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Logan v. Harrahs Atlantic City Operating Co., LLC

United States District Court, D. New Jersey

September 19, 2018

PAUL LOGAN, Plaintiff,
v.
HARRAH'S ATLANTIC CITY OPERATING COMPANY, LLC, d/b/a HARRAH'S RESORT, et al., Defendants.

          ALEX STEVEN CAPOZZI EDWARD P. CAPOZZI BRACH EICHLER LLC., On behalf of Plaintiff

          RUSSELL L. LICHTENSTEIN JUSTIN BRITTON COOPER LEVENSON PA, On behalf of Defendants.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Presently before the Court is Defendants' motion for summary judgment on Plaintiff's claims arising out of a fall he suffered on Defendants' premises. Defendants' motion seeks to bar the testimony of Plaintiff's expert, without whom, Defendant argues, Plaintiff cannot prove liability. For the reasons expressed below, Defendants' summary judgment motion will be denied.

         BACKGROUND

         On November 9, 2014, Plaintiff, Paul Logan, was a patron with a group of friends at Xhibition Bar in Defendant Harrah's Resort Atlantic City. The group was seated at a table with chairs and a banquette sofa. Behind the sofa was a ledge and closed curtains. The group asked the waitress to take a photo of them, and Plaintiff got up from this chair to gather with the group behind the table. In order to capture the entire group in the photo, the waitress asked them to squeeze together. Plaintiff attempted to lean onto the ledge behind the sofa and rest against the curtain, which he believed was covering a glass window. There was no glass, however, and Plaintiff fell through the opening and was injured.

         Plaintiff claims that Harrah's is liable for his injuries due to its negligence in maintaining a hazardous condition. Harrah's has moved for summary judgment on Plaintiff's negligence claim, arguing that the testimony of Plaintiff's liability expert should be barred under Federal Rule of Evidence 702[1] and the standard under Daubert v. Merrell Dow Pharma., 509 U.S. 579 (1993), [2] because his opinions are unreliable, not supported by any scientific methodology, and therefore provide no assistance to the jury.[3] The premise for Harrah's argument is that without the testimony of Plaintiff's proffered expert, Plaintiff cannot establish that Harrah's breached the applicable duty of care, thus entitling Harrah's to judgment in its favor.

         Plaintiff has opposed Harrah's motion. Plaintiff argues that his expert meets the Rule 702 and Daubert standard. Plaintiff also argues that Harrah's motion is premature and its arguments should be advanced in a pre-trial motion in limine. Plaintiff further argues that even if his expert is barred, he has sufficient evidence and testimony from other sources to permit his negligence claim to go to trial.

         DISCUSSION

         A. Jurisdiction

         This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75, 000. Plaintiff is a citizen of New York. Defendants are citizens of New Jersey and Nevada.

         B. Standard for Summary Judgment

         Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed.R.Civ.P. 56(a).

         An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence “is to be believed and all ...


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