Expert Witness Profiler

Tag: Building Code

  • Safety Expert Witness’ Testimony on Deficient Inspections Limited

    Safety Expert Witness’ Testimony on Deficient Inspections Limited

    Plaintiff Bailey Aldrich slipped and fell from a single step landing at a United States post office, injuring her foot. Aldrich testified that as a result of her fall, all of her weight landed on her right foot, and she broke three bones in the top of her right foot close to her ankle. She then landed on her bottom and was in immense pain. Aldrich believed that the condition that caused her fall was created by trucks running into the back of the landing.

    Plaintiff’s liability expert, William Marletta, testified that the inspections performed by the United States Postal Service were deficient and that “anybody inspecting this should have been able to pick up that there were problems.” He added that there are issues that are not found or cited in inspections that could still be considered dangerous or defective conditions.

    Defendant challenged Marletta’s opinions on several bases: that they (1) form inadmissible legal conclusions; (2) are not based on reliable principles and methods; and (3) are based on facts not in the record that are speculative and do not assist the trier of fact. 

    Safety Expert Witness

    William Marletta is an internationally recognized safety professional with many professional honors including an “Award of Merit” from The American Society of Testing and Materials (ASTM) for his contributions to the development of standards, and was a world recipient of the American Society of Safety Engineers (ASSE) Safety Professional of The Year.

    Discover more cases with William Marletta as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussin by the Court

    Marletta’s Opinions Form Inadmissible Legal Conclusions In Part

    In one of his opinions, Marletta claimed that Defendant was “negligent in failing to properly maintain, repair, and/or replace the defective condition, or provide adequate warnings in accordance with The New York City Building Code, as well as good and accepted safe practice.”

    The Court held that the word “negligent” impermissibly embraced a legal conclusion. However, the Court accepted Plaintiff’s suggested revision of the opinion to: “the owner(s) of the property and its agent (“Defendants”) failed to properly maintain, repair, and/or replace the defective condition, or provide adequate warnings.”

    Marletta concluded that the loading dock “became a means of egress when [Plaintiff] was instructed to enter the accident area.” Marletta opined that there were “dangerous slopes that forward pitched the curb as a ramp.” Whether the loading dock was a means of egress and whether it was a ramp are questions of law to be decided by the Court because these are both legal terms used in the Building Code. Accordingly, the Court excluded these opinions.

    Marletta interpreted various codes and statutes, including iterations of the Building Code and American Disabilities Act. Defendant argued that the applicability and interpretation of various codes and statutes are matters of law for the Court to decide.

    The Court held that Marletta’s opinions provide information on standards and deviations from them. He cites code and statute violations as part of his overall analysis regarding Defendant’s alleged failure to maintain the step. Defendant has not identified any viable basis to exclude these opinions.

    Whether the opinions are applicable to the instant matter, however, depends on if the Court determines that the loading dock is a means of egress and the landing is a ramp, which the Court lacks sufficient information to do at this juncture.

    Marletta’s Opinions Are Based on Sufficient Facts

    Marletta relied on the following materials when forming his expert opinions: (1) photographs of the accident area; (2) inspection and maintenance problem reports; (3) Plaintiff’s deposition testimony; (4) depositions from Post Office employees; (5) various other litigation materials provided to him by Plaintiff’s counsel; and (6) an onsite inspection on November 15, 2022. 

    Lack of Visual Cues

    Marletta concluded that a lack of visual cues was the proximate cause of Plaintiff’s accident. Defendant claimed that Marletta’s opinion should not be persuasive, because, for example, Plaintiff was not looking down at the time of the accident. The Court refrained from excluding this opinion because Defendant had not pointed to any reason why the materials Marletta relied upon were insufficient. 

    When Marletta concluded that the “excessive height of the single-step riser was a proximate cause” of Plaintiff’s injury, the Court held that Defendant’s criticisms go to the weight, not the admissibility, of the proffered testimony.

