIT COURT OF THE 15TH JUDICIALCIRCUIT IN AND FOR PALM BEACH COUNTY,FLORIDACASE NO.: 502014-CA-012361XXXXMB AHMICHAEL CAMPBELL and DARLADRAKE-CAMPBELL,Plaintiffs,v.PUBLIX SUPER MARKETS, INC., a FloridaDann and @ 7 nremerormraw Aumnawycorporation, GOOG P-U VisinLDULLUN UUrIFANLLLC, £/k/a S-L DISTRIBUTION COMPANY, INC.,a Delaware Corporation, and YANIREENTERPRISES, INC., a Florida corporation, andARISTIDES MARTE, individually,Defendants. VIDEO DEPOSITION OF PAMELA MCCAULEY, Ph.D.August 20, 201848 pom,Aatnm Aoa pem. at3505 Lake Lynda DriveSuite 200Orlando, Florida 32817Stenographically Reported By:Daly OoanaCourt Reporter www.uslegalsupport .comPamela McCauley August 20, 2018 2 to 5Page 2 Page 4: =a 1 Deposition taken before Daly Ocana, Professional2 Court Reporter and Notary Public in and for the State of3 3. Florida at Large in the above cause.critton, luttier & Coleman, LLP a tea bale4 303 Banyan Boulevardsuite 400 5 'THE VIDEOGRAPHER: Good afternoon. We are now5 West Palm Beach, Florida 33401 6 on the video record.561-842-2820 : 7‘ BY; MARKT, LUPTIER, REQUIRE 1 ‘THE COURT REPORTER: This is the case ofmtLolawclc.com 8 Michael Campbell and Darla Drake-Conpbell versus7a 9 Yanire Enterprises and Aristides Marte, and theSn Sonnit of ths Detenmants: b case was ed ai the Ciiaiit Court of the iti: ath lloilo n Judicial circuit in and for Palm Beach County,10 1550 Southern Boulevard 12 Florida. We are here to take the video depositionsuite 300a West Palm Beach, Florida 23406 B of Panola McCauley, Ph.D,561-606-5005 u Would all comsel please state your12 BY: MATTHEW A, PIORELIO, RSQUIRE 15 appearances on the record, please?matthew. fiorelloepetersonbernard.com . 72 16 MR, IUETIER: Mark Iuttier on behalf of MikeM4 av and Darla Carpbel.2 18 MR. FIORELLO: Matthew Fiorello on behalf of16 19 Yenize Enterprises and Aristides Marte.al 20 THR COURT REPORTER: Okay. Dr. McCauley,29 an would you please raise your right hand?os 2 ‘THE WITNESS: Yes. (Complies.)22 23 ‘THE COURT REPORTER: Do you swear or affirm23 24 the testinany you are about to give will be the24s 25 truth, the whole truth, end nothing but the truth?Page 3 Page 52 ‘INDEX 1 ‘THE WITNESS: I do,eer: iva 2 THE COURT REPORTER: Okay.PAMELA MCCAULEY, Ph.D. c 7: 3 THEREUPON,A Diveot Examination by Mr. Luttier...........0000+ 4 4 PAMELA MCCAULEY, Ph.D. ,cross-Exanination by Mr, Fiorello. . 5 having been first duly sworn, was exanined and testified5 Redirect Examination by Mr. tuttier. 6 as folloxs:Recross Examination by Mr. Fiorello,,.. 7 DIRRCE EXAMINATION6 Further Redirect by Hr. Luttier :‘7 CERTIFICATE OF OATH. 13 BBE tie ANTESeuprpieata on yavseria | ly at 9 9 Good afternoon, Doctor. Could you tell thee 10 wenbers of the jwy your name, please?ERRATA SHEET... i A Yes, Pamela NoCauley.9 NOTIPICATION LETTER, 12 Q And, Doctor, what is your occupation?7 B A I'ma professor of industrial engineering ati 14 the University of Central Florida.33 45 Q And what is your professional address?14 16 A My professional address is 3505 Lake Lyndaae 17 Drive, Suite 200, Orlando, Florida,16 (No EXHIBITS MARKED.)i 8 Q Okay. And could you tell the wenbers of theae 19 jury a Little bit about what your occupation is? What29 20 it entails?20 a A Certainly. As an occupational ergonomist anda aa 23° ergonomics, huran factors, and bionechanics. As such, Iny 24 work as a professor at the University of Central Florida25 where I teach ergonomics courses, biomechanics courses,as www.uslegalsupport.comPamela McCauley August 20, 2018 6 to 9Page 6 Page 82 and occupational, safety courses and have for the past 26 | 1 Q Okay. Have you been involved in projects2 years, 2 where vou achwally annly var himan factors exnertineEy Q What is ergonomics? 3. cut in the ~- as we would say the real world?4 A Well, ergonomics, it means the study of the 4 A Oh, many, many, It's very exciting. I've5 lwman ergo in the -- in the work -- work -- in the 5 done projects for NASA, munerous projects for the6 workplace. and so the field actually has evolved so it | 6 Department of Defense. I've done projects for the World7 doesn't as mich -- doesn't isolate itself to work. But {| 7 Bank and mmerous projects for corporations such as8 any time people interact with a physical environment or | 8 Lockheed Martin, Raytheon, and others.9 a cogni- -~ from a cognitive or physical standpoint, we | 9 Q Okay. And just in a summary form so that the6 can apply principles of ergononics and muman factors, | i jury has a sense of wnat you do, what is it ineseiL And so without being too long winded here, 11 companies hire you as a human factors and ergnomist. to12 ergonomica and Inman factors have become synonymous 12 do?13° terms, But the human factors aspect of our field of B A Okay, ell, they hire me to offer input into14 study tends to foous more on the cognitive side of the | 14 the design, the layout of facilities and equipnent.15 research, 15 Also, what's the most appropriate way for a process to16 Q Meaning what? 16 work or a facility to be laid out. It -- that -- so. A Cognition is thinking how people think and kow | 17 that you have the most: efficient and effective work18 the mind works, And so as ergonomists, it's our 18 place and where people can operate and function safely19 responsibility to do research and design processes, 19 and efficiently.20 procedures, and environment so it's consistent with 20 Q Yeah. Have -- have -- are you a member of any21 human expectations. 