Ulmer, D. v. L.F. Driscoll Co. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
DARRIN ULMER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
L.F. DRISCOLL COMPANY AND :
LLOCSIRD, INC. D/B/A LF DRISCOLL :
COMPANY AND J.J. DON, INC. D/B/A :
L.F. DRISCOLL COMPANY, :
:
Appellees : No. 2841 EDA 2013
Appeal from the Order September 24, 2013,
Court of Common Pleas, Philadelphia County,
Civil Division at No. October Term, 2009 No. 3603
BEFORE: DONOHUE, SHOGAN and WECHT, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 17, 2015
Appellant, Darrin Ulmer (“Ulmer”), appeals following the trial court’s
entry of a nonsuit at the close of his case-in-chief at trial. In this appeal,
Ulmer challenges the entry of the nonsuit as well as other procedural and
evidentiary rulings favoring Appellees, L.F. Driscoll Company et al.
(“Driscoll”) and Philadelphia D&M, Inc. (“D&M”). For the reasons that follow,
we reverse and remand for a new trial.
Ulmer’s employer, ThyssenKrupp Elevator Corporation
(“ThyssenKrupp”), was a subcontractor hired to build the elevators in the
new Comcast Center in Philadelphia. Throughout the pendency of the
construction project, ThyssenKrupp had moved elevator doors to upper
floors in a horizontal position by two methods: an exterior hoist and service
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elevators located in the building’s garage and basement staging area.
During the later stages of construction, these options became unavailable
and Driscoll, the construction manager/general contractor, directed
ThyssenKrupp to store the latest shipment of elevator doors in the high-rise
elevator lobby. In this location, space limitations required the elevator doors
to be stacked vertically. Approximately one month prior to the events in
question here, D&M, another subcontractor, had at Driscoll’s instruction
covered the granite floor of the high-rise elevator lobby with a temporary
protective floor covering called Correx. On October 25, 2007, Ulmer, along
with coworkers Robert Donsky (“Donsky”) and Daniel Dubeck (“Dubeck”),
were tasked with moving elevator doors to upper floors of the building for
installation. Because the elevator doors had been laid vertically, Ulmer,
Donsky and Dubeck had to raise the doors to a horizontal position as they
were loaded onto a cart for transportation. When Ulmer began tilting one
elevator door, the bottom of it “kicked out” and fell to the ground, injuring
Ulmer.
On October 23, 2009, Ulmer commenced this negligence action against
Driscoll, and on May 23, 2011, Driscoll joined D&M as a third party
defendant. Prior to trial, Driscoll filed several motions in limine, including
motions (1) to preclude Ulmer from introducing any evidence relating to the
lack of availability of the exterior hoist, and (2) to preclude Ulmer’s expert
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witness from testifying about Correx. The trial court granted both of these
motions in limine.
On January 23, 2013, at the close of Ulmer’s case-in-chief at trial, the
trial court granted Driscoll’s motion for a nonsuit pursuant to Rule 230.1 of
the Pennsylvania Rules of Civil Procedure, on the ground that Ulmer failed to
establish the elements of a negligence claim against Driscoll. On February
4, 2013, Ulmer filed a motion to remove the nonsuit, but the trial court, per
the Honorable Judge Gary Francis Di Vito, did not issue any ruling.
Accordingly, on September 24, 2013, Ulmer filed a praecipe for entry of
judgment, and two days later instituted this appeal. In response, Judge Di
Vito did not issue an order pursuant to Rule 1925 of the Pennsylvania Rules
of Appellate Procedure. After Judge Di Vito’s retirement from the bench, this
case was assigned to the Honorable Judge Annette M. Rizzo, who issued an
order pursuant to Rule 1925(a) and subsequently filed a written Rule
1925(a) opinion supporting Judge Di Vito’s rulings.