    Untested Conjecture

    Defendant took issue with Marletta’s statement that the landing was a “smooth, hard surface” and that when a “smooth, hard surface is combined with water or a foreign substance left laying on its surface, conditions are ripe for a slip and fall accident.”  Defendant argued that Marletta’s testimony that “it would not surprise [him]” if there were water or a foreign substance on the landing is “untested conjecture.” Marletta cannot testify as to unsupported beliefs about whether there was water or a foreign surface on the landing. But the Court, at this juncture, will not exclude the opinion that when a smooth, hard surface is combined with water or a foreign substance, conditions are ripe for an accident. 

    Location of the Accident

    When Defendant pressed for exclusion because Marletta was unable to identify with certainty the location of the accident, the Court held that Marletta identified generally where Plaintiff’s accident occurred; it is not entirely uncertain where Plaintiff fell.  The Court, as finder of fact at trial, will determine how much weight to assign to the fact that Marletta determined the average roughness of the landing.

    Similarly, Marletta noted that the “loading dock and curb had worn metal, excessive slopes, garbage and filth, an excessive riser, and more.” Although Defendant argued that there is no evidence that these conditions existed or contributed to the accident, the Court will determine what weight, if any, to assign this opinion at trial.

    Marletta’s statements are not connected to the facts of the case

    Marletta opined that conditions “contrary to our expectation” can contribute to a slip and fall. He concluded that the “normal cone of vision of the pedestrian” makes hazards on walking surfaces difficult to distinguish. Marletta also concluded that surface changes are “difficult to distinguish due to the to view perspective of the pedestrian.” The Court held that  Defendant’s conclusory arguments that Marletta’s statements are not connected to the facts of the case fail to establish that these opinions were not based upon reliable data and methodology or will not assist the Court as the finder of fact.

    The Court also saw no reason to exclude Marletta’s opinion that that “these departures from codes, rules, regulations and good and accepted safe practice were the proximate cause(s) of the accident.”

    Defendant’s Other Arguments to Exclude Marletta’s Expert Testimony Are Unavailing

    Marletta opined that “there was a failure to adequately train employees in safe practices that prohibited pedestrians from entering into dangerous areas.”  Defendant’s only argument was that this testimony did not raise any material issue of fact, which the Court held was not a basis to exclude the testimony.

    Defendant also quibbles with Marletta’s statement that additional warning signs should have been posted in the area of the accident. Defendant argued that the landing was painted in yellow, therefore providing a warning and that Plaintiff was aware of the step. The Court, once again, held that Defendant did not point to any basis to exclude this opinion. 

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude William Marletta’s testimony.

    Key Takeaways: 

    • Any gaps or inconsistencies in Marletta’s report go to the weight of the evidence, not its admissibility, as Marletta’s report is based on sufficient facts and data.
    • When an expert offers an opinion relevant to applying a legal standard, the expert’s role is limited to describing sound professional standards and identifying departures from them.

    Case Details:

    Case Caption: Aldrich V. The United States Of America Et Al
    Docket Number: 1:22cv5297
    Court: United States District Court, New York Southern
    Order Date: September 26, 2024
  • Construction Expert Witness’ Deposition Testimony deemed “Incomplete and Inconclusive”

    Construction Expert Witness’ Deposition Testimony deemed “Incomplete and Inconclusive”

    This action stems from a trip and fall incident that occurred on July 19, 2019, while Plaintiff, Carolyn Simmons was walking and tripped along a dangerous and defective sidewalk located in front of Rite Aid in Ridgeland, South Carolina. The Defendant, Rite Aid of South Carolina, Inc., Walgreens, and Sitaras and Tzioros Properties, Inc., (hereafter referred to as “Defendant”), is a national drug store chain located in Ridgeland, State of South Carolina.

    Defendant Sitaras and Tzioros Properties, Inc.’s (hereafter “Defendant”) filed a motion to exclude the testimony of Plaintiff’s expert Gerald Neal.

    Construction Expert Witness

    Gerald Neal is licensed general contractor with eighteen years of experience in project management and facilities engineering. Moreover, he has extensive experience constructing and renovating homes, offices, apartments, restaurants, and churches.

    Want to know more about the challenges Gerald Neal has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    While the case was still pending in state court, Plaintiff identified Neal as an expert witness and indicated, in response to Defendants’ interrogatories, that Neal was “compiling” documents and would forward these upon receipt.

