Daubert Doesn’t Require Physical Inspections: SD Fla.

Expert witnesses commonly inspect allegedly defective equipment at the center of personal injury claims, but those inspections are not necessarily required, a magistrate for the US Southern District of Florida has ruled.

In Cabrera v. Macy's Florida Stores (1:20-cv-24173-KMW SD Fla), the plaintiffs, Migdalaia Cabrera and Jose Cabrera, filed a Daubert Motion to exclude the testimony of the defendant Macy's elevator and escalator expert witness, John Donnelly, based primarily on his failure to file an expert witness report and to inspect the equipment at issue, an escalator.

The case arose from Mrs. Cabrera's allegation that the escalator malfunctioned “by violent shaking and/or jerking and/or vibration” which caused her to fall.

At Donnelly's deposition, he opined that “basically the escalator worked as designed, there was nothing wrong with the escalator, and it's my opinion that there was nothing Schindler or Macy's could have done, or should have done that would have prevented the incident.”

The Cabreras focused on Donnelly's assumption that the escalator had a handrail speed monitoring device. When asked to explain his assumption, he said it was based on the escalator having been modernized and having a “comb plate impact device” which required under the code that a speed monitoring device be installed. Donnelly did not inspect or test the escalator, and he did not know of a service record showing a handrail monitor being installed.

On review, the Court found that, while Donnelly was required to submit an expert report and did not, the Cabreras did not show how they were harmed by it, and never complained about it until the Daubert Motion. They claimed in their motion that “the prejudice is obvious as the Plaintiffs are blindsided with no time to obtain rebuttal opinions from its own expert.” The Court noted, however, that the Cabreras had retained no expert to rebut Donnelly's opinion, and therefore could not find any harm done by the failure to submit an expert report.

As for the Cabreras contention that Donnelly was unqualified to render opinions in the case because he “never examined the escalator,” the Court found that it was not enough by itself to determine reliability under Daubert: “physical inspections are not necessarily required.”

The Court denied the Cabreras' Daubert Motion.