On appeal, Ulmer presents five issues for our review and
consideration:
1. Did the trial court err as a matter of law or abuse its
discretion when, after ruling pretrial that [Ulmer]
could pursue a direct claim against [D&M], nine days
into the presentation of the case to a jury[,] the trial
court reversed course and sua sponte precluded
[Ulmer] from pursuing such a direct claim?
2. Did the trial court commit legal error when it granted
a nonsuit in favor of [Driscoll], which had introduced
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evidence in support of its affirmative defenses in
[Ulmer’s] case-in-chief, in violation of the rule of
Pennsylvania law that a nonsuit may not be entered
in favor of a defendant that introduces evidence in
support of its defenses during plaintiff’s case?
3. Viewing all of the evidence actually admitted and
before the jury for its consideration at trial in the
light most favorable to [Ulmer], did the trial court err
or otherwise abuse its discretion in granting a
nonsuit in favor of [] Driscoll on the basis that
[Ulmer] had failed to introduce sufficient evidence
for the jury to find that Driscoll’s negligence in
directing that the elevator doors be staged and
moved on Correx and in violating industry practices
and standards resulting in Ulmer’s being placed in
harm’s way[,] was the factual and legal cause of
[Ulmer’s] injuries?
4. Did the trial court err or otherwise abuse its
discretion in preventing [Ulmer] from introducing
evidence that [] Driscoll had removed or prevented
[Ulmer] from using every previously available safe
means of access for staging and transporting
elevator doors to higher floors of the building, which
evidence had it been admitted would have
unquestionably raised a jury question concerning
whether Driscoll’s negligence was the factual and
legal cause of [Ulmer’s] injuries?
5. Did the trial court err as a matter of law or abuse its
discretion when it prohibited [Ulmer’s] liability
expert, who had 54 years of experience and training
in the construction industry relating to the moving
and staging of heavy materials and temporary
protective floor coverings, from offering any
testimony to establish that Driscoll’s negligence was
the factual and legal cause of [Ulmer’s] injuries?
Ulmer’s Brief at 3-4.1
1
The issues have been renumbered for ease of disposition.
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For his first issue on appeal, Ulmer claims that the trial court erred in
reversing its prior ruling and denying him leave to file a direct claim against
D&M. Id. at 63. D&M responds that a direct claim was barred by the
applicable statute of limitations. D&M’s Brief at 7. In a reply brief, Ulmer
argues that Rule 2255(d) of the Pennsylvania Rules of Civil Procedure
authorized the filing of a direct claim against D&M. Ulmer’s Reply Brief at
27-28.
Under Rule 2255(d), a plaintiff may recover directly from an additional
defendant when the facts established at trial show that the additional
defendant is liable to him or her either solely or jointly with the original
defendant. Ribnicky v. Yerex, 701 A.2d 1348, 1351 (Pa. 1997); Sheriff v.
Eisele, 112 A.2d 165, 166 (Pa. 1955). 202 Island Car Wash, L.P. v.
Monridge Construction, Inc., 913 A.2d 922, 927 (Pa. Super. 2006);
Moscatiello v. Pittsburgh Contractors Equipment Co., 595 A.2d 1198,
1203 (Pa. Super. 1991). Rule 2255(d) does not apply, however, when the
applicable statute of limitations for the plaintiff to file suit has run at the
time the third party defendant is joined to the action. Wnek v. Boyle, 96
A.2d 857, 858 (Pa. 1953); Dickson v. Lewandowski, 323 A.2d 169, 171
(Pa. Super. 1974) (where the statute of limitations had run, “Entry of
judgment against both defendants on the verdict was proper, but that
judgment may not be enforced by the plaintiffs against the additional
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defendant.”); Richards v. Alston, 553 A.2d 488, 490-91 (Pa. Cmwlth.
1989).