21 professional societies in your area?22 Q Would it be a correct statement to say that in | 22 A Tam, T'ma nether of the Human Factors and23° a summary form, human factors studies how people react 23 Ergonomics Society. I'm also a menber of the Institute24 and act in various situations? 24 of Industeial, Engineers, and I'm a menber of 1EZ3, the25 A Yes, that would be very appropriate because we |25 Institute of Zlectrical and Blectronics Engineers, and aPage 7 Page 91 do study how people act and react, and how ve would 1 few other societies, But those are the most relevant:2 expect for then to respond in situations, 2 technical societies,3 Q ALL right. what is your educational 3 Q Have you ever received any awards or honors as4 background? 4 a result of your work in human factors?5 AT have three degrees in engineering, a 5 A Ihave. I've been awarded best paper6 hachelors, masters, and doctorate degree all in 6 competitions by the Institute of Industrial Engineering.7 industrial engineering. And I'm also a certified 7 have received a recognition from the Florida8 professional erganomist. I've also had additional study | 8 Engineering Society. So I’ve received mmerous forms or9 in the Field of biomechanics with short courses at MIT | 9 recognition throughout my career for my work,10 after I was on the faculty there. 10 Q Have you published any works or papers?nu Q Okay, And you're -- you are currently a 1 A Thave. I've published over 100 scientific12 professor at the University of Central Florida? 12 articles. I've written four books including anB A Tam. However, I'm -- I'm currently -- Iwas | 13 ergonomics textbook that is used internationally. 80u an 14 Tive done a m dng around the15 Foundation on assignment to help them lead and direct 15 world in ergonomics and biomechanics.26 the National Innovation Corps. 16 Q And -~ and do you actually head a lehoratorya7 Q = And as a professor, do you actually teach 17 at the University of Central Florida?38 classes at the University of Central Florida? 18 A Ido, I'm the directar of the ergonomics19 A Ido. I teach classes every semester. 19 laboratory.20 Q Okay, And -- and are you the head of a 20 Q and do you, in the field, conduct actual21 department or a laboratory? 21 projects with students that are PhD candidates?2 A Lam, 1 am the director of the ergonamics aa A ila. i y23 laboratory that's located within the College of 23 candidates and guide their work. And so I've worked24 Engineering and Computer Science in the Department of | 24 with a nunber of students in that capacity.25 Industrial Engineering, 25 Q Okay. And you were hired by myself on behalf www.uslegalsupport.comPamela McCauley August 20, 2018 10 to 13Page 10 Page 121 of Mr. and Mra. Campbell in this matter? 1 A That is Mr. Campbell.2 A Thatts correct. 2 © Ind thie is a view from the outside of the3 Q And you were hired initially to act as a 3 store?4 consultant on our behalf? 4 A That's correct.5 A That's correct. 5 Q and the ~~ the opening that we see with these6 Q And you were asked to review the facts 6 curtains, that's the opening Mr. Campbell is going to go7 involved in this case, and the location where this 7 through?8 incident happened, and some videotape of the incident, 8 A Yes, that's correct.9 and advise us as to whether or not there are any human | 9 Q Okay. All right, Let me see what -~ do10 factors issues involved? iG Yaa -- did yea also -- wie you wane with -- to the1m A That is correct. 31 store, did you also go in the store?2 Q All right. Now, you are aware that the 2 A In the hack of the store? Yes, I did.13 factual basis for -- for this case involves a fall that | 13 Q All xight, and let me show you a couple of24 occurred at the Publix at the Greenwise Market in Palm | 14 pictures here. If you could show them to the jury? Did15 Beach Gardens? 15 these -- do these pictures depict the configuration of16 A Yes, Tam. 16 the back of the store? If you could hold those up 6017 Q Okay. And -- and that happened in dune of 17 the videographer can get. those?18 2014? 18 A Yes, ‘these pictures depict the back of the19 A Yes. I'm avare of it, 19 stove on the site visit -- during the site visit. so20 Q and -- welll, did you have the opportunity to | 20 this one --21 review some security video footage that was captured by | 21 Q And did you ask Mr, Campbell whether or not22 Publix from inside and outside the store of this 22 that accurately depicts the configuration of the store23 particular incident? 23 on the date of the accident?24 A Yes, I did have the opportunity to review both | 24 A Yes, I did,25 of those videos. 25 Q And what did he tell you?Page 11 Page 131 Q and this particular incident involves a 1 A Bnd he said yes, it does.2 situation where tir. Campbell was delivering sone boxes | 2 Q All right. So these pictures show us what the3. to Publix through their -- what we call the back door or | 3 back of the store looks like? Okay.4 the loading dock? 4 A That's right.5 A That's correct. 5 Q All right. Now, in this case, this involves a6 Q Okay. And did you actually go in and inspect 6 situation which Mr. Campbell tripped as he came through7 these premises? 