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Did Plaintiff’s Expert Wait Too Long to Inspect a Defect? It May Not Matter for Summary Judgment.

August 9, 2016

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When defending a premises liability action, defendants will look to see how long after an accident the plaintiff’s expert waited to inspect a certain defect. Sometimes, if there is a large gap of time in between the date of the accident and the expert inspection, defendants will argue that the condition of the defect could have deteriorated or changed such that the expert opinion lacks credence.
In <a href="http://blog.wcmlaw.com/wp-content/uploads/2016/08/Elsawi-v-Saratoga-Springs-City-School-Dist.pdf">Elsawi v Saratoga Springs City School Dist</a>, the plaintiff was rehearsing with her middle school classmates for a concert when a stage riser collapsed as she walked across it, causing her to fall and sustain injuries.  In their summary judgment motion, the defendants provided an affidavit of the school’s head custodian as well as an expert engineer, who both stated that the riser was well maintained, had no obvious defects, and was properly assembled and inspected prior to the accident.  In opposition, plaintiffs submitted their own expert affidavit from a licensed engineer who examined the riser approximately three years after the accident.  Plaintiff’s expert opined that there were easily observable defects in the riser braces that caused the brace locking mechanism to disengage and ultimately caused the riser to collapse. Defense counsel argued that plaintiff’s expert affidavit was conclusory, unsupported and legally insufficient to defeat summary judgment.
The Court noted that although the plaintiffs’ expert did not examine the riser until three years after the incident, “there [was] no evidence in the record indicating that its condition had deteriorated between the date of the incident and the date of [the] examination, and ‘we do not find his opinion . . . to be so lacking in factual or scientific foundation as to be utterly devoid of merit.’”   The Court noted that although the shortcomings of the plaintiff’s expert affidavit that defense counsel perceived may affect the weight to be accorded to the expert opinion at trial, “his affidavit [was] legally sufficient to raise triable issues of fact.”  Accordingly, the Court affirmed the trial court’s denial of the defendant’s motion for summary judgment.
Defense counsel should be mindful that a large gap of time in between the date of an accident and the date of an expert’s inspection will not necessarily affect an expert affidavit at the summary judgment stage. Although such a gap of time may affect a jury’s perception of the expert’s credibility, it has no such effect in the context of a motion for summary judgment.
Thanks to Jeremy Seeman for his contribution to this post.

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