Expert Witness Blog
Plaintiff filed action against defendants for personal injuries sustained while vacationing at their resort. Plaintiff’s pool design expert was not allowed based on numerous Daubert factors.
Facts: This case (Pierre v. Hilton Rose Hall Resort & Spa et al – United States District Court – Eastern District of New York – March 28th, 2016) involves a personal injury sustained at defendant’s resort in Jamaica. In order to assist in proving his case, the plaintiff (Pierre) hired Matthew Diamond as a pools & spas expert witness.
Pierre states that he fractured his left foot after sliding down a water slide and landing in water that was three and a half feet deep. He alleges that the pool and/or water slide was defectively designed, which caused his injuries. His expert, Matthew Diamond, filed a report. The court, in turn, stated that it had trouble figuring out exactly what his opinion was. In addition, Mr. Diamond’s report contains cites to various pool and spa standards, but he stated that he did not know if the pool and/or water slide at issue in this case violated any of these standards. Mr. Diamond also stated at his deposition that he only viewed one photograph of the pool in question, but didn’t perform any other research on the case, such as interviewing the plaintiff or visiting the report in which the accident occurred. He also admitted that he did not perform any other testing or analysis as to the force that the plaintiff entered the water off the slide.
Discussion: The court notes that Mr. Diamond’s disclosures do not contain a curriculum vitae or any information on his qualifications. He did testify on his background at his deposition, being self employed at a pool services company where he services, maintains, and renovates pools. The court states that this experience does not qualify Diamond to service as an expert witness on pool and water slide design. Throughout his career in the pool industry, he has never designed pools, designed water slides, or approved any designs for the same. The court opined that he is not qualified to opine on whether a pool’s design has met applicable specifications or whether a lack of the standard of care caused the plaintiff’s injuries.
Moving on to reliability and relevance, Mr. Diamond fails to provide and scientific methodology to back up his theories. He did not provide and citations to pool safety standards, water slide design safety, tests he conducted, methodology he used, or that his theory was subject to any peer-review. In addition, he did not provide any alternative pool or water slide designs, which justifies the exclusion of his expert witness testimony.
The court continues: The only piece of documentation that Mr. Diamond received before providing his report was a picture of a section of the water slide. He did not undertake his own investigation or do any due diligence that it need when providing expert witness testimony. Thus, the expert witness testimony of Mr. Diamond would not assist the trier of fact as his opinions are speculations and lack factual foundation.
Held: The motion to exclude the testimony of Matthew Diamond was granted.