Did Trial Court Properly Reject Expert’s Proffer and Dismiss Case?
Carol Ann Zeppetelli sued 1372 Broadway Associates, LLC to recover damages for personal injuries allegedly suffered when she fell while descending a staircase between floors at her place of employment. She alleged that the accident occurred because the carpet covering the stairs was slippery. At trial, the Supreme Court granted Broadway’s motion to preclude the testimony of Zeppetelli’s expert engineer, Stanley Fein. The court then granted Broadway’s motion for a directed verdict at the close of her direct case and dismissed the complaint. Zeppetelli appealed.
As a general rule, the admissibility of expert testimony on a particular point is addressed to the discretion of the trial court. The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror. The Supreme Court providently exercised its discretion in precluding Fein’s testimony regarding the condition of the carpet, as his testimony would not have helped to clarify the issue of whether the carpet was too slippery in violation of American Society of Testing Materials standards.
The opinion testimony of an expert must be based upon facts in the record or personally known to the witness. An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion. Fein’s opinion that the carpet was too slippery was based on ASTM D2047-17, which does not apply to carpets. There was no basis upon which Fein could opine that the 0.5 static coefficient of friction set forth in that standard, which only applied to polish-coated surfaces, also applied to carpeted surfaces such as the staircase where Zeppetelli fell. In other words, Zeppetelli failed to establish that Fein’s opinions related to existing data and were the result of properly applied accepted methodology.
Zeppetelli also had not given notice that she intended to rely on ASTM D2047-17 at trial in a CPLR 3101(d) notice, expert reports, or bills of particulars. Furthermore, there was no evidence that the condition of the carpet that Fein inspected 5½ years after the accident was the same as it was at the time of the accident, and Fein’s conclusion based on his subsequent inspection was therefore speculative and conclusory.
Without Fein’s expert testimony, Zeppetelli could not establish a prima facie case of negligence, as she could not demonstrate the existence of a dangerous or defective condition that caused her injuries, and that Broadway either created or had actual or constructive notice of that condition. Accordingly, the Supreme Court properly granted Broadway’s motion for a directed verdict at the close of Zeppetelli’s case.