United States District Court, D. New Jersey
STEVEN CAPOZZI EDWARD P. CAPOZZI BRACH EICHLER LLC., On
behalf of Plaintiff
RUSSELL L. LICHTENSTEIN JUSTIN BRITTON COOPER LEVENSON PA, On
behalf of Defendants.
L. HILLMAN, U.S.D.J.
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.
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.
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 and the standard under
Daubert v. Merrell Dow Pharma., 509 U.S. 579 (1993),
because his opinions are unreliable, not supported by any
scientific methodology, and therefore provide no assistance
to the jury. 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.
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.
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.
Standard for Summary Judgment
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).
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 ...