7 this entrance over what's sometimes referred to as a8 A did, 8 stock float?9 Q And did you interview Mr. Carpbell? 9 A Correct.10 A Idid, 10 Q Okay. and did you have -~ ask Mr. Campbell toi Q kay. and did you do some research in your 11 take a stock float that was similar to the one he12 areas of expertise? 12 tripped over and place it in a location where he thoughtB A Yes, I did. 13 it was at the tine that he fell?M 2 ; Aad an “ A Yes, T did.15 you sowe photographs, is that correct? 15 Q And did you take a picture of that?16 A that is comect. 16 A Yes, I did,a Q All right, and do you have, for example, a -- | 17 @ — Could you show that to the jury?18 a photograph today that you can show the jury that 18 A Yes.19 depicts the -- the opening or the entrancevay that -- | 19 Q All right. and -- and when you asked20 that is the subject of -- of this particular clain? 20M. Campbell to do this, did he indicate that this --au A Yes, Ido. 21 that he placed this stock float in approximately the2a @ Gray, ind if we can just -- you are just 2 ACG IE the date of Wie accent?23 © showing me one of them. Okay. If the camera can get 23 A Yes, he did. Re said this is the location24 that? Now, this particular picture, there's a mm in -- | 24 that it was in on the date of his accident.25 in blue there. Is that Mr, Campbell? 25 Q You got to tum that so that the www.uslegalsupport.comPamela McCauley August 20, 2018 14 to 17Page 14 Page 161 videographer -- 1 that other entrance that you observed?2 Rh, excuse me, That this is the location of 1 2 A Yen, This is a closer --3 the stock float on the day of his accident. 3 Q Tum it around.4 Q And he identified that stock float as being 4 A Excuse te.5 one similar to the ane that he tripped over? 5 Q There you go.6 A Yes, he did, 6 A Acloser view of the picture. Yes, of the1 Q Okay. Now, did you also have Mr. Campbell 7 other exit --8 stand next to the stock Eloat so that you wild get a 8 Q Okay, All right.9 sense of where -- how high the stock float was off this | 3 A -- and entry.30 ground so that you can apply that knowledge to tne ia «fae [ia going ta show you one of your cher11 ~~ opinions you formed? 11 pictures. Here is a picture of the -- the -- that12 A Yes, I did. 12 depicts the other entyance. And docs thia picture show2B Q And let me show you a picture here, Is this a |13 the sane stock float that you -- Mr. Canpell identified14 picture of Mr, Campbell standing next to the stock 14 as being similar to the one that he tripped over?15 float? 1b A Yes. This picture does show that, the6 A Yes, it is. 16 same stock float.17 Q All right. And Mr. Campbell, did he indicate | 17 Q And it shows that that stock float -- there's48 to you that in that picture, he was depicting 18 room for that stock float to -- to -~ to be removed and19 approximately where he was when he first came in and 19 placed a near countertop that is next to it with a20 encountered the float? 20 garbage can?a MR. FIORELIO: Objection. Leading. a MR. FIORBLLO: Objection. Leading.2 ‘A That i what he was depicting, yes 22 A Yes.23° BY MR, LUTTTER: 23° BY MR, LUTTE:4 Q Okay. Well, there was an cbjection. So I'm | 24 Q Let me rephrase that question, When you met28 going to restate my question, 25 with Mc. Campbell, did he indicate that when hePage 15 Page 171 A Owy, 1 delivered boxes, that there was sone sort of a clerk at2 Q What did you ask Mr. Campbell to do in this 2 Publix that was located at a desk here, and he would3 particular picture? 3. check thase boxes in?4 A asked Mr. Campbell to show me where he -~ 4 A Yes.5 how he cane into the entrance ag it relates to the 5 Q All right.6 position of the cart. 6 A Yes,7 Q Okay. Now, in addition to the entrance that | 7 Q And in this picture that you'xe showing the8 Mr. Campbell actually went through as part of 8 jury right now, does this depict the location where9 hig -- and 1°21 show you one of the other 9 Mr, Campbell indicated that there was a clerk where he10 photographs. Is there another -- did you observe 10 would check boxes in when they'xe there?11 another entrance and exit in the Publix? ct A Yes,12 A Yes, I did, 12 Q All right, And is that that stool. there?B Q All right. So let me show another photograph | 13 A Yes,u F amy? u © Okay. And ~~ and we see the stock float is15 A Okay, Yes. 15 someshere near that stool, but ~~ but not in this16 Q ALL right, And where -- can you point out 16 doorway?11 where the other entrance is? aT MR. FIORELIO: Gbjection, Leading.18 A This is where the other entrance and exit ~ | 18 BY MR. LUITIER:19 Q Okay. 19 Q Is -- is there room enough based upon your20 A -= dg in the back of the facility. 20 observations on the day that you went there, for thea Q Okay. 21 stock float to be outside of the ingress and egress ofB A Gan you see that oxay? 22 Gils ~~ the & a+ Git StL2B Q Okay. Yes. 23 be over near the clerk's desk?24 A Okay. mw A Yes, there is room for it.25 Q and is -- ig this picture an actual picture of | 25 Q Okay. Now, in the area of ergonomics and www.uslegalsupport.comPamela McCauley August 20, 2018 18 to 21Page 18 Page 201 human factors ~~ 1 I'msaying. So the more times ~~ when I say navigate,2 A Yes. 2 I'm weaning walk, ‘The way that you interact in a3 Q == are you aware of something that's called 3. physical environment. For example, if there's a comer4 cognitive mapping? 