On appeal, Ulmer insists that the trial court, by permitting Driscoll to
assert third-party claims against D&M, “already rejected [D&M’s] assertion
that those claims were untimely.” Ulmer’s Reply Brief at 29-30. In at least
two cases, however, Oviatt v. Automated Entrance System Co., Inc.,
583 A.2d 1223 (Pa. Super. 1990) and Hughes v. Pron, 429 A.2d 9 (Pa.
Super. 1981), this Court has rejected the argument that the statute of
limitations in the underlying tort action has any effect upon a defendant's
ability to add third-party defendants. In Oviatt, for example, the additional
defendant argued that it could not be joined because the statute of
limitations for a direct suit by plaintiff had expired. We disagreed, indicating
that the statute of limitations applicable to the plaintiff’s underlying claim
against the additional defendants has no effect on the original defendant’s
ability to enforce a contribution claim against them. Oviatt, 583 A.2d at
1227. We did so because contribution is not a recovery for the tort
committed against the plaintiff, but rather is “the enforcement of an
equitable duty to share liability for the wrong done.” Id.
In the trial court, Ulmer claimed that the applicable two-year statute of
limitations for negligence actions, 42 Pa.C.S.A. § 5524, had not expired
when he sought leave to file a direct claim because it had been tolled by the
discovery rule. Motion for Leave to Assert a Direct Cause of Action,
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1/2/2013, at 6. Because Ulmer has not raised (or even mentioned) the
discovery rule on appeal, however, this argument is waived. See, e.g.,
Commonwealth v. Perez, 93 A.3d 829, 841 (Pa. 2014). Because a
plaintiff may not add a new defendant after the statute of limitations has
run, Anderson Equip. Co. v. Huchber, 690 A.2d 1239, 1241 (Pa. Super.
1997), and because on appeal Ulmer has not proffered any basis for us to
conclude that the statute of limitation had not expired at the time he sought
to assert a direct claim against D&M, we find no error in the trial court’s
January 16, 2013 order denying Ulmer’s motion for leave to add D&M as an
additional defendant.
While Ulmer contends that he was prejudiced by the trial court’s
January 16, 2013 order reversing its prior January 9, 2013 order granting
the motion for leave, he cites to no authority to support the position that
any such prejudice prevented the trial court from issuing the later order. To
the contrary, D&M persuasively argues that it would have likewise been
prejudiced if the trial court had not corrected its January 9, 2013 order that
erroneously permitted the filing of a direct claim beyond the expiration of
the statute of limitations. D&M’s Brief at 10-11. As a result, no relief is due
on this issue.
For his second issue on appeal, Ulmer argues that the trial court
committed reversible error by granting a nonsuit even though Driscoll
introduced evidence in Ulmer’s case-in-chief in support of its affirmative
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defenses. Ulmer’s Brief at 30. Relying on Commonwealth v. Harnish,
732 A.2d 596 (Pa. 1999), Ulmer contends that the trial court “lacked the
legal authority” to enter a nonsuit pursuant to Pa.R.C.P. 230.1. Id. at 32.
The rule applied in Harnish was amended to eliminate its application
in future cases. The version of Rule 230.1 applied in Harnish provided that
nonsuit could only be considered “before any evidence on behalf of the
defendant has been introduced.” In 2001, however, our Supreme Court
amended Rule 230.1 to remove this language and to provide instead that
“the court in deciding a motion for compulsory nonsuit will consider only
evidence that was introduced by the plaintiff and any evidence favorable to
the plaintiff introduced by the defendant prior to the close of the plaintiff’s
case.” Pa.R.C.P. 230.1(a)(2). The explanatory comment to the 2001
amendment specifically referenced Harnish and made clear that henceforth
“if the defendant presents evidence prior to the close of the plaintiff’s case,
the court shall consider, in addition to the plaintiff’s evidence only that
defense evidence which is ‘favorable to the plaintiff.’” Pa.R.C.P. 230.1 (2001
Explanatory Comment); see also Alfonsi v. Huntington Hosp., Inc., 798
A.2d 216, 220 n. 3 (Pa. Super. 2002) (stating that the new rule permits a
court to consider a nonsuit even after the defendant has introduced
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evidence); Brodowski v. Ryave, 885 A.2d 1045, n. 3 (Pa. Super. 2005)
(same).2
Accordingly, Rule 230.1 no longer prohibits the entry of a nonsuit
where the defendant introduces evidence during the plaintiff’s case-in-chief,
so long as the trial court considers only the defense evidence that is
favorable to the plaintiff. We note that Ulmer appears to have conceded this
point, as in his reply brief he offered no response to Driscoll’s arguments
regarding the post-Harnish amendment to Rule 230.1.
