Milchak V Home Depot Usa Inc

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

BILLY MILCHAK, §
§
Plaintiff, §
v. § 3:23-CV-00441-ATB
§
HOME DEPOT, U.S.A., INC., §
§
Defendant. §

MEMORANDUM ORDER

The liability phase of this premises-liability trial is ongoing. On June 18, 2025,
Defendant Home Depot, U.S.A., Inc. called Dr. Jeffrey Broker, a biomechanics expert,
to testify that the accident at issue could not have occurred as Plaintiff Billy Milchak
alleges. Before cross-examination, the parties approached the bench, and Defendant
moved to exclude any testimony from Dr. Broker about his work in a different case
involving falling lumber at another of Defendant’s stores (“the Houston Case”).
Before the Court is Defendant’s “Motion to Exclude Evidence of a Different
Lawsuit” (“Motion”) (ECF No. 100) under Federal Rules of Evidence 401 and 403, in
which it argues that any reference to the Houston Case and its details would be
prejudicial, and confusing and misleading, as it could lead the jury to assume that
the incidents, circumstances, and Defendant’s knowledge in both cases are the same
for establishing liability. Mot. at 1.
But Plaintiff retorts that, as his expert report disclosed under Federal Rule of
Civil Procedure 26(a)(2)(B) reflects, Dr. Broker relied on his prior work in the Houston
Case in forming his opinions in this case. See Resp. in Opp’n at 5–6, ECF No. 101;
see also id., Ex. 2, ECF No. 101-2 [hereinafter “Expert Report”]. Plaintiff also retorts
that, during his deposition, Dr. Broker testified that some of his opinions in this case
are “similar” to those in the Houston Case because the physics and geometry in both
incidents are “extremely similar” and involve lumber of “the same size and length.”
Id. at 3; see also id., Ex. 1, ECF No. 101-1 [hereinafter, “Broker Deposition”]. In sum,

Plaintiff contends that the Court should permit him to cross-examine Dr. Broker
about his work in the Houston Case, as Dr. Broker conceded the data, analysis, and
opinions are the same in both cases. Id. at 4.
STANDARD
Federal Rule of Evidence 401 provides that evidence is relevant if (a) it tends
to make a fact more or less probable than it would be without the evidence; and (b)

the fact is of consequence in determining the action. Fed. R. Evid. 401. Even if
evidence is relevant, courts may exclude such evidence under Rule 403 if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence. Fed. R. Evid. 403.
Texas courts have held that evidence of other accidents, near accidents, or
similar events may be relevant and admissible in negligence cases. See, e.g., Nissan

Motor Co. v. Armstrong, 145 S.W.3d 131, 138 (Tex. 2004) (products liability); In re
Sun Coast Res., Inc., 562 S.W.3d 138, 148 (Tex. App.—Houston 2018) (wrongful
death); McEwen v. Wal-Mart Stores, Inc., 975 S.W.2d 25, 29 (Tex. App.—San Antonio
1998) (premises liability). In premises liability cases, such evidence may be relevant
to show the existence of a dangerous condition, whether the dangerous condition
posed an unreasonable risk of harm (that is, whether it was probable and
foreseeable), and whether the defendant had actual or constructive knowledge of the
dangerous condition. See Klorer v. Block, 717 S.W.2d 754, 760 (Tex. App. 1986), writ
refused NRE (Mar. 4, 1987). The relevance of such evidence, however, depends on
the purpose for which the proponent offers it, making it admissible for some purposes

but not others. Armstrong, 145 S.W.3d at 138.
To admit evidence of other accidents, near accidents, or similar events, the
proponent must establish: (1) a predicate of similar or reasonably similar conditions;
(2) a connection between the conditions in some “special way”; or (3) that the incidents
occurred by means of the same instrumentality. Sun Coast Res., 562 S.W.3d at 148
(citing McEwen, 975 S.W.2d at 29). “Reasonably similar” generally means the same

type of occurrence, though not identical circumstances, as a jury can evaluate any
minor differences between the incidents. See Armstrong, 145 S.W.3d at 138; Arreola
v. Union Pac. R.R., 657 S.W.3d 789, 823 (Tex. App.—El Paso 2022); Klorer, 717
S.W.2d at 760. The required degree of similarity for admissibility varies based on the
purpose for which the proponent offers the evidence. Armstrong, 145 S.W.3d at 138.
Yet evidence of other accidents, near accidents, or similar events is
inadmissible if it would cause undue prejudice, confusion or delay. Id. For example,

proponents cannot use proof of what happened in another accident, without more, to
prove what happened in the current one. Id. Nor can they introduce extensive
evidence of other accidents to distract the jury from the facts at hand. Id.
DISCUSSION
Plaintiff argues that Dr. Broker’s testimony about his work in the Houston
Case is relevant because he admits in both his Expert Report and deposition that he
relied on the same data, analysis, and opinions in that case to form his opinions in
this case. Resp. in Opp’n at 5–6.

