IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY JEFF MARKS, : : Plaintiff, : : v. : : DEWEY BEACH ENTERPRISES, : INC., d/b/a THE RUSTY RUDDER, : a Delaware corporation, : : Defendant. : Submitted: February 17, 2006 Decided: ORDER Upon Defendant s Daubert Motion to Preclude Testimony of Gregory A. Harrison, P.E. Denied. Wayne N. Elliott, Esquire and D. Benjamin Snyder, Esquire of Prickett Jones & Elliott, P.A., Dover, Delaware; attorneys for the Plaintiff. Neil R. Lapinski, Esquire of Swartz Campbell, LLC, Wilmington, Delaware; attorneys for the Defendant. WITHAM, R.J.

2 Before this Court, in this personal injury case, is the defendant s motion to preclude testimony of plaintiff s witness, Dr. Gregory A. Harrison, P.E. The question presented is whether Dr. Harrison as an expert witness is qualified under the Delaware Rules of Evidence to render opinion regarding lighting and decking conditions at the scene of the incident as well as the method and mechanism of the trip and fall. Standard of Review The trial court s five-step test to determine the admissibility of scientific or technical expert testimony is as follows: (I) the witness is qualified as an expert by knowledge, skill experience, training or education...; (ii) the evidence is relevant and reliable; (iii) the expert s opinion is based upon information reasonably relied upon by experts in the particular field...; (iv) the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue...; and (v) the expert testimony will not create unfair prejudice or confuse or mislead the jury. 1 Discussion The defendant takes issue with the following conclusions of Dr. Harrison: (1) lighting levels on pier were primary cause of fall as they do not comply with BOCA/IBC or the NFPA LSC life safety code; (2) plaintiff s fall was initiated by a trip and fall mechanism; and (3) at the time of the fall, the pier decking was in a state of chronic disrepair and had loose and uneven boards that created an unsafe condition. Generally speaking, the plaintiff argues that Dr. Harrison should be qualified as 1 Eskin v. Carden, 842 A.2d 1222, 1227 (Del. 2004) quoting Cunningham v. McDonald, 689 A.2d 1190, 1193 (Del. 1997) (internal citations omitted). 2

3 an expert because he is a professional engineer with two masters degrees in engineering, a doctorate degree in safety engineering and more than thirty years of experience. Additionally, insurance companies and attorneys have hired Dr. Harrison to investigate well over 1,000 falls for all reasons. 2 He also has been involved in issues involving lighting for both defendants and plaintiffs. As to the first conclusion, the defendant argues that because Dr. Harrison did not utilize a light meter in his inspection of the premises, his conclusion is not based on information reasonably relied upon by experts in a particular field and, thus, should be barred. The defendant states that Dr. Harrison had access to a light meter that could calculate one foot candle of illumination with certainty, but he declined to use it. Although Dr. Harrison states it would have been too dark to read the meter without using additional light, which would disturb the measurement, the defendant states there are instruments on the market that could have resolved this technical shortcoming. The plaintiff argues Dr. Harrison is qualified to opine on lighting conclusions since during his deposition Dr. Harrison explained that the reason he did not use a light meter was because it was so dark that he was unable to see to read the meter. Additionally, the darkness on the dock would have prevented an accurate reading of light. He stated, I have done enough measurements with the instrument to know of that which I can and cannot do, and at the time I was there, it would not be practical to make that measurement. 3 The plaintiff states that Dr. Harrison s observation is 2 Deposition of Dr. Harrison, page 18 (Jan. 23, 2006). 3 Deposition of Dr. Harrison, page 14 (Jan. 23, 2006). 3

4 based on his experience using a light meter and investigating these types of cases. Furthermore, the plaintiff argues that even if a light meter exists that would read fractions of a light meter, that reading would be irrelevant to Dr. Harrison s conclusion that the lighting on the dock violated the code. The plaintiff also argues evidence from the defendant s own expert witness also shows that Dr. Harrison s conclusions are based on principles reasonably relied on by experts in the field. According to the plaintiff, the defendant s expert did not take measurements using a light meter when he tried to replicate the scene of the injury. The defendant also argues that Dr. Harrison s conclusions regarding the tripand-fall mechanism also should be barred because he is not qualified to render an opinion on the fall. The defendant argues that Dr. Harrison has no background, education or other qualifications in biomechanics, which is the study of how living things move in relation to mechanical principles. Although the plaintiff supports Dr. Harrison s assertion that he is competent to testify to this as it relates to fall prevention, the defendant argues that Dr. Harrison s failure to cite any scientific studies, peerreviewed publications or treatises to support his own conclusions regarding the mechanics of the fall, his own definition of human factor analysis and recitation of his credentials belie his qualifications to testify in the field and his assertion that he has analyzed human factors in this case. The plaintiff argues that Dr. Harrison has been qualified as an expert in previous fall cases. His expertise, according to plaintiff, ranges from how people walk and fall to testimony in cases involving safety devices. Additionally, he has taken courses on 4