For his third issue on appeal, Ulmer asserts that the trial court erred in
entering a nonsuit at the close of his case-in-chief and in refusing to remove
the nonsuit upon the filing of a motion to do so. Ulmer’s Brief at 33. In her
Rule 1925(a) opinion in support of Judge Di Vito’s ruling, Judge Rizzo
concluded that the evidence Ulmer introduced at trial demonstrated only
that an accident happened, and left the jury “to speculate as to causation
between an action of [Driscoll] and [Ulmer’s] injuries.” Trial Court Opinion,
9/5/2014, at 14.
An order denying a motion to remove a nonsuit will be reversed on
appeal if the trial court abused its discretion or committed an error of law.
2
Note that in a 2012 case, Keffer v. Bob Nolan’s Auto Service, Inc.,
59 A.3d 621, 631-32 (Pa. Super. 2012), this Court appeared to cite Harnish
with approval in deciding a nonsuit issue. While this decision probably
should not have cited to pre-amendment authority, it nevertheless found
that a nonsuit had properly been entered and thus did not apply the
Harnish rule.
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Kovalev v. Sowell, 839 A.2d 359, 368 (Pa. Super. 2003); Kuriger v.
Cramer, 498 A.2d 1331, 1335 (Pa. Super. 1985). Nonsuit is proper where
the plaintiff has not introduced sufficient evidence to establish the necessary
elements to maintain a cause of action, and it is the duty of the trial court to
make a determination prior to submission of the case to a jury. Poleri v.
Salkind, 683 A.2d 649, 653 (Pa. Super. 1996). The plaintiff must be given
the benefit of every fact and every reasonable inference arising from the
evidence, and all conflicts in evidence must be resolved in plaintiff's favor.
Eiser v. Brown & Williamson Tobacco Corp., 2006 WL 933384, at *5
(Pa. Super. Jan. 19, 2006). As indicated hereinabove, pursuant to Rule
230.1, if the defendant has introduced evidence, the trial court, in ruling on
a motion for a nonsuit, will consider the defendant’s evidence only if it is
favorable to the plaintiff. Alfonsi, 798 A.2d at 218 n.3.
In this case, the issue turns on whether Ulmer introduced sufficient
evidence to establish a causal link between Driscoll’s actions and his injuries.
Causation is normally a question of law for the jury to decide, and it should
be taken away from the jury only when reasonable minds could not differ.
Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978). In our view,
reasonable minds could certainly differ with respect to whether Ulmer’s
injury was caused by Driscoll’s decision to have ThyssenKrupp store the
elevator doors (vertically) in the high-rise elevator lobby where the granite
floor had been covered with Correx panels, and whether Ulmer’s accident
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was the result of a failure of the Correx panels. Giving Ulmer the benefit of
every fact and every reasonable inference arising from the evidence, the
jury could have understood the testimony of Matthew Lilly (“Lilly”), a
corporate representative of D&M, to establish: (1) that Driscoll ordered D&M
to install Correx on the granite floor of the high-rise elevator lobby; (2) that
Correx is not an appropriate floor covering for heavy materials, as it lacks
“the proper integrity” for heavy materials, and it is instead commonly used
for lightweight circumstances (e.g., to prevent wear from foot traffic); (3)
that the Correx panels installed in the high-rise elevator lobby had a
significant failure rate, requiring the replacement of 30 of the 120 panels
placed there; and (4) that when staging and moving heavy objects, plywood
should be placed on top of the Correx. N.T., 1/15/2013 PM, at 15-16, 26-
29, 41-42, 53-54, 66-70, 86-88.
