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Slappy-Sutton v. Speedway LLC

United States District Court, E.D. Pennsylvania

July 30, 2019

ROD SLAPPY-SUTTON, and JEAN SUTTON, h/w, Plaintiffs,
v.
SPEEDWAY LLC, Defendant.

          MEMORANDUM

         I. INTRODUCTION

         This action arises out of a slip and fall that occurred as plaintiff Rod Slappy-Sutton (“plaintiff”)[1] was exiting a Speedway convenience store on January 19, 2016, in Glenside, Pennsylvania. Plaintiff alleges in the Complaint that he tripped on an unmarked curb in front of the entrance of the Speedway, causing him to fall and rupture his left and right quadriceps. Presently before the Court is Defendant's, Speedway LLC, Motion to Preclude the Testimony of Keith A. Bergman, P.E. For the reasons that follow, defendant's Motion to Preclude is denied.

         II. BACKGROUND[2]

         On January 19, 2016, plaintiff, his wife, and their 15-year-old son stopped to get gas for their vehicle at the Speedway convenience store in Glenside. Def.'s SOF ¶ 4; Pls.' SOF ¶ 4. After re-fueling his vehicle, plaintiff and his son walked towards the convenience store to purchase snacks. Def.'s SOF ¶ 10; Pls.' SOF ¶ 10. As he exited the store, plaintiff misjudged the step down from the curb to the parking lot, causing him to fall. Def.'s SOF, Ex. 2, 136:11- 13, 141:1.

         Speedway purchased the convenience store from Hess Corporation on October 1, 2014. Def.'s SOF ¶ 5 n.3. Plaintiff had visited the store on one or two prior occasions before the incident on January 19, 2016.[3] Def.'s SOF ¶ 5; Pls.' SOF ¶ 5. In October 2015, Speedway upgraded the tank monitoring system for the underground fuel storage tanks. Def.'s SOF ¶ 27; Pls.' SOF ¶ 27. In order to run electronic telecommunication lines from the underground storage tanks to the store, a one-foot wide trench was excavated from the tanks to the store, a portion of which was in front of the curb at the entrance to the store. Def.'s SOF ¶ 28; Pls.' SOF ¶ 28. Prior to that upgrade, the pavement in front of the curb was paved with asphalt. Id. Following the upgrade, the store paved over the one-foot wide strip with concrete. Id. That upgrade left the curb and the one-foot strip extending beyond the curb paved with concrete. Plaintiff claims that Speedway knew or should have known that the failure to cover the one-foot strip of cement with black macadam or to paint the edge of the curb white or yellow to distinguish the curb from the cement strip below created a hazardous condition. Pls.' SOF ¶ 41.

         Plaintiff filed this lawsuit in the Court of Common Pleas of Montgomery County on August 1, 2016. Defendant removed the action to this Court on August 31, 2016. The Complaint contains two counts - negligence (Count I) and loss of consortium (Count II). In October 2017 defendant filed a Motion for Summary Judgment and a Motion to Preclude the Testimony of Keith A. Bergman, P.E. (Document Nos. 11 & 12). This Court granted Defendant's Motion for Summary Judgment and denied Defendant's Motion to Preclude Testimony as moot. On appeal to the Third Circuit the ruling was reversed and the case was remanded for further proceedings. See Slappy-Sutton v. Speedway LLC, 764 Fed.Appx. 271, 273 (3d Cir. 2019). Based on that reversal, this Court must now consider Defendant's Motion to Preclude the Testimony of Keith A. Bergman, P.E. The Motion is fully briefed and ripe for decision.

         III. LEGAL STANDARD

         Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

         That rule requires the Court to act as a gatekeeper and is applicable to scientific testimony and testimony based on “technical” and “other specialized” knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). A court must determine whether an expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152.

         Rule 702 has a “liberal policy of admissibility.” Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (quoting Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997)). As such, the “rejection of expert testimony is the exception and not the rule.” Dorman Prods. v. PACCAR, Inc., 201 F.Supp.3d 663, 686 (E.D. Pa 2016) (quoting Fed.R.Evid. 702 Advisory Committee Note).

         Courts must address a “trilogy of restrictions” before permitting the admission of expert testimony: qualification, reliability and fit. Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003); Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000). The party offering the expert must establish each requirement by a preponderance of the evidence. In re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999).

         IV. DISCUSSION

         To support their claims of negligence and loss of consortium, plaintiff offers a report by Keith A. Bergman, P.E. which opines, inter alia, that Speedway, LLC, created an unsafe and hazardous condition for customers exiting the store when it created a one-foot wide concrete strip in front of the sidewalk that was the same color as the curb and sidewalk. Def. Mot. Preclude, Ex. 13. Defendant seeks to preclude Bergman's testimony based on the report, arguing that Bergman relies solely on his ipse dixit and that his ...


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