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February 23, 1999


The opinion of the court was delivered by: Lowell A. Reed, Jr., District Judge.


While attempting to rise from his seat in front of a slot machine, plaintiff Rocco J. Bruno was "thrown" from his seat, suffering severe personal injuries. He brought this action against defendant Merv Griffin's Resorts International Casino Hotel, claiming the Casino knew or should have known of the hazardous condition, failed to properly maintain and inspect the chair, failed to warn customers, and allowed the premises to remain in a hazardous condition. This Court has jurisdiction pursuant to 28 U.S.C. § 1332 as the parties are of diverse citizenship and the amount in controversy is in excess of $75,000.00, exclusive of interest and costs.

Defendant has moved summary judgment (Document No. 15) based on its contention that the expected testimony of Jerold S. Weiner, an expert witness for Bruno is inadmissible, or, in the alternative, insufficient to carry the plaintiffs burden of proof. For the reasons stated herein, the motion will be denied.


The event underlying this lawsuit occurred on or about November 12, 1994 while Rocco J. Bruno ("Bruno") was in New Jersey gambling at Merv Griffin's Resorts International Casino Hotel ("Casino"). In his deposition, Bruno described how the accident happened: "I wanted to get out of the seat ... I wanted to give it a quarter of a turn to get out but it wouldn't move so I gave it another try. When I did that, it turned with such a force that it threw me up and off the height ... and I landed on my right hip." (Bruno Dep. at 44). He further explained when he tried to turn the seat a second time, he was holding onto the seat with both hands and pushed off with his feet. (Id. at 44-46). Suffering severe injuries as a result of his fall, Bruno brought this action sounding in negligence and asserting a failure to warn claim and a premises liability claim.

In further support of his contention that the chair malfunctioned, Bruno produced a report by Jerold S. Weiner. In preparing his report, Weiner examined and measured two exemplar chairs and a representative swivel plate assembly provided by the defendant, all nearly identical to the chair from which Bruno was thrown. (Apparently, through no fault of Bruno, Weiner was unable to inspect the actual chair involved in the accident). Weiner also reviewed and considered the deposition transcript of Bruno, dated March 6, 1997, in which Bruno described the circumstances surrounding his fall. In addition, Weiner noted that there are no nationally recognized standards for general purpose chairs of the type at issue here. Finally, Weiner observed the use of similar chairs on the casino floor. (Plaintiffs Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Plt.Mem."), Exh. B).


Defendants have moved pursuant to Federal Rule of Civil Procedure 56 for summary judgment. Under Federal Rule of Civil Procedure 56(c), summary judgment may be granted when, "after considering the record evidence in the light most favorable to the nonmoving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). For a dispute to be "genuine," the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party may not rely merely upon bare assertions, conclusory allegations, or suspicions. Fireman's Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).


In support of its motion for summary judgment, defendant argues that the opinion of Bruno's expert is inadmissible under Federal Rule of Evidence 702. Defendant argues that Bruno has offered no other evidence to support its claim that the chair malfunctioned or was defective such that a hazardous condition existed which was the cause of Bruno's injuries. Defendant argues therefore that summary judgment is appropriate. Bruno argues that the Weiner report is admissible and, in the alternative, that his claim for a failure to warn does not require expert testimony and, therefore, survives summary judgment.

A. Admissibility of Plaintiffs Expert Opinion

Federal Rule of Evidence 702 governs the admissibility of expert testimony in federal court. The Rule has three major requirements: (1) the proffered witness must be a qualified expert; (2) the expert must testify about matters requiring scientific, technical, or specialize knowledge; and (3) the expert's testimony must assist the trier of fact. Lauria v. Nat'l R.R. Passenger Corp., 145 F.3d 593, 597 (3d Cir. 1998) (citing United States v. Velasquez, 64 F.3d 844, 849 (3d Cir. 1995)). The essence of the Rule is to ensure that any expert testimony presented to the jury is not only reliable but also relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ("The Federal Rules of Evidence . . . assigned to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.").

In determining whether expert testimony is sufficiently reliable to be admissible under Rule 702, the Court assumes a "gatekeeping" function to protect against the admission of expert testimony that is unreliable or unhelpful. Id. at 592-95, 113 S.Ct. 2786. "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."*fn1 Id. at 592-93, 113 S.Ct. 2786. Here, in order for the Court to fulfill its duty as the "gatekeeper" of expert testimony, it must hold a hearing outside the presence of the jury prior to trial pursuant to Federal Rule of Evidence 104(a) to further ...

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