Likewise, the testimony of Ulmer, Donsky, and Dubeck provided the
jury with information regarding what happened at the time of the accident,
including Ulmer’s testimony that “it felt like the whole floor gave way.” N.T,
1/17/2013 PM, at 15. Donsky testified that he felt the floor move, and that
he could feel the vibrations of the floor (“I felt the thing vibrate, like the
floor, you know, I felt it. It moved.”). N.T., 1/14/2013 PM, at 67. When
asked what caused Ulmer’s injuries, Donsky said, “I think it was the flooring,
yes.” Id. at 84. Similarly, Dubeck testified that he heard the floor move,
and it sounded “like a scraping noise.” N.T, 1/14/2013 AM, at 62, 64.
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These fact witnesses, along with Kelly Longo (“Longo”), the ThyssenKrupp
supervisor at the scene, also provided their observations of the Correx
panels before and after the accident, including that after the accident (unlike
before it) they could see gouge marks in the Correx. N.T., 1/11/2013 AM, at
68-69. Longo, among others, testified that the Correx panels were slippery.
Id. at 61.
Based upon this evidence, Ulmer presented sufficient evidence to
submit the issue of causation to the jury, which could have concluded (even
without substantial testimony from Ulmer’s expert) that Correx was an
improper floor covering for the work Driscoll directed ThyssenKrupp’s
employees to perform at that location, and that Ulmer’s injuries were caused
by a foreseeable failure of the slippery Correx panels. As a result, the trial
court erred in entering, and refusing to remove, the nonsuit against Ulmer,
and we must therefore reverse the entry of judgment and remand for a new
trial.
Because we are remanding this case for a new trial, we must address
the propriety of the trial court’s grants of two motions in limine filed by
Driscoll prior to the first trial. For his fourth issue on appeal, Ulmer contends
that the trial court erred in granting Driscoll’s motion in limine to exclude all
evidence relating to the lack of availability of an exterior hoist to transport
elevator doors at the time of Ulmer’s accident. Ulmer’s Brief at 52-55.
According to Ulmer, Driscoll’s decision to store the elevator doors in the
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high-rise elevator lobby was a proximate cause of his injuries, as it exposed
him to a “serious, unnecessary risk” that could have been avoided if Driscoll
had continued to make the exterior hoist available to ThyssenKrupp. Id. at
55.
Our standard of review when the trial court has granted a motion in
limine is the evidentiary abuse of discretion standard:
Questions concerning the admissibility of evidence lie
within the sound discretion of the trial court, and we
will not reverse the court's decision absent a clear
abuse of discretion. “An abuse of discretion may not
be found merely because an appellate court might
have reached a different conclusion, but requires a
manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be
clearly erroneous.”
Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (citations
omitted), appeal denied, 2015 WL 3500130 (Pa. May 27, 2015).
In Pennsylvania, a finding of negligence requires that actual causation
be accompanied by proximate causation. See Reilly v. Tiergarten Inc.,
633 A.2d 208, 210 (Pa. Super. 1993). Proximate causation is “a wrongful
act which was a substantial factor in bringing about the plaintiff’s harm.”
Eckroth v. Pennsylvania Elec., Inc., 12 A.3d 422, 428 (Pa. Super. 2010).
“Pennsylvania law has long recognized that this substantial factor need not
be … the only factor.” Jones v. Montefiore Hosp., 431 A.2d 920, 923 (Pa.
1981). However, “[i]t is not sufficient … that a negligent act may be viewed,
in retrospect, to have been one of the happenings in the series of events
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leading up to an injury.” Eckroth, 12 A.3d at 427 (quoting Brown v. Phila.