4 store that you go to every week in your neighborhood --5 A Yes, Tam, 5 and 0 excuse we -~ let me show you what I'm talking6 Q Okay. Could you explain to the menbers of the | 6 about here, Mr. -~ Mc. Luttier.7 jury what cognitive mapping is? 7 So if I have a comer stare that I go to every8 ‘A Certainly. Cognitive mapping is a process 8 moming to get my coffee on my way to work, then I am9 that the huran brain goes through when you go into a 9 going to go down this street every single day. Say I've30 plysicaa . Baa uncc it does, the human mind) 10 been dolng this for, what, 200 tines, and I tum left,1 actually creates a wap -- a wental map in our head of | | 11 and I mow I'm going to be xight here at the coffee32 our physical environment, and this allows us to walk © 42 shop. But if on the 301 time £ tum left, I'm going to13 into environment: and Imow how to navigate around it. 13 expect that I'm just going to eafely walk into the14 And the more tines we'ze in a place, the more that 14 coffee shop, but if someone -- if they're cleaning and15 cognitive map -- or mental map is strengthened. 15 washing windows, and they've got a ladder there, I'm16 Q Isa-- isa cognitive map, is that a 16 going to tum and walk into this ladder if I dida't have17 conscious or a subconscious thing that happens in the | 17 the benefit of viewing that before I got in that spot.18 mind? 18 So my cognitive map tells me that I can expect,19 A Oh, no. It's -- it's very much a subconscicus {19 the sama thing. So I'm walking to work. Walking down20 thing. You don't tell yourself to create a mental map | 20 the street. I'm going to tum left and go get my21 of this place. You're -- that is a very natural 21 coffee. Go I've done this 300 times. So I would expect22 subconscious response that: happens, And it's one of the | 22 that there will be nothing different that I would23° ways that: hunans can navigate in physical environment | 23 expect. And I just walk down here and get my coffee.24 safely, 4 But, again, if there's an obstruction and --25 Q All right, and does it -- does a cognitive | 25 when I tum the comer, I'm going to walk into it.Page 19 Page 211 map get -- what makes a cognitive map get stronger in 1 Q Okay, And -- and you -- you mentioned that2 one’s subconscious? 2 you interviewed Me, Camphell. and did you also read his3 A Well, the number of times that you're in that 3 deposition?4 environment. So the number of times that you're in the | 4 A Yes, I did.5 environment, and you navigate that environment, and yor | 5 Q And could you tell the menbers of the jury6 get the same result, So the -- the fifth tine, the 6 aged upon your interview and Mr. Camphell's deposition,7 tenth time, the twentieth time you're there, you -- that | 7 how many times he had traversed or crossed this loading8 map gets stronger and stronger. 8 dock and walked through this back door that had the9 Q All right. And what is the subconscious hmwn | 9 plastic curtains to deliver boxes to Publix?10 expectation based upon one's cognitive map? a0 A Certainly. He said that he went for several1 ‘A Well, your -- your cognitive wep -- once you [11 years every week, Sometimes more than once a week, and12 have a cognitive map that is created, and you don't see {12 he had been there about 500 tines.13 anything different when you've in that enviroment, you | 13 Q Okay, Did -- did Mr, Campbel} tell you14 empect for the same thing to hapnen wien you enter that | 14 vhether or not he had ever experienced an obstruction on15 envixoment. from a physical navigation perspective. 15 the other side of the curtain —~16 Q Okay. So let me use a -- a comple of 16 MR. TORRID: Objection.17 digferent tems to make sure that I'm -- 17 BY MR. LOTIER:18 A Okay. 18 Q ~~ when he walked through the curtain?19 Q -- saying the sane thing you are. When you | 19 MR, FIORELLO: Objection, Relevance.20 say physical environment and navigation, is that the 20 A No, Mr. Campbell said he had never21 same as saying if one walks a particular path or 21 experienced --2 airection Gh actasions, the wore tines they walk ) 22 Q tei, fold an,23. that, the more times they -- they get a stronger 23 MR. LUITIER: What was the objection?24 cognitive map of what to experience? 24 MR, FIORELO: Relevance,8 A Pbsolutely. And that -- that's exactly what | 25 BY MR. LUTTIER: www.uslegalsupport.comPamela McCauley August 20, 2018 22 to 25Page 22 Page 242 Q Gkay. Go ahead. You can go ahead and answer | 1 A Yes, I've been -~2 it. 2 MR. PIORELIO: Hang on. Objection and3 A Okay, No, In my interview with Mr. Campbell, | 3 relevance.4 he said he had never experienced any obstruction vhen he | 4 MR. LUTIER: Go ahead,5 walked in this space those 500 tines and proceeded 5 MR, FIOREUO: Calls for the ultimate6 through the curtain. 6 conclusion,1 Q Okay. Did you see any evidence anywhere else | 7 MR. LUITIER: And you still can testify.8 in the case ~~ 8 THR WITNESS: Okay,9 MR. PIORELLO: Objection. 9 BY IR, LNTIER:360 BY AR. OTTER: iB & fa*g it TeasGiabhe for iin C6 act as te had daan Q =+ that there had been any situation where 21 the past?12° Me, Campbell, on any prior occasion over the period of | 12 MR. FIORELLO: The same objection,13° tine when he went through this door, that when he went | 13 A Okay, Yes, Tt was very reasonable for -- it14 through these plastic curtains, he encountered an 14 was reasonable for him to act that way, and it was15 obstruction on the other side? 15 scientifically expected based on what we know about16 MR, FIORSLIO: Objection, Relevance and 16 cognitive and mental maps.7 vague. 