Plaintiff intends to elicit this testimony for five reasons. First, to show that
the alleged dangerous condition here poses an unreasonable risk of harm. Resp. in
Opp’n at 7. Second, to show Defendant had actual or constructive knowledge of the
alleged dangerous condition. Id. Third, to show that Defendant’s “denial that the
[safety poles] were not there for customer safety” was unreasonable. Id. Fourth, to
cross-examine Dr. Broker about his data, analysis, and opinions from the Houston

Case for the jury to evaluate the basis and weight of his opinions in this case. Id. at
7–8. And fifth, to cross-examine Dr. Broker about payments he has received for prior
testimony favoring Defendant, to establish potential bias. Id. at 8.
In his Expert Report, Dr. Broker states that he relied on information obtained
from the inspection of Home Depot Store 1518 that he conducted on August 28, 2017,
to:
(a) document the lumber storage hardware systems and geometry,
(b) validate/document the manner in which lumber intentionally made
to fall from lumber stacks drops over the stack and support edges, and
(c) weigh the type of lumber (2x4x10s) reportedly involved in Mr.
Milchak’s incident.

Expert Report at 20. He explains that he relied on this information from 2017
because
[i]n previous case involving a claim of 2x4x10s falling from a cantilever
support rack, very similar to [Plaintiff’s] case, testing was performed to
explore and document the manner in which the 2x4s fall. In this
previous case, one yellow support rod was in place. Testing indeed
validated the expected actions of 2x4x10s made to fall from a stack atop
the cantilever support beams.

Id. at 24. Dr. Broker also includes a “sequence of images” from a 2017 reenactment
involving a sixty-foot-tall subject and a lumber stack of 2x4x10 boards with a single
safety pole installed and another pole missing. Id. at 25.
During his deposition, Dr. Broker testified that he conducted the 2017
inspection of Home Depot Store 1518 when he worked on the Houston Case. See
Broker Dep. at 22:2–16; 24:7–8. He explained that the plaintiff in the Houston Case
claimed that he was struck in the arm, and maybe his neck, after interacting with a
lumber stack of 2x4x10 boards with a single safety pole installed and another pole
missing. Id. at 22:17–23:25. Dr. Broker also testified that while the claimed points
of impact differ between the two cases, some of his opinions in the Houston Case were
“very similar” or “very much the same” as in this case because the “physics don’t
change” and “the geometry is extremely similar.” Id. at 25:6–21. He explained that
“the physics and the geometry of the site define the nature and potential for injuries
to customers standing near by the wood,” and that both individuals (Plaintiff and the
plaintiff in the Houston Case) had “the same type of interaction with the lumber.” Id.
at 25:6–26:11.
After reviewing Dr. Broker’s Expert Report and deposition testimony, the
Court concludes that Plaintiff has established a predicate with the required degree of
similarity to admit Dr. Broker’s testimony about his work in the Houston Case for
some purposes, but not others.
First, Plaintiff may elicit testimony from Dr. Broker about his work in the
Houston Case to show whether the alleged dangerous condition here posed an
unreasonable risk of harm (that is, whether the alleged danger was probable and

foreseeable).
Before proceeding with its analysis, the Court pauses to address Plaintiff’s
contention that “[a]t the core of [his] cause of action is that the missing restraint rod
was a hazardous condition that [Defendant] knew or should have known about.”
Resp. in Opp’n at 7.
In Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006), the Texas

Supreme Court explained that “an unreasonably dangerous condition for which a
premises owner may be liable is the condition at the time and place [at which the]
injury occurs, not some antecedent situation that produced the condition.” Brookshire
Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006) (emphasis added). For
example, the Texas Supreme Court explained that, in an earlier case, “water on the
floor of a basketball court could be an unreasonably dangerous condition, but not the
leaky roof that would eventually allow water to drip onto the floor if it rained.” Id. at