College of Osteopathic Medicine, 760 A.2d 863, 868 (Pa. Super. 2000)).
A determination of proximate cause requires the trial court to decide
“whether the alleged negligence was so remote that as a matter of law, the
defendant cannot be held legally responsible for the subsequent harm. Id.
at 428. Put another way, the trial court must determine whether the injury
would have been foreseen by an ordinary person as the natural and probable
outcome of the act at issue. Holt v. Navarro, 932 A.2d 915, 921 (Pa.
Super. 2007).
We agree with the trial court that the lack of availability of the exterior
hoists was not a proximate cause of Ulmer’s injuries. The mere removal of
an alternative means of accomplishing a task cannot, without more,
constitute a proximate cause of any injuries sustained thereafter. While the
decision to store the elevator doors in the high-rise elevator lobby was an
actual (“but for”) cause of Ulmer’s injuries, it was not a proximate cause of
those injuries, as that inquiry requires an analysis of any negligence
occurring in the high-rise elevator lobby itself (e.g., the vertical nature of the
storage, the Correx floor covering, etc.). The use of the high-rise elevator
lobby was “one of the happenings in the series of events leading up to”
Ulmer’s injuries, but it was too remote as a matter of law to make Driscoll
legally responsible for those injuries. Accordingly, it was within the trial
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court’s province to conclude that evidence or testimony relating to the
exterior hoist was either not relevant or was more prejudicial than probative.
This Court’s decision in Novak v. Jeannette Dist. Memorial Hosp.,
600 A.2d 616 (Pa. Super. 1991), illustrates the lack of proximate causation
in this case. In Novak, a motorcyclist was killed when he was struck by a
car that was exiting from the defendant hospital’s facility. There had been
two exits from the hospital property, one centrally located and another on
the westernmost part, but the westernmost exit had been closed due to
construction. Id. at 617. The motorcyclist’s guardian contended that the
westernmost driveway was a safer exit and that the defendant hospital’s
decision to close it at the time of the accident created a hazardous condition
by requiring vehicles to use the central driveway. Id. This Court disagreed,
concluding that no proximate cause existed because to “believe that the
accident in this case would have been avoided by a second driveway, even if
the visibility from such driveway would have been superior, is to subsume
probability in speculation.” Id. at 618. Instead, we indicated that the
“manner in which the operators of the moving vehicles conducted
themselves, rather than geography, was the effective and superseding cause
of [plaintiff’s] injuries.” Id.3
3
We reject Ulmer’s insistence that Mammoccio v. 1818 Market
Partnership, 734 A.2d 23 (Pa. Super. 1999), compels a contrary result.
The Mammoccio case did not involve a finding of proximate cause based
upon the defendant’s removal of a safer alternative, but rather proximate
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Similarly, in this case, Driscoll’s removal of a “safer” alternative means
of transporting the elevator doors was not the proximate cause of injuries
sustained by Ulmer in the high-rise elevator lobby. A recovery by Ulmer
must depend upon any negligence in the high-rise elevator lobby, which is
for the jury on remand to decide. As such, we conclude that the trial court
did not err in granting this motion in limine.
For his fifth and final issue on appeal, Ulmer claims that the trial court
erred in granting Driscoll’s motion in limine which precluded Ulmer’s expert
witness, Stephen A. Estrin (“Estrin”) from testifying regarding the Correx
floor covering, including its alleged movement, structural integrity, fitness
for purpose, or use by Driscoll.4 Trial Court Order, 12/27, 2012, at 1-5.
The threshold test for the admission of expert testimony is whether
the proposed expert has some reasonable pretension to specialized
knowledge of the subject matter at issue. See, e.g., Betz v. Pneumo
Abex, LLC, 44 A.3d 27, 52 (Pa. 2012); Miller v. Brass Rail Tavern, Inc.,
664 A.2d 525, 528 (Pa. 1995). If the expert satisfies this minimal
causation where the only alternative provided (a ladder attached too closely
to a wall) was itself defective and resulted in the plaintiff’s fall and injuries.
