States et al v. Fernwood Hotel and Resort et al

Filing 104

OPINION and ORDER denying 28 Motion. Defendants' Motion to Exclude the Testimony of Morris Silberman, or in theAlternative, for a Daubert Hearing (Doc. No. 28) is DENIED.Signed by Honorable Joel H. Slomsky on 1/15/2014 (bg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD A STATES, JR., et al.,
Plaintiffs,

CIVIL ACTION
NO. 12-0906

V.

FERNWOOD HOTEL AND RESORT, et al.,
Defendants.

Opinion
Before the Court is Defendants' Motion to Exclude the Testimony of Morris Silberman,
or in the Alternative, for a Daubert Hearing. (Doc. No. 28.) In deciding this Motion, the Court
has reviewed the Motion (Doc. No. 28), Defendants' Brief in Support (Doc. No. 29), Plaintiffs'
Response (Doc. No. 33), Plaintiffs' Brief in Opposition (Doc. No. 34), and supporting exhibits
submitted by the parties.
By way of background, on June 19, 2010, Plaintiff Richard States, Plaintiff Amaryllis
Roman and their daughter B.L.S., a minor, were seated in Defendants' Wintergreens Restaurant.
(Doc. No. 3 at 3.) The restaurant was enclosed by a greenhouse-like structure, with double pane
glass windows comprising the walls and roof. Suddenly, the bottom pane of a window came
falling down from the ceiling and hit Plaintiff Richard States on the head, resulting in injuries to
his head and neck. (Id.) Plaintiffs allege claims of negligence against Defendants.

(MJ

Plaintiff

Roman also alleges claims of negligent infliction of emotional distress and loss of consortium.
(Id. at 3- 9.)
As a preliminary matter, the Court will not hold a Daubert hearing on the Motion to
Preclude the Testimony of Morris Silberman. The decision "to hold [a Daubert hearing] rests in

the sound discretion of the district court" and, as noted by the Third Circuit, a Daubert hearing is
not always required. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d 1999). There is a full
record before the Court on this issue including Silbennan's expert report and deposition. Under
Third Circuit precedent, nothing more is required for a court to detennine the admissibility of an
expert witness. See Oddi v. Ford Motor Co., 234 F. 3d 136, 154 (3d Cir. 2000) (Upholding a
district court's decision to deny a Daubert hearing where the court "already had before it the
depositions and affidavits of the plaintiff's experts.")
The testimony at issue is that of Plaintiffs' expert, Morris Silbennan. Silbennan has been
in the glass business for thirty-nine years. (Doc. No. 33 at 4.) He began as a glazier in the
1970's and has since run companies engaged in glass installation for both homes and offices.
(Id.) Every year, he attends classes in the glass field to keep current on new materials. (Id. at
45.) He oversees and troubleshoots glass installation projects and is familiar with building codes
in the tri-state New York area. (Id.) He has worked with tempered glass and with greenhouse
structures similar to the structure in Wintergreens Restaurant. (IQJ Throughout his career he has
trained over 200 apprentice glaziers, and builders rely on him for his glass expertise. (Doc. No.
33 at 35.)
In his report, Silbennan found that the Wintergreens Restaurant's glass structure was at
least twenty-five years old and had not been properly maintained. He found that the glass was
"abused by drilling holes, hanging chains and hooks, a bar attached to the structure, leaking
thenno seals, temperature fluctuations and a lack of maintenance," and that this abuse weakened
the structure, causing a glass pane to fall on Plaintiff Richard States. (Doc. No. 33 at 7.) He
further found that the structure's abuse "would alert any reasonable restaurant owner to the
potential danger to its patrons sitting underneath the glass roof." (Doc. No. 33 at 7.)

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Silberman's findings are based on his review of photographs from the scene of the
accident, including photos of the glass structure, the broken pane, the shattered glass, and the
structure's window frames. (Id. at 5.) Additionally, he reviewed Plaintiffs' depositions, the
deposition of Andrew Wolf, a designee for the corporation, and the report of defense expert, Dr.
Paul Verghese, Ph.D. He also reviewed Plaintiff States' medical records from the accident. (Id.)
Defendants argue that Silberman's testimony is inadmissible under Federal Rule of
Evidence 702. Rule 702, which "governs the admissibility of expert testimony, has a liberal
policy of admissibility." Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997).
In Pineda v. Ford Motor Co., 520 F.3d 237 (3d Cir. 2008), the Third Circuit held that Rule 702
"has three major requirements: (1) the proffered witness must be an expert, i.e., must be
qualified; (2) the expert must testify about matters requiring scientific, technical or specialized
knowledge; and (3) the expert's testimony must assist the trier of fact." Id. at 244. These
requirements are also referred to as "qualification, reliability and fit." Estate of Schneider v.
Fried, 320 F. 3d 396, 404 (3d Cir. 2003). For the following reasons, the Court finds that
Silberman's testimony satisfies the requirements of Rule 702.
Qualification

