United States District Court, E.D. Pennsylvania
action arises out of a slip and fall that occurred as
plaintiff Rod Slappy-Sutton
(“plaintiff”) 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.
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.
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. 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.
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
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.
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.
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).
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
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 ...