    After the case was removed to United States District Court, the Plaintiff’s expert report was due by March 26, 2024. According to Defendant’s motion, no expert report meeting Rule 26(a)(2)(B) requirements had been produced by Plaintiff under the Court’s scheduling order.

    Also, Neal was deposed while the case was still pending in state court. Besides, he stated in his deposition that he lacked certain important information that was necessary to finalize his opinions. Specifically, Neal testified that he needed the date of the building’s certificate of occupancy because that would determine the specific building code that was applicable to this incident.

    Subsequently, Defendant filed its motion to exclude more than two months after the deadline in the scheduling order for the production of expert reports. Defendant’s assertions that it has never been provided an expert report from Neal and that his deposition testimony was “incomplete and inconclusive” have gone unchallenged by Plaintiff since no response to the motion to exclude was filed.

    Ultimately, the Court found that no good cause or substantial justification has been shown for the failure to timely produce an expert report and the failure to comply has not been shown to be harmless.

    Held

    To conclude, the Court granted Defendant’s motion to exclude the testimony of Gerald Neal as an expert witness at trial.

    Key Takeaway:

    To conclude, the Court found that no good cause or substantial justification had been shown for the failure to timely produce an expert report. Furthermore, the failure to comply has not been shown to be harmless.

    In short, when considering a motion to exclude an expert witness for failure to produce a required expert report, the Court must address two applicable rules. First, Fed. R. Civ. P. 16(b)(4) provides that a scheduling order may be modified only “for good cause and with the judge’s consent.” Second, even where a timely expert report has not been produced, an expert will not be excluded so long as the failure to timely produce the report is “substantially justified or is harmless,” as per Fed. R. Civ. P. 37(c)(1).

    Case Details:

    Case Caption: Simmons V. Rite Aid Of South Carolina, Inc. Et Al
    Docket Number: 9:23cv2290
    Court: United States District Court, South Carolina
    Order Date: July 03, 2024
  • Forensic Engineering Expert Witness held to use a Reliable Methodology for Window Evaluation

    Forensic Engineering Expert Witness held to use a Reliable Methodology for Window Evaluation

    Plaintiffs, Aimee and Erich Wolf filed a suit against Defendant, State Farm & Casualty Company raising claims such as breach of contract and bad faith from damage inflicted on the Wolf’s home during Hurricane Laura, which made landfall in Southwest Louisiana on August 27, 2020. Throughout the relevant period, the home was insured by State Farm. Allegations made by the Plaintiffs asserted that State Farm did not adequately compensate them for the covered losses in a timely manner.

    The Plaintiffs enlisted Matthew Phelps as a forensic engineering expert to evaluate the damages sustained by their home, specifically focusing on the windows. Following the signing of a contract around April 21, 2021, Phelps and his team conducted inspections of the Wolf residence, which happened over eight months after Hurricane Laura affected Lake Charles. Phelps and APEC visited the home approximately ten to twelve times before Phelps completed his report on April 11, 2022.

    State Farm filed a motion to exclude or limit the testimony of Matthew Phelps. State Farm contended that Phelps did not reference the appropriate building code for the Plaintiffs’ home during his assessment and that his testing of the windows deviated from industry standards, citing flaws stemming from inaccurate assumptions regarding the windows’ age. State Farm argued that Phelps’s testimony failed to meet the standards outlined in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. In response, the Plaintiffs opposed the motion, highlighting that both Phelps and State Farm’s engineer utilized different building codes than those in effect when the Plaintiffs’ home was constructed. They also asserted that any challenges to Phelps’s methodology in evaluating the windows should affect the weight of his testimony rather than its admissibility.

    Forensic Engineering Expert Witness

    Matthew B. Phelps is the CEO and Chief Engineer at APEC Engineering & Laboratory, LLC, and boasts extensive qualifications in forensic investigations, structural design, and construction inspections. Phelps possesses more than 15 years of expertise in high wind design and has amassed extensive experience in testing and evaluating various building materials and assemblies. With a Ph.D. in Systems Engineering and Management from Texas Tech University, Edward E. Whitacre, Jr. College of Engineering. His earlier academic achievements include a Master of Science in Engineering from Texas Tech University, a Master of Science in Biology from Eastern New Mexico University, and a Bachelor of Science in Agricultural Business from West Texas A&M University.

