A federal judge recently dismissed a premises liability case after ruling that an expert witness report lacked a reliable scientific basis concerning the safety and condition of a concrete step at a grocery store exit, and also ruling that the store’s repair of the concrete step within six weeks of the plaintiff tripping and falling should be excluded from evidence.
The engineering expert examined the staircase in 2019, two years after the trip and fall. The judge determined that the expert failed to substantiate his opinion that the plaintiff’s foot caught on a metallic tread that had loosened because of corrosion and deterioration of the surrounding concrete, according to an article in Massachusetts Lawyers Weekly.
“[The expert] states that ‘[m]etal corrosion and concrete deterioration progress across time,’ but notably provides no scientific rationale for why the state of corrosion and deterioration in 2019 proves that a similar state existed in 2017,” wrote U.S. District Court Judge Denise Casper of the District of Massachusetts.
The plaintiff was injured after falling down the concrete staircase as she was exiting a Whole Foods store in Cambridge. She alleged that her foot caught on a loose or raised tread near the top of the stairs.
The judge also rejected the plaintiff’s argument that the subsequent repair of the concrete steps was admissible to impeach two store employees who testified that they did not see any damage to the concrete step after examining it shortly after the woman tripped and fell. The judge determined that the subsequent repair was only “tangentially” related to the credibility of the testimony of the two store employees and should be excluded.
The premises liability case was challenging for the plaintiff, Mr. Catalano observed, because she was not able to identify which step caused her to trip, and the expert did not inspect the stairs until two years after the accident.
“It’s one of those cases where tough facts make bad law,” Catalano told the publication. “The court was presented with a situation where the reliability of the expert opinion was not easy to ascertain.”
However, Mr. Catalano indicated that evidence of the grocery store’s subsequent repairs of the staircase should not have been excluded.
“The plaintiff should have been given the benefit of the doubt and been allowed to put that into evidence to let the jury decide what they thought about it,” he said.
Mr. Catalano, a partner at the firm, represents victims of catastrophic injuries in personal injury cases, including those involving premise liability matters.
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