47 BY MR. LOTTTER:18 BY MR. IOTTIER: 18 Q Okay. 1 want to now awitch to a topic that --19 Q You can go ahead and answer it. 19 that -- that we'll call -- and correct me if -- if I use20 A I did not see any other information in the 20 the wrong terminology. I kmow terminology is inportant.24 case material that would indicate that there was an -- | 21 But 7 want to talk about something that’s sometimes22 had been a previous obstruction. 22 referred to as the field of view.2B Q Okay, And did -- for the period of time that | 23 A Okay.24 Mr, Campbell said he'd heen using this entrance and 24 Q What: ie the field of view?25 going through it and delivering boxes to Publix, was 25 ‘A The human field of view is the cone or anglePage 23 Page 251 that over a period of years? 1 that a human has when they are walking in front of them2 A Yes, it was. 2 or what they see. So it’s about 55 degrees from3 Q All xight. So in your opinion, based on your | 3 horizontal and approximately 60 degrees -- excuse me -~4° expertise, how strong would Mr. Cangbell's cognitive map | 4 55 degrees from the vertical and 60 degrees on the5 be in terms of what he would expect if he were to go 5 horizontal.6 across the loading platform with boxes and go through 6 Q Okay. As one walks forward --7 these curtains? 7 A ub-huh,8 HR, FIORELLO: Objection, Speculation. 8 Q -- does their field -- field of view go9 A Well, scientifically speaking, 1 think he 9 forvard as well?10 would have a very strong cognitive map because as T 10 A Of course,11 mentioned, repetition impacts the strength of the map. i Q All right,12 And so if this mental map had been -- he'd experienced | 12 A OF course, the field of view moves with the13. this over 500 times, it is scientifically reasonable to | 13 human.14 eect that he would have a very strona cognitive map | 14 O All right, So are there ~~ is there -- are18 associated with navigating in this enviroment. 15 there any studies or research done that tells you what16 So he would expect that just as the other 499 |16 Mr, Campbell's field of view would be in terms of how17 or 500 tines he had gone through this envionment, 17 far in front of him he would first begin to visualize18 through the plastic curtains, that: he would safely 18 materials?19 navigate this just as he had before. 19 MR. FIORELIO: Objection. Hearsay.20 BY MR. LUNTTER: 20 A Absolutely. Scientifically speaking, thea Q Right. And in your opinion, is it reasonable | 21 research has shom -~aa Ge. Ceampoenl i Ui 22 By eR, IAT TiER?23 upon his cognitive map, to go through the doors in the | 23 Q Okay, Let me ask you. First, let me -- there24 same mamer ~~ or through the curtains in the sane 24 was an objection, so --25 wanner as he had done in the past? 25 A Ob, okay. www.uslegalsupport.comPamela McCauleyAugust 20,2018 26 to 29 Page 26Page 28 1 Q Have you -~ in your area of expertise, have 1 he can't see -- if he moves his head, that he can't see2 you studied measurements for a person's field of view? | 2 something closer than that, right?3. And in particular, how far a person's field of view is | 3 A Well, of course, you can see that. And also,4° in terms of where they Einst begin to see objects? 4 lmmans use foveal vision when we walk. And that's your5 A Yes, I have studied that, 5 vision in front of you. But we also use peripheral6 Q Okay. And are there research papers about 6 vision,7° that? 7 QO Okay.a A There are research papers about that. 8 A So owr peripheral vision also tells -~ gives9 Q And have you studied those? 9 us clues, So anything that is seen in that18 A Lada, 20 Biixoment <= that's in tint cmuironment, cur ving)1 Q And for how many years have you been studying [1% systems can pick that -- senses can pick that up.12 a person's field of view, and the point in front of them | 12 Q Allright. So if -- if a person -- if you can13 when they first start to experience something? 13 just stand there -- if a person is walking forward --u A Well, I began studying it over 30 years ago, | 14 A Yes.5 Q Okay. 5 Q ~~ are they -- based on you research and your16 ‘A And as a professor, for almost 27 years nov. | 16 expertise, do they ~~ are they looking forward. andW Q All right. and -- and is there a scientific [17 that field of view is where they're observing things?18 term for the point in -- in front of someone when they | 18 A That is correct, The scientific literature19 first begin to pick something up? Is that -- is that -- |19 says that you have this field of view, And as you're20 does that point have a mane in the science or anything? |20 walking, you're moving foxvard, that field of view isa A Well, it -- it -- we generally refer to the | 21 advancing with you as you move forward.22 field of view because it’s not a single point. But it's | 22 Q Okay. So if you put up your angle --23° an entire space and area where you would expect a 2B A Yes, Here's ny angle.24 Inman -- the human eye to be able to have visual 2 Q ~ for example, if you are walking forward ~~25 contact. 