Plaintiff filed sued against defendant related to an elevator accident. An Elevator & Escalator Expert Witness was hired to provide testimony. Third party 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 (Kim v. Crocs, Inc. – United States District Court – District of Hawaii – February 25th, 2019) involves an accident where the plaintiff’s shoe became entrapped in an escalator. Otis, a third party defendant in this case seeks an order excluding Elevator & Escalator Expert Witness John W. Koshak from testifying. Mr. Koshak opines that the lack of maintenance and inspections and the resulting condition of the escalator was more likely than not the cause of the plaintiff’s foot being entrapped in the escalator.
Discussion: Otis argues that Mr. Koshak’s opinions are not relevant because they are based on unreliable and flawed data and are based on the assumption that the noncompliance and conditions he observed during his 2018 site inspection would have existed when the incident occurred. The plaintiffs counter that Mr. Koshak’s opinions are not solely based on his site inspection. The court finds that Mr. Koshak fails to show that the escalator’s condition in 2018 is reflective of its condition at the time of the incident. Thus, the court finds that Mr. Koshak did not have the requisite facts to enable him to express a reasonable accurate conclusion regarding the specific condition of the escalator at the time of the incident.
In addition, Otis contends that Mr. Koshak’s opinion that the damaged skirt panel was the cause of the plaintiff’s entrapment is not relevant because he has not connected his 2018 observations to the condition of the subject escalator at the time of the incident. The court opines that Mr. Koshak has not shown a logical connection between the condition of the escalator in 2014 and 2018 and has not established that the subject escalator did not undergo changes between the incident and his site inspection.
Last, Otis argue’s that Mr. Koshak’s causation opinions should be excluded because they rely on unreliable and cherry-picked data. There are two causation opinions at issue: 1) Otis’s failure to properly maintain failed to conform to the reasonable standard of case in the industry; and 2) The lack of maintenance and inspections was more likely than not a cause of the plaintiff’s foot becoming entrapped in the escalator. The court opines that it will allow the first causation opinion, but exclude the second one.
Conclusion: The motion to exclude the expert witness testimony of John W. Koshak is granted in part and denied in part.