408 (citing City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536–37 (Tex. 1996) (per
curiam)). It also explained that, in another case, “a grocery store’s self-service display
of loose grapes in a recessed bowl on a rimmed table standing on a non-skid floor and
surrounded by mats and warning cones was not an unreasonably dangerous
condition; rather, the grape on which the plaintiff slipped was the dangerous
condition.” Id. (citing H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 218–219
(Tex.1999) (per curiam)). The Texas Supreme Court further distinguished these
cases from another in which it held that a store’s self-service display of loose grapes
in an open, slanted bin above a bare, green linoleum floor was itself an unreasonably
dangerous condition because, together “with the absence of any covering on the store’s

tile floor,” the display frequently caused the grapes to become floor hazards. Id.
(citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 297 (Tex. 1983)).
Based on these cases, the Texas Supreme Court in Brookshire rejected the
plaintiff’s argument that a soft-drink dispenser, surrounded by three mats, was the
unreasonably dangerous condition in that case, holding instead that the ice on the
bare floor where she slipped was the dangerous condition. Id. It reasoned that no

evidence suggested that “the soft drink dispenser was set up in such a way that ice
on the floor was a greater danger than one would ordinarily encounter with such
dispensers, or that customers, though prone to spills, were any more prone around
this dispenser.” Id. It also rejected the plaintiff’s argument that the dispenser was
itself unreasonably dangerous because “there should have been more mats and
warning signs.” Id. It reasoned that such arguments were relevant to whether the
defendant failed to exercise ordinary care, as there is almost always more that could

be done to prevent accidents. Id. It emphasized that “[a] condition is not
unreasonably dangerous simply because it is not foolproof,” because “[o]therwise,
similar evidence could be used to show that the entire grocery store was unreasonably
dangerous.” Id.
It follows then, that as in Brookshire, Plaintiff cannot claim here that the
absence of a safety pole was the alleged dangerous condition, rather than the lumber
stack that became unstable. Indeed, the safety poles here are analogous to the mats
in Brookshire: just as the mats were intended to mitigate the risk posed by spilled ice
resulting from foreseeable customer interactions, the safety poles here similarly

mitigate the risk posed by unstable lumber stacks resulting from foreseeable
customer interactions. No evidence presented shows that the lumber stack or its rack
here were more unstable than ordinary stacks or racks without customer interaction,
or that customers were any more likely to destabilize this particular stack or its rack
through foreseeable manipulation.
With this mind, Plaintiff can still elicit testimony about Dr. Broker’s work in

the Houston Case to show that the alleged dangerous condition here—the lumber
stack that became unstable—posed an unreasonable risk of harm by showing that
such danger was probable and foreseeable. As Dr. Broker explained during his
deposition, “the physics and the geometry of the site define the nature and potential
for injuries to customers standing near by the wood,” and that both individuals
(Plaintiff and the plaintiff in the Houston Case) had “the same type of interaction
with the lumber.” Broker Dep. at 25:6–26:11. To be sure, Dr. Broker opined in both

cases that the alleged series of events could not have caused the specific points of
contact where the boards allegedly struck both individuals. But Plaintiff may still
attempt to elicit testimony from Dr. Broker supporting foreseeability of the alleged
dangerous condition here, as he has established the predicate with required degree
of similarity.
Yet Defendant insists that any testimony about Dr. Broker’s work in the
Houston Case would be prejudicial, and also confuse and mislead the jury, because it
“would suggest . . . that the cases are exactly the same with the exact same incident,
circumstances, knowledge of employees, and injury.” Mot. at 1. For these reasons,
Defendant also argues that Plaintiff cannot use such testimony to establish

foreseeability of the alleged dangerous condition. Id. at 5.
But the Court disagrees. Here, it is Defendant’s own expert whose opinions
and deposition testimony established the predicate with required degree of similarity.
In fact, when Plaintiff objected to Dr. Broker testifying during the liability phase on
the grounds that he would offer opinions about Plaintiff’s injuries and their severity
(an objection which the Court overruled), Defendant argued that Dr. Broker would

testify only about where the boards allegedly struck Plaintiff to contest proximate
causation. In other words, Defendant contended that Dr. Broker would address
whether the series of events that Plaintiff alleges could have caused the boards to
strike him in the manner he claims, not to challenge whether Plaintiff in fact
sustained any injuries or the extent of those injuries. So, Defendant cannot now ask
to have it both ways, relying on Dr. Broker’s testimony to contest proximate causation
while simultaneously seeking to bar Plaintiff from cross-examining him about the