Id. at 34-35. In the present case, Ulmer will have the burden to prove that
the conditions in the alternative actually provided (the high-rise elevator
lobby) were unsafe and caused his injuries.
4
The trial court’s order also prohibited Estrin from testifying about certain
OSHA regulations (29 C.F.R. § 1926 et seq.), and various contractual issues
in his report. Order, 12/27, 2012, at 1-5. Ulmer does not challenge these
portions of the trial court’s order on appeal, and because they have not been
preserved for appeal we will not address them herein.
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requirement, he may testify and the weight to be given to such testimony is
for the trier of fact to determine. Miller, 664 A.2d at 528; Commonwealth
v. Gonzalez, 546 A.2d 26, 31 (Pa. 1988). A witness may render an expert
opinion based on his training and experience, McDaniel v. Merck, Sharp &
Dohme, 533 A.2d 436, 440 (Pa. Super. 1987), appeal denied, 551 A.2d 215
(Pa. 1988), and formal education on the subject matter of the testimony is
not required. Reardon v. Meehan, 227 A.2d 667, 670 (Pa. 1967).
In her Rule 1925(a) opinion, Judge Rizzo, citing to Judge Di Vito’s
“painstaking analysis of Estrin’s expert report,” deferred to Judge Di Vito’s
explanation for granting Driscoll’s motion in limine, as set forth in his
December 26, 2012 order. Trial Court Opinion, 9/5/2014, at 8. In said
order, Judge Di Vito indicated that he had conducted an “exhaustive review
of Mr. Estrin’s report,” and based upon that review had concluded that no
testimony regarding Correx would be permitted because Estrin had
“performed no examination of the Correx, nor performed tests of any kind
on the material.” Trial Court Order, 12/26/2012, at 3. Judge Di Vito further
found that Estrin “offered nothing in the way of scientific support for his
conclusions and opinions” and that he was relying “solely on exquisitely non-
scientific information provided by others.” Id.
While it is not necessary to decide whether Judge Di Vito in fact
conducted a painstaking and/or exhaustive review of Estrin’s expert report,
our review of the certified record suggests that Judge Di Vito mostly adopted
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the characterization of Estrin’s report set forth in Driscoll’s motion in limine.
Therein, Driscoll argued that Estrin’s opinions that the Correx had moved
and lacked structural integrity were just speculation because he had taken
“no measurements and conducted no scientific testing of any kind,” and
instead “relies wholly on the testimony of other witnesses to draw his
conclusion.” Motion in Limine to Preclude Testimony, 12/5/2012, at ¶¶ 27,
18. In this regard, Driscoll compared Estrin’s report to that of its own
expert, Dr. Robert Cargill, whose opinion “contained scientific conclusions
regarding the coefficient of friction between the subject door and floor
covering material.” Id. ¶ 30. In Driscoll’s supporting memorandum of law,
it likewise argued that Estrin should not be allowed to offer his opinions
regarding Correx because he “took no measurements and conducted no
testing to determine how or why the subject floor covering allegedly
moved.” Memorandum of Law, 12/5/2012, at 14. Alternatively, Driscoll
requested that the trial court conduct a hearing pursuant to Frye v. U.S.,
293 U.S. 1013 (D.C. Cir. 1923) so that it could challenge Estrin’s lack of
scientific methodology supporting his opinions. Id. at 20.
