Plaintiff filed suit against the defendant related to a slip and fall at a buffet. The plaintiff hired a safety engineering expert witness to provide testimony. The defendant filed a motion to exclude this expert from testifying. The court granted the motion in part and denied it in part.
Facts: This case (SPITKO et al v. HARRAH’S ATLANTIC CITY PROPCO, LLC – United States District Court – District of New Jersey – March 28th, 2019) involves a slip and fall in a hotel. The plaintiffs allege that the defendant should be held negligent after the husband of one of the wife plaintiff slipped and fell on a greasy substance and landed on his rear end. The husband alleges that he suffered multiple injuries, specifically to his knees and back. He also underwent knee replacement, and receives lower back injections due to the fall. The plaintiff has hired safety engineering expert witness Charles Penza to provide testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: The defendant argues that Mr. Penza is not qualified to offer expert opinion testimony in this case because he has never been involved in or worked in the food services industry. In addition, the defendant argues that Mr. Penza has never provided safety or advice to a self-service buffet or visited other self-service buffets in Atlantic City. The court opines that although Mr. Penza has never worked specifically in the food service industry, he does have over 50 years of experience as a safety engineer.
In addition, he has designed and supervised in the construction of offices and other types of buildings and has prepared expert reports regarding building failures, accident investigations, and safety code compliance. Therefore, the court opines that Mr. Penza’s safety engineering experience qualifies him as an expert in this case.
The defendant also argues that Mr. Penza’s testimony and opinions are not reliable as they are based solely on his own speculation for which he has not provided any supportive documentation. However, the court notes that Mr. Penza cited to ASTM standards which support his opinion that it is good practice in the restaurant industry to have floor mats in locations that are prone to spills. Therefore, the court opines that it will consider Mr. Penza’s opinions regarding floor mats admissible.
The court, however, notes that although Mr. Penza cited ASTM standards to support his opinion on floor mats, he did not provide any scientific back up to support his opinion that the defendant failed to provide enough inspection and supervision of the Buffet floor. In addition, Mr. Penza did not offer any scientific, technical, or specialized knowledge that a fifteen minute sweep rules is an industry standard.
Conclusion: The motion to exclude the expert witness testimony of Charles Penza is granted in part and denied in part.