                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0592n.06

                                       Case No. 13-6128

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Aug 04, 2014
CAROLYN WOOD, et al.,                                )                   DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiffs-Appellants,                        )
                                                     )     ON   APPEAL    FROM   THE
v.                                                   )     UNITED STATES DISTRICT
                                                     )     COURT FOR THE MIDDLE
WAL-MART STORES EAST, LP, et al.,                    )     DISTRICT OF TENNESSEE
                                                     )
       Defendants-Appellees.                         )
                                                     )
____________________________________/                )


Before: MERRITT, COOK, and DONALD, Circuit Judges.

       MERRITT, Circuit Judge. This is a slip-and-fall case in federal court through diversity

jurisdiction. Wood tripped in front of a Wal-Mart store and injured her hand. She sued Wal-

Mart for negligence, and a jury found for Wal-Mart. Wood appeals and argues that the district

court erred in admitting Wal-Mart’s expert, refusing to offer an instruction on negligence per se,

and in admitting evidence concerning the lack of prior accidents at the spot where Wood fell.

We disagree and affirm.

                                                I.

       Wood tripped on a quarter of an inch lip on the sidewalk in front of a Wal-Mart store at

the point where the asphalt of the parking lot transitions into the concrete of the sidewalk. Wal-

Mart had designed the sidewalk to be flush with the asphalt of the parking lot, but apparently the
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Wood v. Wal-Mart Stores East, LP

asphalt had settled over time and created a very slight elevation where the two joined. Wood

suffered serious injuries to her hand and sued Wal-Mart in a Tennessee court to recover damages

under two theories: negligence for failing to repair and warn of the quarter-inch change in

elevation, and negligence per se because the elevation change violated applicable building codes.

Wal-Mart removed to federal court where the case was set for a jury trial.

       Wood’s per se theory relied on the interpretation of two building codes—specifically

whether Wood fell in a “means of egress” as defined by one of the codes. There was significant

dispute on this point, and the parties offered competing expert witnesses to interpret the codes.

Wal-Mart’s expert, an architect named Mr. Edwards, claimed that the codes offered by the

plaintiff did not apply because the transition area was not a “means of egress.” Wood’s expert,

an engineer named Mr. Johnson, claimed that the quarter-inch lip is a danger under any building

code, including those cited by Wood. Both parties moved prior to trial to exclude the other’s

expert. The district court allowed both experts, with the caveat that neither could speak directly

to causation.

       Ultimately, the district court rejected Wood’s proffered instruction on negligence per se.

As such, the jury was instructed on negligence generally and left to consider the various codes in

that context. The jury returned a verdict in favor of Wal-Mart, and Wood appeals.

                                               II.

       Wood argues that the district court made three errors. First, the district court erred in

allowing Mr. Edwards to testify.      Second, the district court erred in refusing to offer an

instruction on negligence per se. And third, the district court erred in allowing Wal-Mart to

admit evidence as to the lack of prior accidents at the transitional area in question. Wood’s

arguments are without merit.


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                                                 A.

        Wood argues that the district court erred in allowing the defendant’s expert, Mr.

Edwards, to testify because his testimony was not reliable under Daubert and because he

improperly offered his opinion on a question of law—whether the various building codes applied

to the transition at issue.

        As to her first point, the district court did not abuse its discretion in finding Edwards

reliable enough to testify. Wood argues that Edwards’ testimony fails the factors listed in

Daubert v. Merrell Dow Pharmaceuticals: that his testimony was not supported by generally

accepted authority or reliable testing, did not reflect industry standards, did not offer peer

reviewed or published opinions, and thus was unreliable under the Supreme Court’s standard.

509 U.S. 579, 592-94 (1993). But “Daubert’s list of specific factors neither necessarily nor

exclusively applies to all experts or in every case.” First Tenn. Bank Nat’l Ass'n v. Barreto,

268 F.3d 319, 335 (6th Cir. 2001) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,

141 (1999)).     Particularly in cases involving non-scientific experts, “the relevant reliability

concerns may focus upon personal knowledge or experience.” Id. “[W]hether Daubert's specific

factors are, or are not, reasonable measures of reliability in a particular case is a matter that the

law grants the trial judge broad latitude to determine.” Id.

        Edwards was a non-scientific witness whose expertise came primarily from personal

knowledge and experience. The record shows that Edwards had professional experience with the

specific building codes at issue as well as experience designing asphalt-to-sidewalk transition

areas during his 40 years as an architect of commercial buildings. There was ample reason for

the district court to conclude that Edwards was a reliable witness whose expertise and testimony

would assist the jury. “[A]buse of discretion is the appropriate standard to apply in reviewing a


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Wood v. Wal-Mart Stores East, LP

trial court’s decision to admit or exclude expert testimony,” and we find no abuse here. Morales

v. Am. Honda Motor Co., Inc., 151 F.3d 500, 515 (6th Cir. 1998).

