                             United States Court of Appeals
                                FOR THE EIGHTH CIRCUIT
                                      ___________
                                      No. 96-3158
                                      ___________
Jason Ray,                                      *
                                                *
       Plaintiff/Appellee,                      *
                                                *
       v.                                       *                                Appea
                                                                                 l
                                                                                 from
                                                                                 the
                                                                                 Unite
                                                                                 d
                                                                                 State
                                                                                 s
                                                *    District Court for the District
of
Wal-Mart Stores, Inc.,                        * North Dakota Northwestern
                                              Division.
       Defendant/Appellant.                   *
                                         ___________
                                                    Submitted:                         March
                                                                                       14,
                                                                                       1997
                                                             Filed:           July 25, 1997
                                         ___________
Before MAGILL,1 MURPHY, Circuit Judges, and GOLDBERG,2 Judge.
                               ___________

GOLDBERG, Judge.
      Jason Ray slipped and fell on a small puddle of undiluted liquid
handsoap in a public restroom of a Wal-Mart store in Minot, North Dakota.
As a result of his fall, Ray now suffers from two permanent vision
disorders, and he is no longer physically qualified to perform his former
job as an air traffic controller for the United States Air Force. Ray
brought this diversity action against Wal-Mart to recover damages for his
injuries, claiming that Wal-Mart Stores, Inc. (“Wal-Mart”) caused the
accident when it failed to take reasonable steps to keep the restroom
hazard-free.




       1
        The Honorable Frank J. Magill, was an active judge at the time that this case was
submitted and assumed senior status on April 1, 1997, before the opinion was filed.
       2
         The Honorable Richard W. Goldberg, Judge, United States Court of International Trade,
sitting by designation.
      After a trial, the jury found Wal-Mart partially at fault for the
accident and awarded Ray $11,856 for past economic damages and $216,909 for
future economic damages, for a sum of $228,765 in damages. After the trial
court entered judgment on the verdict, Wal-Mart moved for judgment as a
matter of law, or in the alternative, a new trial. The trial court denied
both motions.3 Wal-Mart appeals. It argues that Ray failed to prove that
Wal-Mart's negligence was a proximate cause of his injury, and that the
trial court abused its discretion when it admitted testimony on future
economic damages. We affirm the judgment of the trial court.

      Wal-Mart first argues that the trial court should have granted its
motion for judgment as a matter of law because Ray failed to prove that an
act or omission by Wal-Mart was a proximate cause of his accident.
Instead, Wal-Mart contends that it was “[i]n effect, . . . held to the
legal standard of res ipsa loquitur” because the trial court improperly
admitted the expert testimony of Dr. Stephen Rosen on how frequently a
business like Wal-Mart should inspect its restrooms. Appellant's Br. at
4-5, 18.

      We review the trial court's denial of a motion for judgment as a
matter of law de novo. Butler v. French, 83 F.3d 942, 943 (8th Cir. 1996).
In so doing, we analyze “the evidence in the light most favorable to the
prevailing party . . . .” Id. (internal quotations omitted) (citations
omitted).   We review the trial court's decision to admit Dr. Rosen's
testimony for an abuse of discretion. Loudermill v. Dow Chem. Co., 863
F.2d 566, 569 (8th Cir. 1988).

      Under North Dakota law, proximate cause is “that cause which, as a
natural and continuous sequence, unbroken by any controlling intervening
cause, produces the injury, and without which it would not have occurred.”
Andrews v. O'Hearn, 387




       3
       The Honorable Patrick A. Conmy District Judge for the United States District Court of
North Dakota Northwestern Division.

                                             -2-
N.W.2d 716, 727 (N.D. 1986) (internal quotations omitted) (citations
omitted). It “'arises when the injury is the natural and probable result
of the negligent act or omission and must be of such character as an
ordinarily prudent person ought to have foreseen as likely to occur . . .
.'” Reagan v. Hi-Speed Checkweigher Co., 30 F.3d 947, 949 (8th Cir. 1994)
(quoting Moum v. Maercklein, 201 N.W.2d 399, 402 (N.D. 1972)).

      Here, the theory of Ray's case is that Wal-Mart breached its duty to
maintain its store in a reasonably safe manner when it failed to implement
and to practice a regular program to inspect its restrooms.4 Ray argues
that it was foreseeable that this failure would decrease Wal-Mart's ability
both to detect and to ameliorate hazardous floor conditions, and thereby
increased the risk of slip and fall accidents similar to his.

      To prove his case, Ray offered the expert testimony of Dr. Rosen.
According to Dr. Rosen, a visual sweep of the restrooms every half-hour to
an hour is necessary in order to prevent slip-and-fall accidents.       He
further opined that Wal-Mart's inspection program was inadequate, and
inferior to industry standards. Wal-Mart contends that this testimony
should have been excluded for two reasons: first, because it lacked
sufficient foundation; and second, because it “provided the jury with an
incorrect legal standard--res ipsa loquitur--on which to assess the
evidence.” Appellant's Br. at 18. We find neither argument compelling.

