Plaintiff filed suit against defendants related to an accident at a ski resort. Plaintiff hired a Skiing & Snowboarding Expert Witness to provide testimony. 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 (LIPTON et al v. MOUNTAIN CREEK RESORT INC. et al – United States District Court – District of New Jersey – September 23rd, 2019) involves an injury at a ski resort. The plaintiff claims that he was skiing at the defendant’s resort and sustained severe injuries as a result of a collision. The plaintiff states that he was skiing and came upon eight snowmaking tower guns. The plaintiff alleges that he struck an unprotected metal pipe which was sticking out of the ground.. As a result of the accident, the plaintiff sustained severe brain and facial injuries. The plaintiffs filed suit against the defendant, claiming that they failed to properly guard or warn against certain man-made hazards on the trail and breached its duties under the New Jersey Ski Statute. The plaintiffs hired Richard Penniman (Skiing & Snowboarding Expert Witness) to provide testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: The court notes that Mr. Penniman has over thirty years of experience working in the ski industry. In addition, the court notes that Mr. Penniman has been a ski consultant who work includes trail safety and design, mountain operations management, and employee training. The defendant alleges that Mr. Penniman’s expert witness testimony should be excluded because he does not address the ski statute and therefore should not be allowed to opine on liability.
The court notes that Mr. Penniman’s report does not discuss the ski statute or its standards. The court also notes that Mr. Penniman testified that while he had not reviewed the ski statute before drafting his report, he did subsequently review the statute, and his opinion was not changed. The court opines that Mr. Penniman will not be allowed to testify as to ski statute issues, but his report does address other issues that are relevant to the case.
Mr. Penniman has opined that the defendant knew or should have known about safety standards and should have ensured that these standards were followed. The defendant alleges that Mr. Penniman’s opinion is non relevant and not reliable because he cannot give testimony on the relevant ski statute and the standard of care. In addition, the defendant states that Mr. Penniman was not aware of the mandatory helmet law for minor skiers under the New Jersey Ski statute.
The plaintiffs state that Mr. Penniman’s opinions are relevant because he reviewed the evidence in the case to identify hazards that were on the defendant’s trail and determined that the defendant’s warnings were not effective.
The court opines that Mr. Penniman’s opinions should not be wholly excluded because he did not review the ski statute and mention it in his report. The court further opines that Mr. Penniman will be allowed to offer opinions, including those on industry standards of care as well as safety standards. However, the court opines that Mr. Penniman will not be allowed to testify whether or not that facts of the case conform to the standards of care under the ski statute. The court opines that Mr. Penniman’s testimony will not be excluded, but it will be limited.
Conclusion: The motion to exclude the expert witness testimony of Richard Penniman is granted in part and denied in part.