Expert Witness Blog
Plaintiff filed lawsuit against defendant after she slipped and fell on a display platform. The plaintiff hired an Architecture Expert Witness to provide testimony. The defendant filed a motion to exclude this expert from testifying. The magistrate judge recommended that the motion should be granted in part and denied in part.
Facts: This case (Bennett v. Target Corporation – United States District Court – Eastern District of New York – November 5th, 2018) involves a claim of personal injuries. The plaintiff seeks damages for injuries she sustained when she slipped and fell on a “base deck” (a type of display platform) while shopping at the defendant’s store. The plaintiff alleges that the defendant’s negligence caused the incident and that, as a result, she sustained personal injuries. The plaintiff hired Architecture Expert Witness Jerry Birnbach to provide testimony on her behalf. The defendant has filed a motion to exclude this expert witness testimony.
Discussion: The defendant argues that Birnbach does not have adequate qualifications to opine on biomechanical, anatomical, and medical issues. Particularly, the defendant challenges Birnbach’s conclusions that the incident at issue caused the plaintiff’s broken metatarsal, that in the absence of empty space on the base deck, the plaintiff’s fall would have been broken, and that if Bennett’s fall would have been broken, it would have prevented or minimized her injuries.
The court opines that Birnbach is qualified to serve as a retail design and safety expert. In addition, Birnbach’s opinions concerning the cause of the plaintiff’s fall are also within his area of expertise. In addition, the court opines that Birnbach is qualified to testify regarding what design-related decisions could have prevented or minimized the plaintiff’s injuries.
The defendant also disputes the reliability of numerous Birnbach’s claims. First, that Birnbach’s claim that the configuration of the display at the time of the subject incident violated the defendants Plan-O-Grams. Second, Birnbach’s claims that usable space was not sufficient for the merchandise. Last, Birnbach’s claim that the display violated industry standards. The court opines that Birnbach properly relied on the documents that he was provided. In addition, the court notes that any challenges to such measurements go to the weight of the testimony and should be raised at cross-examination. Also, the court notes that any alleged deficiencies related to Birnbach’s methodology for ascertaining industry standards should be raised on cross-examination.
In addition, the defendant argues that Birnbach’s opinions should be precluded because his report contains improper legal conclusions, lay opinions, and facts that contradict evidence that will not assist the trier of fact. The court opines that Birnbach’s report contains numerous conclusions of law, which are not admissible.
Conclusion: The motion to exclude the expert witness testimony of Jerry Birnbach should be granted in part and denied in part.