First, the Third Circuit has "interpreted Rule 702's qualification requirement liberally."
Pineda, 520 F.3d at 244 (citing Schneider, 320 F.3d at 404; In re Paoli R.R. Yard PCB Litig., 35
F.3d 717, 741 (3d Cir. 1994)). Accordingly, a "broad range of knowledge, skills, and training
qualify an expert." Paoli, 35 F.3d at 741. Because both the "substantive" and "formal"
qualifications of an expert are viewed liberally, the Third Circuit has "eschewed imposing overly
rigorous requirements of expertise and [has] been satisfied with more generalized qualifications."
Id. For example, in Hammond v. International Harvester Co., 691 F. 2d 646 (3d Cir. 1982), the

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Third Circuit found that an automobile and agricultural equipment salesperson who taught high
school automobile classes qualified as an expert in a personal injury case involving a tractor.
The Hammond Court found that "[p]ractical experience as well as academic training and
credentials may be the basis of qualification (as an expert witness)." Id. at 653 (quoting Moran
v. Ford Motor Co., 476 F.2d 289, 291 (8th Cir. 1973) (internal quotation omitted); see also,
Lauria v. Nat'l R.R. Passenger Corp., 145 F. 3d 593, 599 (3d Cir. 1998) (Foreman's years of
experience with railroad track equipment, maintenance, and safety qualified him to testify as an
expert on Amtrak's duty to maintain railroad track.)
Defendants argue that Silberman is not qualified to testify as an expert because he "does
not claim to have taken any engineering courses, is not a licensed professional engineer and does
not hold himself out as an engineering expert in any specialized field of engineering." (Doc. No.
29 at 10.) As previously mentioned, Silberman has been in the glass business for thirty-nine
years. Builders rely on his expert opinion, and have done so for years. Every year, he attends
classes in the glass field to keep current on new materials. In this case, Silberman's extensive
personal and practical experience in the glass industry qualifies him an expert. As such, he more
than satisfies Rule 702' s liberal "qualification" requirement.
Reliability

Turning to the "reliability" requirement, the Third Circuit has interpreted reliability "to
mean that an expert's testimony is admissible so long as the process or technique the expert used
in formulating the opinion is reliable." Pineda, 520 F.3d at 244 (quoting Paoli, 35 F.3d at 742)
(internal quotations omitted). Notably, "[t]he evidentiary requirement ofreliability is lower than
the merits standard of correctness." Id. at 744. Admissibility turns "on the expert's methods and

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reasoning; credibility decisions arise after admissibility has been determined." Kannankeril, 128
F.3d at 806.
Defendants urge the Court to rely on a list of factors cited in Daubert and the Third
Circuit case United States v. Downing, and to compare the factors to the ones relied on by
Silberman in his methodology. The factors Defendants argue that the Court must consider are:
"(I) whether a method consists of a testable hypothesis; (2) whether the method has been subject

to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of
standards controlling the technique's operation; (5) whether the method is generally accepted; (6)
the relationship of the technique to methods which have been established to be reliable; (7) the
qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial
uses to which the method has been put." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
592-94 (1993); United States v. Downing, 753 F.2d 1224, 1238-39 (3d Cir. 1985).
It is well established, however, that these factors "are neither exhaustive nor applicable in
every case." Kannankeril, 128 F .3d at 806-07. The Daubert Court "made clear that its list of
factors was meant to be helpful, not definitive." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 151 (1999). Indeed, some courts have held that when examining expert testimony that is
based on practical experience, rather than academic theories, "the Daubert factors (peer review,
publication, potential error rate, etc.) simply are not applicable," because the reliability of
testimony from a practical experience expert "depends heavily on the knowledge and experience
of the expert, rather than the methodology or theory behind it." United States v. Hankey, 203
F.3d 1160, 1169 (9th Cir. 2000).
Silberman rendered his opinion after a careful review of the evidence. It is not based on a
scientific hypothesis that can be published or peer reviewed. His opinion is supported, though,