bases and sources of those opinions. To the extent Defendant wishes to highlight any
differences to the jury, it may do so during its redirect examination of Dr. Broker.
What is more, Defendant’s argument that evidence of other accidents is
relevant only when such incidents with reasonably similar circumstances occurred at
the specific premises at issue is misplaced. See Mot. at 5. Indeed, the premises
liability claims in the cases that Defendant cites to support its argument all involve
criminal acts of third parties, where a different standard for foreseeability applies.
Compare Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.
1998) (“When the ‘general danger’ is the risk of injury from criminal activity, the
evidence must reveal ‘specific previous crimes on or near the premises’ in order to

establish foreseeability.” (emphasis added)), with Duncan v. First Texas Homes, 464
S.W.3d 8, 18 (Tex. App.—Ft. Worth 2015) (“Foreseeability in this context does not
require that the exact sequence of events that produced an injury be foreseeable.
Instead, only the general damage must be foreseeable. Because this definition
precludes a definitive, objective test, the extent to which a condition is unreasonably
dangerous is ordinarily a fact question.” (cleaned up)).

That said, Plaintiff may not elicit testimony from Dr. Broker about his work
in the Houston Case to show that Defendant had actual or constructive knowledge of
the alleged dangerous condition at the time and location at issue here, or that
Defendant’s “denial that the [safety poles] were not there for customer safety” was
unreasonable. Resp. in Opp’n at 7.
To begin, actual knowledge in premises liability cases “requires knowledge
that the dangerous condition existed at the time of the accident, as opposed to

constructive knowledge which can be established by facts or inferences that a
dangerous condition could develop over time.” City of Corsicana v. Stewart, 249
S.W.3d 412, 414–15 (Tex. 2008) (emphasis added). As the Court explained at length
above, as the alleged dangerous condition here is the lumber stack that became
unstable at the store at issue here, testimony about Dr. Broker’s work in the Houston
Case cannot establish that Defendant had actual or constructive knowledge of the
condition here. Indeed, the 2017 incident took place at another store and is distant
in both time and place. See Wal–Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567
(Tex. 2006) (“The question of constructive notice requires analyzing the combination
of proximity, conspicuity, and longevity.”). Plaintiff also fails to explain how

Defendant’s “denial that the [safety poles] were not there for customer safety” was
unreasonable is relevant to any element of his premises liability claim—much less,
how testimony about Dr. Broker’s work in the Houston Case could help establish it.
Third, Plaintiff may cross-examine Dr. Broker about his data, analysis, and
opinions from the Houston Case so that the jury can evaluate the basis and sources
of his opinions in this case and assign weight to them. Resp. in Opp’n at 7–8. But

Plaintiff may not use his cross-examination to delve into the specifics of the Houston
Case to the extent that it distracts the jury from the facts here or effectively
relitigates the claims from the Houston Case. Likewise, Plaintiff may not use his
cross-examination to elicit specifics about the Houston Case such that it constitutes
improper character evidence under Rule 404, including, for example, eliciting
testimony about whether Defendant was found liable or grossly negligent in the
Houston Case.

That said, Plaintiff may refer to the Houston Case simply as another “case,”
which is the same term that Dr. Broker uses in his Expert Report and deposition. To
the extent that Defendant argues that such references are unduly prejudicial, the
parties’ proposed jury charge already addresses this concern by including an agreed
pattern jury instruction that instructs the jury not to draw any negative inference
from the mere fact that someone filed a lawsuit. See ECF No. 91 at 4.
And fourth, Plaintiff may cross-examine Dr. Broker about payments he has
received when testifying for Defendant in previous cases to show his bias—which as
Defendant notes, he has already begun to do. Resp. in Opp’n at 8; see also In re
Makris, 217 S.W.3d 521, 525 (Tex. App.—San Antonio 2006) (“To establish bias or
prejudice, ‘an expert medical witness may be cross-examined regarding the number
of times he has testified in lawsuits, payments for such testifying and related
questions.”). But Plaintiff cannot use his cross-examination to delve into the details
of these payments to the extent that it distracts the jury, effectively turning it into a
mini trial on every nickel and dime that Dr. Broker has ever received from Defendant
or relitigating past cases in which he has testified.
For these reasons, the Court GRANTS IN PART and DENIES IN PART
Defendant’s “Motion to Exclude Evidence of a Different Lawsuit” (ECF No. 100),
consistent with the rulings and reasoning set forth elsewhere in this Memorandum
Order.
So ORDERED and SIGNED this 28rd day of June 2025.

ANNE T. BERTON
UNITED STATES MAGISTRATE JUDGE

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