25 A Yes.Page 27 Page 29z Q Okay, All right. So does ane’s field of 1 Q = something don here below your field of2 view, the point that they first begin to obsexve 2 view, would the person ordinarily see that?3 something, does that change based on the height of a 3 A They wouldn’t have --4 person? 4 MR, FIORELLO: Objection. Hang on,5 A It does matter. 5 Gbjection. Calls for speculation.6 Q Mil right. 6 THE WITNESS; Yeah,1 A Yes, it does matter. 7 BY MR. LUTTIER:8 Q ALL right. Did you read in Mr. Campbell's 8 Q Okay.9 deposition how high it was? 9 A They wouldn't --10 A Yes. 40 Q — Based on your research?n Q How tall it was? a A Based on the scientific literature, they would2 A Yes. 12 not ordinarily see that.B Q All right. Based on his height -- B Q Okay. Now, what happens to your field of viewu“ A Yes, 14 as you move forward?5 Q == at what point in front of Mr, Cambell does | 15 A So as you move forvard, your field of view16 he first begin to see things? 16 moves forward with you,1 A Okay. So he's 6 feet 1 inches tall. Sohia | 17 Q = Okay.18 field of view where he would begin to see things is 18 A Brouse me, I think my microphone is caught19 between 12-and-a-half and 13-and-a-half feet. 19 here.20 Q Okay. Now -- 20 Q All right.a A Okay, So this ip -- when I say field of view, | 21 ‘A But as you nove forward -- Jet me step hack aa Gas one's avis tS acd, Th Id-and-asialf to 22 Metle bit. But as you move fomard -- so is -- if this23 13-and-a-half feet in front of him is where his initial }23 is the field of view as you're moving forward, your24 gaze would be vhen he's walking. 24 field of view is moving forward with you. So it's25 Q Okay, ALL right. Now, that's not to say that | 25 moving further down. www.uslegalsupport.comPamela McCauley August 20, 2018 30 to 33Page 30 Page 321 Q Okay. Now, if —~ if, when you first begin to | 1 Q All right. So if we put your 50 degree2 walk, and you have your field of view, if -- if you are | 2 curtain, will he see something that's by his feet or say3 able to observe something, then -~ then you -- is it 3 a--a12 to 16, 18 inches in front of his feet --4 tme that a person will note that object that they see? | 4 MR, FIORELIO: Objection.5 A Absolutely. 5 BY MR. LOTTIER:6 MR. FIORELLO: Objection. Leading. 6 Q ~~ when he's standing right in front of those7 ~~ ~BY MR, LOTTIER: 7 curtains?a Q Okay, 8 A to,9 ‘A Absolutely. I wean in my field of view right | 9 MR. FIORELLO: Objection, Calls for30 ioe, I see the -- the blue rack, $6 T wala == because 20 speciation,11 that's completely in uy field of view. So if there's an | 11 A ‘That is not in his field of view.32 object, or obstruction, or there's something there you 42 Selentifically speaking --13 would definitely ~~ 13° BY MR. LUTTIER:4 Q Right. u Q Gay.15 A = see it in your field of view. 15 A that's not in his field of view. ‘that -~16 Q If a person doesn’t observe any object -- and [16 but if ~~ so, no, it's not. That's not gaing to be in17 in this case, for example, Mr, Campbell, as be walks 17 his field of view.18 towards these -- this door with the plastic curtains, if | 18 Q All right. Now, is that based on your19 he doesn't see an object as he moves closer to that 19 expertise and the research that you've dane?20 door, what happens to his field of view? 20 A Yes,a A Well, as he moves closer to that doar, the an MR. FIORELLO: Sane objection,22 field of view -- for example, if I have a pen right here | 22 BY MR, LUTTIER:23° on the floor, and I'm back here, it may be in my field | 23 Q And the -- and the articles that you've24 of view now, But as I move forvard, it's no longer 24 researched?25 going to be in ny field of view, And so if it were not | 25 MR, FIORELIO: The sane objection.Page 31 Page 332 obvious, it would then no longer be in wy field of view | 1 A Yes, it is. That is based on the human2 when I got sight in front of it. 2 factors Literature --3 @ I want you to assume that -- that -- and -- 3 BY MR, IATTIRR:4 and based on your interview with Nr. Campbell, did he 4 Q All right.5 advise you whether he saw this stock float or this cart | 5 A - and articles I've looked at.6 on the other side of these plastic curtains? 6 Q And -- and when you had Mr. Canbpell stand1 ‘A Mr. Campbell said he did not see the atock 7 next to this cart that he fell over, vas it ankle8 float. 8 height?9 Q All right. So if ve assume that Mr. Cambell | 9 A Yes.10 didn't see it, and when he first picked up his boxes and | 10 MR, FIORELLO: Objection.11 started walking towards the doar -~ 11 BY MR, LOTTTRR:12 A Yes. 2 Q So i€ you could just tell the jury if he'sB Q his field of view would continue in the 13. standing immediately in front of the plastic curtains,M_ sane 55 dearee cone, correct? 14 as he stands there with the boxes in his hand, if he has15 A That is correct. 15 anomal field of view of your 50 degrees, is he going16 Q ML) right, So when he was inmediately -- in [16 to see what's at his ankles?17 your opinion, when he's immediately in front of those | 17 MR, PIORELLO: bjection, Calls for18 plastic curtains -- 18 speculation,19 A Yes, 49 A Wb.20 Q == where is he going to be looking and where | 20 BY MR. IUTTIER:21 will his field of view be? aa Q Okay.a A fig fica of view sill remain the soc sh 22 2 ke23. he's in front of the curtains as he's atteapting to gaze | 23 Q And that’s ~~ that's the hutan factors aspect24 in front of him, okay? Because that's how hununs view | 24 of what: people see when they're actually walking, is25 ven they've walking. 