As Ulmer made clear in opposing Driscoll’s motion in limine, however,
Estrin’s expert testimony related to industry standards rather than scientific
explanations for how or why the Correx moved or slid:
Driscoll mistakenly avers that [Estrin] must prove
that the floor covering moved at the time of
[Ulmer’s] injury. Untrue. Fact witnesses will offer
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testimony concerning their personal knowledge
based on what they witnessed [and] occurred at the
time of the accident. [Ulmer, Donsky and Dubeck]
will offer testimony that the floor covering material
moved, gouged, tore or slipped. The ThyssenKrupp
foreperson, [Longo], will confirm and corroborate her
knowledge that the floor moved on other occasions.
It is for the jury to decide based on that testimony
whether or not the floor covering material moved,
gouged, tore or slipped. If the jury decides that the
floor covering material did not then the jury may
disregard [Estrin’s] opinion concerning the breach of
industry standards in using that floor covering
material for a staging area for heavy materials. If
the jury finds that the floor covering material did,
then the jury may further assess [Estrin’s] expert
opinions in that regard.
Plaintiff’s Answer to the Motion in Limine, 12/6/2012, at 7 (emphasis in
original).
Indeed, a review of Estrin’s expert report reflects that he does not
offer any scientific opinion or other explanation for how or why the Correx
moved or slid.5 At trial, Estrin testified that he has expertise in construction
industry safety standards as a result of his 54 years as a union carpenter,
foreman, superintendent, general contractor/construction manager, certified
safety manager, and a provider of construction forensic services. N.T.,
1/16/2013, at 13-19. In his report, he stated that “nonstructural floor
coverings” are a known and identifiable safety risk, and that Driscoll should
have, as part of its obligation to provide a safe work environment, employed
5
The report contains a section entitled “Cause (how and why) of the
accident,” but it does not contain any scientific explanations and instead only
reviews the deposition testimony of the ThyssenKrupp employees.
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construction accident prevention measures (elimination, prevention, and
control) in connection with said floor coverings. Motion in Limine to Preclude
Testimony, 12/5/2012, Exhibit B. According to Estrin, Driscoll violated
construction industry standards by, inter alia, creating three unsafe
conditions at the worksite:
The first unsafe condition that existed at the
Comcast Center between October 18-25, 2007 was
to be found on the loading dock, in which the
exterior hoist could not be utilized by
“Thyssenkrupp” employees to move the crates
containing the elevator doors to the upper floors
were [sic] were needed, necessitating that they be
moved to the high-rise elevator lobby, at “Driscoll’s”
direction.
The second unsafe condition at the Comcast Center
on October 25, 2007 was found to exist in the high-
rise elevator lobby, the protective floor covering,
Correx, lacking structural integrity to support
“Thyssenkrupp” employees and the elevator doors
during movement to drywall cart(s) safely by virtue
of it not being the specified Correx or its equal.
The third unsafe condition that existed was that the
perimeter edges of sheets were not taped,
permitting the sheets to slide, move, when the
elevator doors were being manually transferred to
the drywall cart.
Id.
Testimony regarding the first unsafe condition would violate the trial
court’s grant of the motion in limine relating to alternative means of
transporting the elevator doors, which in response to Ulmer’s fourth issue on
appeal we determine was not entered in error. The trial court had no basis,
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however, to exercise its discretion to prohibit Estrin from testifying regarding
the second and third unsafe conditions. On remand, Estrin should be
permitted to offer his opinions, to the extent consistent with his expert
report and based upon his construction industry experience and knowledge,
as to whether Driscoll breached industry standards relating to the use of
Correx in the high-rise elevator lobby as a staging area for the storage and
transport of elevator doors. Estrin clearly satisfies the minimal requirement
of possessing a “reasonable pretension to specialized knowledge of the
subject matter at issue,” and his expert report is sufficiently detailed to
provide an understanding of the nature of his possible testimony and the
reasons for his opinions. Driscoll’s contentions regarding Estrin’s apparent
lack of measurements, inspections, or testing of Correx in connection with
his opinions goes to the weight the jury should place on his testimony, but
do not constitute grounds for prohibiting its introduction.
For these reasons, we reverse and remand for a new trial. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2015
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