Wagner v. Marshal Hotel & Resorts Inc. et al

Filing 135

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 8/21/2014. (ksr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MARK WAGNER,
Plaintiff,

v.
Civil Action No. 13-81-RGA
SEA ESTA MOTEL I, MARSHALL
HOTELS & RESORTS, INC., CAROLYN
A. METZ, and GEORGE METZ, III,
Defendants.

MEMORANDUM OPINION

Augustdl_, 2014

ANDRE~~
This case arises out of a Memorial Day weekend accident in 2011 where Mark Wagner,
the Plaintiff, fell from the third floor of the Sea Esta Motel I when the wooden railing he was
leaning on gave way. Plaintiff sued Carolyn A. Metz, the motel owner, her son, George Metz,
III, and Sea Esta Motel I (collectively, "the Sea Esta Defendants"), in addition to Marshall Hotels
& Resorts, Inc., a property management company hired a week before the accident to manage the

motel.
Presently before the Court are two Daubert motions filed by the defendants in this case.
Marshall filed the first motion to exclude portions of testimony from the Sea Esta Defendants'
expert, Elaine Warga-Murray. (D.I. 92). The second Daubert motion, filed by the Sea Esta
Defendants, seeks to preclude trial testimony from two of the Plaintiffs expert witnesses, Jim
Yost and Serge Borichevsky. (D.I. 104). The issues have been fully briefed. (D.I. 92, 105, 111,
116, 118 & 124). For the reasons stated below, Marshall's Daubert motion is denied, and the
Sea Esta Defendants' motion is granted in part.

I. LEGAL STANDARD
Federal Rule of Evidence 702 sets out the requirements for expert witness testimony and
states:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) the expert's
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts ofthe case.
FED. R. Evm. 702. The Third Circuit has explained:
Rule 702 embodies a trilogy of restrictions on expert testimony: qualification,
reliability and fit. Qualification refers to the requirement that the witness possess

1

specialized expertise. We have interpreted this requirement liberally, holding that
"a broad range of knowledge, skills, and training qualify an expert." Secondly, the
testimony must be reliable; it "must be based on the 'methods and procedures of
science' rather than on 'subjective belief or unsupported speculation'; the expert
must have 'good grounds' for his o[r] her belief. In sum, Daubert holds that an
inquiry into the reliability of scientific evidence under Rule 702 requires a
determination as to its scientific validity." Finally, Rule 702 requires that the expert
testimony must fit the issues in the case. In other words, the expert's testimony
must be relevant for the purposes of the case and must assist the trier of fact. The
Supreme Court explained in Daubert that "Rule 702's 'helpfulness' standard
requires a valid scientific connection to the pertinent inquiry as a precondition to
admissibility."

Schneider ex rel. Estate ofSchneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (footnote and
internal citations omitted).

II. DISCUSSION
After applying the above framework to the motions at issue, I am convinced that
Marshall's motion should be denied and the Sea Esta Defendants' motion should be granted with
respect to Mr. Borichevsky.

A. Marshall's Motion
The Sea Esta Defendants retained Ms. Warga-Murray "to comment on the property
manager's responsibility for repair, response, and action with regard to the condition of railings,
decks and common area[s] used by motel guests and occupants." (D.I. 92-2, p. 1). Marshall
objects to portions of Ms. Warga-Murray's report relating to the interpretation of contractual
provisions in the Management Agreement entered into between Marshall and the Sea Esta
Defendants. (D.I. 92 at 2-3 (quoting section ofMs. Warga-Murray's report concluding that
"[t]he documents, exhibits etc. that I reviewed demonstrate that MARSHALL HOTELS &
RESORTS, INC. did not act in accordance with the appropriate conduct and standard of care
expected of Real Estate Management or in accordance with the terms of the Management
Agreement")). Marshall supports its position with citations to Delaware cases purporting to hold
2

that "[i]t is improper for a witness to opine on legal issues governed by Delaware law." (/d. at
2). As an initial matter, the admissibility of expert testimony in this case is governed by federal
law. The Delaware case law cited by Marshall is not persuasive on this point. Moreover, Ms.
Warga-Murray's report mostly evaluates Marshall's conduct and forms an opinion regarding
how it compares to both the applicable standard of care for a property manager and what
Marshall was contractually bound to do under the Management Agreement. 1 This falls properly
within the province of expert testimony and does not violate the Daubert standard. Any
perceived shortcomings in Ms. Warga-Murray's expert report can be explored on cross
examination.

B. Sea Esta Defendants' Motion
The Plaintiff retained the services of two experts, Jim Yost and Serge Borichevsky. Mr.
Yost was asked to explain the standard of care for a property manager and whether it was
breached. (D.I. 105-1, p. 1). The Plaintiff sought Mr. Borichevsky's analysis ofthe physical
evidence to determine the cause of the Plaintiffs fall. (D.I. 105-3, p. 3). The Sea Esta
Defendants object to both experts' reports. (D.I. 105 at 1).
Mr. Yost, the Sea Esta Defendants contend, cannot base his opinion regarding an alleged
breach of the standard of care upon an examination of physical evidence because he lacks the
required education and training. (D.I. 105, p. 7). This argument is not persuasive. Mr. Yost
graduated with a degree in Hotel and Restaurant Management and possesses many years of
experience as a manager for various hotel and condominium associations. (D.I. 105-2). This
background qualifies him to provide an opinion on the standard of care for a reasonable property

1

Marshall cites several cases questioning whether Ms. Warga-Murray's interpretation of the Management
Agreement would be helpful to the trier of fact in its reply brief, but not in its opening brief. (D.l. 118, p. 2). This is
not permissible under Delaware Local Rule 7.1.3(c)(2). Because this issue is not properly before me at this time, I
express no opinion on its merits.

3

manager. It does not require additional credentials beyond Mr. Yost's experience to look at a
piece of wood from a handrail and offer an opinion as to what actions the standard of care
requires a property manager to take.
With respect to Mr. Borichevsky, the Sea Esta Defendants assert that his testimony
should be confined to an evaluation of the physical evidence-i.e., he has no expertise regarding
a property manager's applicable standard of care. (!d. at 7-8). The Court agrees. Mr.
Borichevsky is a forensic civil engineer with almost fifty years of experience in the field. (D.I.
105-9). As such he is clearly qualified to analyze the physical evidence. To the extent that Mr.
Borichevsky's report purports to apportion legal liability or to offer opinions beyond his field of
expertise, however, it is stricken.

III. CONCLUSION
For the reasons stated above, Marshall's Daubert motion is denied, and the Sea Esta
Defendants' motion is granted in part. An appropriate Order will follow.

4