25 that carrect? www.uslegalsupport.comPamela McCauley August 20, 2018 34 to 37Page 34 Page 361 ‘MR. FIORELLO: Objection, Leading, 1 any court.2 A That'a correct. ‘That's not “just Mr. Cambell. | 2 WR, DOTTIER: Okay. I -~ I doa't have any3. ‘That's what humans actually see when they'xe walking. 3 other questions, Doctor. Thank you.4 That's hat the scientific and the hunan factor -- the | 4 ‘THE WINES: Okay.5 Inman factors scientific Literature has denonstrated 5 ‘CROSS-EXAMINATION6 through research. 6 BY MR. FIORELO:7 BY MR. EUTTIER: 1 Q Good afternoon, Dr. McCauley.a Q Other than your opinions concerning the field | & A Good afternoon.9 of view and cognitive mapping, do you have any other 3 Q SoT represent Aristides Marte and Yanire10 opimiais in chis case? we , and I appreciate you sitting dow with usa A Ido not. i12 Q Okay. Now, Doctor, you ~~ you obviously -- | 12 A Sure.13 you -~ you billed us for your tine, correct? 3 Q I'm going to jump around a little bit. Butu A Yes, I have, 14 counsel for plaintiff asked you some questions I need to15 Q And you've been paid? 35 get to,16 A T have, 16 A Okay.a Q Chay. And did you bil? us in accordance with | 17 Q With respect to this case, you were paid about18 your standard -- standard hourly rates? 18 9 or $10,000 in total ~~ well, strike that.19 A Yes, I did. 19 You've been paid a total of $60 something20 Q Okay, And what's your hourly rate? 20 hundred in this case to date?a ‘A My hourly rate is $450 an hour for case a A That ~~ that sounds about: right.22 material review and analysis. 22 Q And then, you've also billed -~ since your2B Q Okay, And that's -- 23 last invoice in February about 3- to $5,000 ofer A Yes. 24 additional time, is that accurate?25 Q => that's for a doctorate, BHD with 26 years’ | 25 A Well, that's -- that's coning, I haven't.Page 35 Page 371 experience in industrial engineering? 1 billed that -- that yet, so.2 MR, FIOREGO: Objection, Bolstering. 2 Q You performed the work that you will bill --3 BY MR, LUTTIER: 3 will be billing for to the plaintiffs in this case?4 Q Correct? 4 A That's correct.5 ‘A Correct. 5 Q All right, You mentioned before that 206 Q Okey, And is that the sane hourly rate you 6 percent of your career and your work is dedicated to7 charge anyone elee that retains you for purposes of your | 7 expert work?8 expert services? 8 A Right.9 A Yes, it is, 9 Q We are sitting in a building here called the10 Q All right. And about -- can you tell menbers 10 T-STEM Institute?11 of the jury about vhat percentage of your time you spend | ii A T-STEN Offices.12 doing work Like this that ve comonly xefer to as expert | 12 Q TSIEN Offices.13 witness work versus your academic work? B A Yes,14 A About 20 narcent of uv time is spent in expert. | 14 Q Separate and apart from your work as a15 witness work. Maybe, you know, 20 percent, And then 80 |15 university professor for UCF?16 percent of my tine is spent in my university research, | 16 A Yes, it is separate and apart from my work as17 and guiding my PhD students, and teaching my classes. © |17 a university professor.18 0 Gkay. And have you qualified as an expert 18 Q And you have a separate office for UCF?19 witness in circuit courts throughout the state of 13 A Yes, I do.20 Florida? 20 Q This office is strictly for your expert work?a A Yes, throughout the state of Florida and au A Well, it's strictly for my 7-STH work.“a 22 T-STas Work inchades caper witucss work a3 well 232B Q Okay. And have any of your opinions ever been | 23 outreach to wonen to support then in their engineering24 stricken by any court? 24 careers,8 A T've never know my opinions to be stricken by | 25 Q And that would be separate and apart from your www.uslegalsupport.comPamela McCauley August 20, 2018 38 to 41Page 38 Page 401 career as a professor? 3 violated -- taken by Mc. Campbell at the Greenwise2 A That. is correct. 2 Publix violated the Florida fixe prevention code,3 Q All wight. You gave an affidavit in this 3 A Correct,4 case, Dr. NoCauley, back in March of 2018 -~ March 15th. | 4 Q And those were all directed tovards Publix?5 Tim going to mark it as exhibit -- we've marked it as 5 A That's correct.6 hibit 2 before. So we've going to mark it today as 6 Q Today when you were asked by counsel if you7 Txhibit 2, T'm going to show you that and ask you to 7 have any other opinions, you didn't mention those,8 review it. 8 BR Correct.9 A Okay. Okay. 9 Q Your opinion has changed?rity @ «Is Ghat your siguatuze on the last page? ib A weal, Uh - 1 did, F looed atu A Yes, it is, 34 additional -- I wouldn't say -~ T would need to do2 Q ‘That's your affidavit? 12 addition analysis. I went back and looked at the video,B A that is ny affidavit. 13 And upon observing that the cart was in the doorway foruu Q We've also narked previously the binder in 14 19 seconds, ckay. So -- and then I locked at the code,15 front of you as Byhibit 1 that contains the photographs 15 and I just -- I tried to be very thorough and complete16 that you were shom by comsel. And also, the initial | 16 and objective in my analysis.17 opinions you had in this case? uv 3nd so the cart was there for 19 seconds, And18 A That's correct. 