Plaintiff filed a lawsuit against the defendant related to a slip and fall accident. The plaintiff hired a Forensic Engineering Expert Witness to provide testimony. Defendant filed a motion to exclude this expert from testifying. The court denied the motion to exclude.
Facts: This case (SLAPPY-SUTTON et al v. SPEEDWAY LLC – United States District Court – Eastern District of Pennsylvania – July 31st, 2019) involves a slip and fall claim. The plaintiff alleges that he tripped on an unmarked curb in front of the entrance of the defendant’s convenience store, which caused him to rupture his left and right quadriceps. The plaintiff has hired Forensic Engineering Expert Witness Keith A. Bergman, P.E. to provide expert witness testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: Bergman opines that the defendant created a hazardous and unsafe condition for customers who are exiting the store when it installed a one-foot wide concrete strip in front of the sidewalk that was the same color as the curb and the sidewalk. The defendant argues that the Bergman’s testimony should be excluded because he relied solely on his “ipse dixit” and that his opinions do not meet the admissibility requirements under Rule 702.
The court first looks into Bergman’s qualifications to provide expert witness testimony in this case. The court notes that Bergman has specialized knowledge about commercial development, which includes curb layout, design, and construction. The court also states that Bergman is a civil engineer and has decades of experience in land and development projects. The court opines that, based on his professional experience, Bergman is qualified to offer expert witness testimony in this case.
Also, the defendant argues that Bergman’s testimony should be excluded because he only relies on his ipse dixit to form his opinion. Specifically, the defendant argues that Bergman did not do any testing, did not perform any studies, did not take any notes as to how people safely stepped onto or off of the curb, did not determine the sufficiency of the lighting, and did not speak directly to the plaintiff.
The court opines that although Bergman did not conduct any studies or perform any tests, these methods are not required for reliability purposes. The court opines that Bergman relied on inspections from the scene of the accident, measurements and photographs taken at the scene, surveillance footage of the accident, as well as other material. In addition, Bergman used his own expertise as a civil engineer with experience in commercial land development.
Last, the court opines that Bergman’s testimony is relevant and will help the finder of fact in determining whether the defendant was negligent.
Conclusion: The motion to exclude the expert witness testimony of Keith A. Bergman, P.E. is denied.