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Court Holds Plaintiff’s Expert Lacks Factual Basis (… and is Inconsistent with Plaintiff’s Theory of Liability Anyway)

May 24, 2024

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Last week, an appellate court in New Jersey affirmed summary judgment in favor of defendants in a slip and fall case that took place in a Wawa parking lot.  Brueck v. Wawa, Inc., & Sherwin Williams Company, et al, No. A-0249-22, 2024 WL 2235537, at *1 (N.J. Super. Ct. App. Div. May 17, 2024).

Plaintiff Edward Brueck slipped and fell on a yellow parking line on a rainy day.  He commenced suit against Wawa, the paint supplier Sherwin-Williams, and Asphalt Pavement Services (“ASP”) which had striped the lot.  Id. 

To substantiate his claim, Plaintiff produced an expert report from Wayne F. Nolte, Ph.D (“Nolte”).  Over seven weeks after the accident, Nolte inspected the scene of the fall on a clear day.  He “sprayed water on the line” and measured “the Coefficient of Friction Value,” which he then compared to the guideline set forth by the American National Standards Institute.  Id. at 2.  Nolte stated that rain was an expected environmental condition, but on the date of the accident the paint was not sufficiently slip resistant to hold Plaintiff’s foot in place.  He further opined that site was in a “hazardous condition” on the date of the incident due to the presence of oils and greases along the painted line, which ultimately caused the slick condition that resulted in Plaintiff’s fall.  Id. at 2.

Defendants Wawa and Sherwin-Williams produced their own expert reports that challenged plaintiff’s expert’s conclusions and methodology.  Additionally, during Nolte’s deposition he stated that he had not seen any oil or grease during his inspection but “assumed” there were oils and greases present due to the traffic coming in and out of Wawa, and, based on his co-efficient of friction measurements.  Id. at 3, 4.

The lower court granted summary judgment for the defendants, holding that plaintiff’s expert’s theory of liability “fell apart” without facts supporting the presence of oil or grease, “rendering his report unhelpful to a jury and therefore inadmissible.”  Id. at *3.

The Appellate Court affirmed, noting that plaintiff’s expert’s conclusions were inconsistent with Plaintiff’s theory of liability.  Specifically, Plaintiff alleged he slipped due to rain on the painted line, yet Nolte concluded that oils and greases created the slick condition that caused Plaintiff’s fall.  The Court also found Nolte’s opinion inconsistent with the facts, as no witnesses testified about seeing oil or grease in the parking lot, Nolte never tested any paint, oil or grease that may have been present, and, he did not test the co-efficient of friction against oil or grease – instead he sprayed water and then measured the co-efficient.  Id. at *5.

This case serves as a helpful reminder to heavily scrutinize expert evidence when it comes to liability, particularly where the expert’s theory differs or especially contradicts the theory of the Plaintiff.  It also shows the importance of moving a court to preclude such evidence at trial.

Edward Brueck v. WAWA Inc. and Sherwin Williams Company
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