18 then, there was another exit: that was there, which I19 Q As well as your CV and other materials? 19 think I choved in the photo, And so I will -~ I vas20 A That's correct. 20 concerned that my opinion may not -- with the terma Q The affidavit -- may I have that -- 2% temporary, that it my be a concern, So ny vas22 A You may. 22 that I needed to do additional research on vhat the2 Q - Dr, McCauley? ‘Thank you, In your 23 scientific literature states is temporary, and I didn't24 affidavit that was done in March 2018, you were asked | 24 have time to find or to do that additional analysis. So25 earlier today whether or not you have any other 25 that's why I stepped back fram those opinions, so.Page 39 Page 411 opinions, and you said no. 1 Q Okay, 80, Doctor -- I'm sorry. Are you done?2 A Correct. 2 A Yes, So =~ but, no, What I'm saying is when3 Q In March of 2018, you swore to tell the truth | 3 I wrote that, yes, that was true, But I'm telling you4° when you gave this affidavit? 4 after I did additional analysis and began to understand5 A Yes, I did, 5 60 what do mean we mean by temporary? Is there anything6 Q And you made the opinions that on — the 6 in the scientific Literature that I can point to that7 paragraph 11 -- on the date of the incident, June 18, 7 says vhat temporary is which would constitute a8 2014, the route taken by Michael Campbell to enter the | @ violation,9 Greenwise Publix in Palm Beach Gardens was not free and | 9 Q Okay. So just so wetre clear, the --10 obstructed -- uncbstructed. It was obstructed by a cart |10 tr. Campbell had his fall in 2014211 omed by Publix. ‘That was your statement? n A Yes,12 A ‘That was my statenent. 2 Q You went out there for -- to the Publix inB Q And also, the next paragraph, you indicated [13 2016 for an inspection?4 that on that save dav, the route taken by u A Correct.15 Michael Campbell at the Greenvise Publix in Palm Beach | 15 Before you went out there, you had alveady16 Gardens violated OSHA regulations. 16 veviewed the video?7 A That's correct. 0 A Correct.18 @ That was your opinion then? 18 Q — You had already seen the -- the layout: of the19 A That. was my opinion. 19 Publix,20 Q You've also made the opinion that the -- on | 20 A Correct.21 that sane day, the route taken by Michael Campbell at | 21 Q You'd apcken to plaintiffs' counsel,vrs 2 A Corre,2% Florida building code. 2 Q Mr, Campbell's counsel. And then two yearsm4 ‘A That vas ny opinion, yes. 24 Vater in 2018, you drafted an affidavit where you made25 Q And you also made the opinion that the route | 25 the opinions that Publix violated these codes -- www.uslegalsupport .comPamela McCauley August 20, 2018 42 to 45Page 42 Page 441 A Yes. 1 distance of Mr. Campbell's stride length, right?2 Q =~ and Publiv violated Mr, Camhellts inress | 2 A Richt. 1 did calewlations to sunport the3 of the building, is that correct? 3. human factors analysia,4 A That's correct. 4 Q and you did -- you estimated the distance of5 Q And today, your deposition five months later, 5 the cart behind the plastic straps based on vhat6 you have a different opinion? 6 Mr. Caupbell told you?7 A Well, yes, But I just explained why. Yes, my | 7 ‘A Based on what Mr. Campbell told me and the8 opinion to date is that I need -~ I would need to do 8 site visit.9 more research on what constitutes a temporary 9 Q Okay. And the photograph you showedi obstruction. Go i need move scientific foundation for | ii Mr, iattier earlier about the -- Me, Campoeil atanaiag1 that. And go that's vhy I backed away from those 31 next to the cart, and the position of the cart in that12 opinions, Now, what T said there in my affidavit is 12 photograph ~~13 true, But my issue is here vhat constitutes a temporary | 13 A Yea,14 obstruction. 4 Q ~~ that was based on what Mr. Campbell told15 Q And, Dr. McCauley, since March of 2018 when | 15 you where he thought the cart was?36 you wade that affidavit, you have done no additional, 16 A Well, that was based on what Mr. Campbell told17 research to find out what the use of the tem 17 we as well as my observation of the surveillance video,18 © “temporary” means, correct? 18 the Publix surveillance video,19 A I have not, 19 Q Okay. You mentioned -~ you've done no20 Q Okay, And in your affidavit of March of 2018, |20 measurements from the surveillance video to try and21 nowhere do you indicate anything that Mr. Marte or 21 detenmine how far that cart was actually behind that22 Yanire Enterprises did inpermissible of these codes, is | 22 curtain, correct?23 that correct? 23 A Measurements from the surveillance video?24 A I don't know -- no, I didn't. So I don't know | 24 Q Yeah, You haven't tried to take any25 who ~~ well, never -- never mind. 25 measurements from the video or any still. framePage 43 Page 451 Q Dr. MeCauley, in -~ in your retention in this | 1 photographs of the video of how far behind those2 case, you've reviewed Mr, Campbell's deposition, right? | 2 curtains the cart was?3 A Correct. 3 A fo,4 Q You've reviewed Dr, Raward's deposition? 4 Q You estimated?5 A Correct. 5 ‘A Well, I estimated. But also, when I went to6 Q ‘That's the expert that we retained as 6 the site, I actually -- and Mr. Cam 

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