    Discussion by the Court

    The trial court serves as a gatekeeper for expert testimony, determining its admissibility based on relevance and reliability, as outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc. and Federal Rule of Evidence 702. The proponent of the expert testimony must prove its admissibility by a preponderance of the evidence. While the Court has broad discretion in this determination, rejection of expert testimony is the exception rather than the rule, with vigorous cross-examination and presentation of contrary evidence being traditional means of challenging admissible evidence.

    Phelps was informed the Wolf’s home was built around 1985 and utilized the 1985 Uniform Building Code (UBC) for his assessment, neglecting to verify the building code applicable in Calcasieu Parish at that time. State Farm’s expert, Matthew Innocenzi, relied on the 1979 Standard Building Code (SBC), which State Farm argued was more likely in effect. However, it was shown that the 1982 UBC was adopted by Calcasieu Parish and was in effect as of 1985. Consequently, neither expert used the correct building code in their assessment. State Farm argued that the discrepancy in building codes was insignificant, however, since the 1979 SBC and 1982 UBC were both based on three-second gusts of 150 mph, faster than the 110 mph figure used by the 1985 UBC.

    The Court typically allows the fact-finder to assess the accuracy of an expert’s testimony based on the facts they relied on. However, expert testimony unsupported by factual evidence is not admissible. Currently, the Court only has the State Farm expert’s interpretation of building code wind speed figures and their impact on Phelps’ assessment. Phelps testified that his assessment considered the building code used by the home builders and the aging of materials. State Farm failed to demonstrate any flaw in Phelps’ approach or that the use of the wrong building code would warrant exclusion.

    State Farm accused Phelps of employing a flawed methodology in window testing. They argued that Phelps’ assessment of window replacement was based on the assumption that 93 percent of the windows had less than 50 percent of argon gas remaining, which they contended was an unreliable indicator. State Farm emphasized that window age is an important factor in predicting argon concentration and highlighted Phelps’ error in estimating the windows to be around 16 years old when they were actually 35 years old. In response, Phelps demonstrated that even assuming a 35-year window age and standard argon concentration loss over time, 93 percent of the windows at the Plaintiffs’ residence still failed the argon testing. Furthermore, Phelps pointed out that State Farm’s own engineer, who recommended repair or replacement of several windows due to fogging, did not consider the role of any other storms, similar to Phelps’ approach. Consequently, State Farm’s objections to Phelps’ methodology lacked merit, as they failed to provide a valid basis for exclusion. Any discrepancies in Phelps’ sources or oversights in his considerations could instead be addressed through cross-examination.

    Held

    The Court denied the Defendant’s Motion in Limine to exclude or limit testimony of Plaintiffs’ expert Matthew Phelps.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    The expert testimony in the case involving the Wolf residence and State Farm’s insurance coverage reveal several critical points. First, both parties’ experts, Phelps and Innocenzi, used different building codes in their assessments, neither of which aligned with the code in effect when the home was constructed. Despite this discrepancy, the Court found State Farm’s argument that the variance in building codes was inconsequential due to their shared higher wind speed requirements unconvincing. Second, the Court emphasized the importance of expert testimony being supported by factual evidence, indicating that unsupported assertions are inadmissible. In this case, State Farm failed to discredit Phelps’s methodology or demonstrate any flaws in his approach. Lastly, State Farm’s objections to Phelps’s window testing methodology were refuted by Phelps’s demonstration that even after accounting for corrected window age assumptions, the majority of windows still failed argon testing. Additionally, State Farm’s own engineer’s recommendations mirrored Phelps’s findings, further weakening State Farm’s argument. Ultimately, the Court found State Farm’s objections lacking merit, underscoring the importance of rigorous cross-examination to address any discrepancies or oversights in expert testimony.

    Case Details

    Case Caption Wolf v. State Farm Fire
    Docket Number 2:22cv2225
    Court United States District Court, Louisiana Western
    Citation 2024 U.S. Dist. LEXIS 27800
    Order Date February 16, 2024