      First, we note the that “the factual basis of an expert opinion
[generally] goes to the credibility of the testimony, not the
admissibility, and it is up to the opposing party to examine the factual
basis for the opinion in cross-examination.” Loudermill, 863 F.2d at 570
(citations omitted). While we have recognized that in some instances an




       4
         Under North Dakota law, “[a]n occupier of premises must act as a reasonable man in
maintaining his property in a reasonably safe condition in view of all the circumstances, including
the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the
risk.” Holter v. City of Sheyenne, 480 N.W.2d 736, 738 (N.D. 1992) (quoting O'Leary v.
Coenen, 251 N.W.2d 746, 751 (N.D. 1977).

                                                -3-
expert opinion may be “so fundamentally unsupported that it can offer no
assistance to the jury . . . [and] should not be admitted,” id. at 570
(citation omitted), this is not such an instance. Dr. Rosen has testified
as a qualified expert in thirty-five states, including North Dakota,
investigated over 4,000 slip-and-fall accidents, and testified at least 550
times in cases involving slip-and-fall accidents.

      Second, we note that Ray was able to draw on the conflicting
testimony of Wal-Mart's own witnesses to demonstrate that Wal-Mart did not
have a regular procedure for inspecting its restrooms. For example, Wal-
Mart employee Gordon Evenson testified that he usually cleaned restrooms
before 8:30 a.m., and that he would usually inspect the restrooms between
1:00 p.m. and 2:30 p.m. unless he was occupied with another task. However,
Lee Harris, the store manager, testified that the restrooms were inspected
every two to four hours, while Dan Conroy, the assistant store manager,
testified that the restrooms were inspected on an unscheduled basis,
usually determined by customer complaints. On the basis of this testimony,
the jury could have concluded that Wal-Mart did not regularly inspect it
restrooms which, in turn, created an unreasonable risk of slip-and-fall
accidents.

      We find that Dr. Rosen's testimony did not unfairly affect the jury
deliberations, nor did it transform the theory of Ray's case into one with
a res ipsa loquitur standard. Rather, we find that his testimony offered
the jury a framework to assess whether Wal-Mart breached its duty of care
to its customers.      Moreover, the trial court clearly and correctly
instructed the jury on the essential elements of a negligence claim. In
particular, it stated that Ray had the burden of proof for each element of
his claim, and it cautioned the jury that “[t]he mere fact that an accident
happened, standing alone, does not permit the jury to draw an inference
that the accident was caused by anyone's negligence.” Final Instructions
at F-10. Consequently, we cannot conclude that the trial court abused its
discretion when it admitted Dr. Rosen's testimony.         Accordingly, we
conclude that Wal-Mart was not entitled to judgment as a matter of law.




                                    -4-
      In the alternative, Wal-Mart argues that the trial court erroneously
admitted the expert testimony of Dr. Daniel Knighton on the issue of future
damages, and that a new trial is therefore warranted.         Dr. Knighton
testified that Ray had suffered future economic damages of $694,899.00
because the accident rendered him unable to pursue his career goal of
becoming a civilian air traffic controller. Wal-Mart contends that the
civilian air traffic controller industry is very competitive, and that
these positions are extremely difficult to obtain. Thus, because Ray was
neither certified nor employed as civilian air traffic controller at the
time of the accident, Wal-Mart claims that Dr. Knighton's testimony was
prejudicial, highly speculative, and without foundation.

      We review the trial court's decision to admit Dr. Knighton's
testimony in spite of the objections of Wal-Mart for an abuse of
discretion, noting that “[a] new trial is required only when necessary to
avoid a miscarriage of justice.” Gearin v. Wal-Mart Stores, Inc., 53 F.3d
216, 219 (8th Cir. 1995) (per curiam) (citing McKnight v. Johnson Controls,
Inc., 36 F.3d 1396, 1400 (8th Cir. 1994)). Applying this standard, we
conclude that a new trial is unwarranted because Wal-Mart has failed to
demonstrate that Dr. Knighton's testimony led to a miscarriage of justice;
while Dr. Knighton testified that Ray's future economic damages were
$694,899.00, the jury only awarded future economic damages of $216,909.00.
We are unconvinced that one figure is related to the other. Thus, if it
was an error for the trial court to admit this testimony, the error was
harmless.    See Fed. R. Civ. P. 61; McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 553-54 (1984); Farmland Indus., Inc. v. Morrison-
Quirk Grain Corp., 54 F.3d 478, 483 (8th Cir. 1995). Accordingly, a new
trial is unwarranted, and we affirm the decision of the trial court.

A true copy.
      Attest:
                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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