       Wood’s second point is more thorny. Edwards’ testimony interprets building codes and

he is not a lawyer, yet the “interpretation of the city and state building codes is a matter of law

for resolution by the court and not a proper subject for testimony from at least that of a non-

lawyer.” Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 295 (6th Cir. 1999). But even if

allowing Edwards to opine on the application of the building codes was error, the error was

harmless. United States v. Johnson, 440 F.3d 832, 847 (6th Cir. 2006) (“We review the district

court's evidentiary decisions for abuse of discretion, and we will reverse only when we find that

such abuse of discretion has caused more than harmless error.”)

       The problem is that Wood has not connected the alleged error to her alleged harm. She

argues that allowing Edwards to testify was not harmless because it prevented her from offering

her per se theory to the jury, but she has not pointed to anywhere in the record showing that

Edwards’ testimony had any influence on the district court’s decision to refuse her per se

instruction. It is well established that the burden of illustrating error on appeal is on the party

asserting that error—here, Wood. S. Ry. Co. v. Lester, 151 F. 573, 575 (6th Cir. 1907). The

district court is “capable of interpreting [local codes] without the assistance of an expert.”

United States v. Smith, 421 F. App'x 572, 575 (6th Cir. 2011). Without any reason to conclude

that the district court considered Edwards’ testimony in refusing to offer the per se instruction,

we are not persuaded that Edwards’ testimony created reversible error.

                                                B.

       Wood faces a similar problem arguing that the district court erred in denying her

negligence per se instruction: she challenges the court’s decision without pointing us to any


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error in the court’s reasoning. At best, she offers us a number of reasons why she believes the

building codes apply in this case. But we do not review the evidence anew on appeal; rather, we

review the court’s “denial of a proposed jury instruction for abuse of discretion.” Ventas, Inc. v.

HCP, Inc., 647 F.3d 291, 305 (6th Cir. 2011). Regardless of how we feel about the application

of the codes, “[a] district court does not abuse its discretion simply because it exercises its

discretion differently than the reviewing court would have done in a similar situation.” Dubay v.

Wells, 506 F.3d 422, 434 (6th Cir. 2007). The district court’s reasoning is at issue here, and

without any substantive argument on that point, we find no abuse.

                                                  C.

       Finally, Wood argues that the district court erred in allowing Wal-Mart to present

evidence as to the lack of prior accidents where she fell because the evidence is not relevant and

too prejudicial. This argument is not persuasive. Wood correctly cites Tennessee cases for the

proposition that “foreseeability” was at issue in this case, but her interpretation as to relevance

and admissibility of evidence in those cases is flawed.

       None of the Tennessee cases cited by Wood suggest that a lack of prior accidents is

irrelevant to the foreseeability inquiry in a premises liability case—rather the cases show that

such evidence is relevant but not conclusive on the foreseeability issue. See Johnson v. Dupree

Oil Co., Inc., No. E2004-01433-COA-R3-CV, 2005 WL 1981799, at *7 (Tenn. Ct. App. Aug.

16, 2005) (“[T]here are cases where evidence of prior problems has been deemed relevant to

show notice of a dangerous condition . . . .”); Zamek v. O’Donnell, No. W2006-00522-COA-R3-

CV, 2007 WL 98481, at *5 (Tenn. Ct. App. Jan. 16, 2007) (“[A] lack of any record of

complaints does not conclusively establish a lack of notice . . . .”).




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       But even then, Tennessee cases do not control the admissibility of relevant evidence in

federal court. State law provides the substantive law in diversity actions; thus, because the

foreseeability of the danger is at issue in a premises liability action under Tennessee law, it is at

issue in this case.    However, the Federal Rules of Evidence, not state law, control the

admissibility of evidence relevant to that issue. See Legg v. Chopra, 286 F.3d 286, 289 (6th Cir.

2002) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). And the Federal Rules are

extremely permissive as to what evidence is relevant. “Under Rules 401 and 402, testimony is

admissible into evidence if it has ‘any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.’” United States v. Moore, 917 F.2d 215, 233 (6th Cir. 1990) (quoting Fed.

R. Evid. 401). “As the permissive language in the Rule indicates, the decision to admit relevant,

but potentially prejudicial, evidence is committed to the sound discretion of the trial court.” Id.

       Under Tennessee law, Wal-Mart would have notice of a dangerous condition if the

condition “occurs regularly,” is “reasonably foreseeable,” or “occurs so often that the premises

owner is put on constructive notice of its existence.” See Tinsley v. Wal-Mart Stores, Inc., 155 F.

App'x 196, 198 (6th Cir. 2005) (quoting Blair v. West Town Mall, 130 S.W.3d 761, 766 (Tenn.

2004)). Thus, the frequency of accidents and the foreseeability of a dangerous condition go hand

in hand. Evidence of the frequency or lack of accidents at the transition, and Wal-Mart’s

knowledge of any such accidents, would be “of consequence” to the case, making it “more

probable or less probable” that the elevation change was a foreseeable danger to Wal-Mart. Such

evidence was not unduly prejudicial simply because Wood could not provide evidence that

accidents occurred more often than Wal-Mart claimed. We therefore conclude that the district




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court did not abuse its discretion in admitting evidence as to the lack of prior accidents at the

transition.

                                                  III.

        The judgment of the district court is AFFIRMED.




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