5 human behavior and been to seminars on fall prevention. As part of expressing an opinion in trip and fall cases, Dr. Harrison tries to make sure that the individual s fall pattern complies with the level of physics and gravity and... human factors. 4 The plaintiff argues Dr. Harrison did just that in this case. As to the third issue condition of the pier decking the defendant argues that Dr. Harrison s opinion is not expert based but rather is a regurgitation of testimony from selected fact witnesses and a highly subjective interpretation of a repair estimate. The defendant argues this does not assist the trier of fact. The plaintiff argues Dr. Harrison is qualified to testify regarding the deck condition because he has a master s degree in structural engineering. Dr. Harrison and the defendant s expert witness have views that are diametrically opposed and the defendant s expert bases his opinion on the testimony of Rusty Rudder employees as well. The plaintiff argues that Dr. Harrison bases his opinion on pier records, the testimony of Mr. Whitford and eyewitness testimony. Based on Dr. Harrison s credentials, it appears that he is well qualified to testify as an expert as to the lighting and dock conditions as he is a professional engineer with more than thirty years of experience and he appears to base his opinion on information relied upon by others in his field. Additionally, the information will assist the trier of fact, will not create unfair prejudice and the information is relevant and reliable. There is serious disagreement with the expert to be called, and counsel will, I expect, point this out in cross-examination. 4 Deposition of Dr. Harrison, page 43 (Jan. 23, 2006). 5

6 As to the trip and fall mechanism, although Dr. Harrison is not holding himself out to be a human factor engineer, he has experience and education in this discipline 5 as it is implicated in the area of human behavior in fall prevention. Dr. Harrison has taken courses on human behavior, been to seminars on life safety and fall prevention, and read hundreds of publications on such topics. 6 His thirty-nine years of professional experience includes the investigations of more than one thousand falls involving piers, stairs, steps, ramps, ladders, platforms, sidewalks, parking lots, guardrail failures, unguarded edges and floors. 7 Additionally, he has testified as a civil engineer, safety engineer, building code expert on human factors with respect to fall prevention, i.e. how people walk and fall. This includes a discussion of safety devices such as guardrails, handrails and depth geometry. 8 To form an opinion on trip and fall cases, Dr. Harrison tries to make sure that the individual s fall pattern complies with the level of physics and gravity and... human factors. 9 The opinion, according to the plaintiff, corroborates an eyewitness who saw the plaintiff trip. Moreover, the plaintiff states Dr. Harrison does not express an opinion on whether the medical records corroborate his conclusion because that is outside his area of expertise. 5 Human factor engineering has been loosely defined as the study of how humans act and react in certain situations. Honeycutt v. Kmart, Corp., 1 S.W.3d 239, 244 (Tex. App. 1999). 6 Deposition of Dr. Harrison, page 47-48(Jan. 23, 2006). 7 Report of Gregory A. Harrison regarding Marks v. Rusty Rudder, et al. page 1. 8 Deposition of Dr. Harrison, page 46 (Jan. 23, 2006). 9 Deposition of Dr. Harrison, page 43 (Jan. 23, 2006). 6

7 With this in mind, however, Dr. Harrison will not be given unfettered reign to opine on the nature and extent of the plaintiff s fall in relation to his injuries. Dr. Harrison is not a biomechanical engineer nor is he a medical doctor. As such, Dr. Harrison will be prevented from discussing his opinion regarding what he believes the plaintiff s injuries indicate regarding the fall. Dr. Harrison will, however, be allowed to give his opinion on the plaintiff s trip and fall using his background in human factors as it pertains to the mechanical aspect of tripping and falling on a flat surface. Therefore, Dr. Harrison will be allowed to give expert testimony on the lighting and pier decking as well as his opinion regarding human factors as they relate to falls so long as he does not rely upon or utilize medical records or information regarding the plaintiff s injuries to corroborate his testimony. For the foregoing reasons, the defendant s motion to preclude the testimony of Dr. Harrison is denied. IT IS SO ORDERED. WLW/dmh oc: Prothonotary xc: Order Distribution /s/ William L. Witham, Jr. R.J. 7