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not by a testable theory, but by his understanding of glass products. Silberman has extensive
experience with tempered glass, gleaned from his career in the industry, installing glass,
especially in greenhouse structures similar to the one from which the glass fell on Plaintiff
States, and serving as a glass consultant on major projects. His thirty-nine years of personal and
practical experience support the reliability of his opinion. As such, many of the factors
Defendants ask the Court to examine - peer review, publication, potential rate of error, general
acceptance, standards controlling the technique's operation, and the relationship of the technique
to reliable methods - do not apply to Silberman's testimony.
Because his opinion is based solely on his experience, however, the Court has examined
Silberman's qualifications and the non-judicial uses to which his opinions have been put.
Downing, 753 F.2d at 1239. As discussed, Silberman has experience in the glass field in both
the private and commercial context. What most impresses the Court is his experience with
tempered glass, the kind of glass at issue in this case, and his experience with greenhouse-like
structures, the type of structure at issue in this case. His years of experience and relevant
expertise provide the necessary support for his opinions. Also, his opinions have been requested
in a non-judicial context, as he has been brought on as a consultant for glasswork in both homes
and offices.
Silberman's testimony is similar to the expert testimony presented in Pineda. In that
case, the Third Circuit allowed testimony from an engineer who worked extensively in the glass
and ceramics fields. The expert testified that an automobile manufacturer should have included
in its service manual a step-by-step guide on how to prevent the failure of glass in a car's rear
liftgate. 520 F. 3d at 245. Defendant questioned the admissibility of the expert's testimony,
arguing that his opinion was based on nothing more than his "generalized experience." Id. at

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248. However, the Third Circuit recognized that the expert's opinion was supported by his years
of experience in the glass field and that he was not required to test his opinion. The Court found
that:
[Plaintiff] proffered [the expert] as an engineering expert who
understood the stresses and forces that might cause glass to fail.
[The expert's] specialized, rather than generalized, experience in
this area allowed him to recognize that exerting a force on one area
of the rear liftgate glass before exerting a force on another area of
the glass could lead to its shattering. [The expert] did not have to
develop or test alternative warnings to render an opinion that the
. . . service manual did not provide adequate, step-by-step
instructions to account for the different stresses that might be
exerted when an automobile technician replaces the rear liftgate
brackets and hinges, or that the lack of instructions was a safety
issue for the technician.
Id. Similarly, Silberman's opinion as to the structural integrity of the Wintergreens Restaurant's
glass enclosure is based on his years of specialized, rather than generalized, experience in the
glass field. His review of photographs of the area of the greenhouse where the glass fell and
other items led him to conclude that several "holes, hanging chains and hooks, a bar attached to
the structure, leaking thermo seals, temperature fluctuations and a lack of maintenance" caused
the structure to weaken and the glass to fall. (Doc. No. 33 at 7.) His opinion therefore is
supported by his experience, and meets Rule 702's reliability requirement.

Finally, Silberman's testimony also "fits" the issues in this case. In order to satisfy the
"fit" requirement, "the expert's testimony must be relevant for the purposes of the case and must
assist the trier of fact." Schneider, 320 F. 3d at 404. Because this case turns on what caused the
glass pane to fall onto Plaintiff Richard States, Silberman's opinion that the glass fell because of
years of neglect and abuse certainly would assist the trier of fact and is relevant for the purposes

of the case.
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Conclusion

For the foregoing reasons, Silberman will be permitted to testify at trial. "Any dispute
... about the strength of [Silberman's testimony] in this case should be resolved by the jury."
Pineda, 520 F. 3d at 249. Defendants' Motion to Exclude the Testimony of Morris Silberman, or
in the Alternative, for a Daubert Hearing (Doc. No. 28) will be denied.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD A STATES, JR., et al.,
Plaintiffs,

CIVIL ACTION
NO. 12-0906

v.
FERNWOOD HOTEL AND RESORT, et al.,
Defendants.

ORDER
AND NOW, this 15th day of January 2014, upon consideration of Defendants' Motion to
Exclude the Testimony of Morris Silberman, or in the Alternative, for a Daubert Hearing (Doc.
No. 28), Defendants' Brief in Support (Doc. No. 29), Plaintiffs' Response (Doc. No. 33),
Plaintiffs' Brief in Opposition (Doc. No. 34) and supporting exhibits submitted by the parties, it
is ORDERED that Defendants' Motion to Exclude the Testimony of Morris Silberman, or in the
Alternative, for a Daubert Hearing (Doc. No. 28) is DENIED.

BY THE COURT: