Defense Digest

When an Expert Cannot Be an Expert

A recent decision of the Trumbull County Court of Appeals in Ohio will assist defense practitioners in slip and fall cases throughout the state. In Estate of Mealy v. Sudheendra, 2004-Ohio-3505, the Trumbull County Court of Appeals held that expert testimony without proper foundation in a slip and fall case cannot be used as evidence to defeat a motion for summary judgment.

In many slip and fall cases, the plaintiff can identify neither the reason nor the cause of the slip and fall. In Ohio, the plaintiff's failure to identify either the reason or the cause of a slip and fall is fatal to his case. Many courts grant summary judgment where the plaintiff can provide no evidence, either by way of testimony or otherwise, for the reason why the plaintiff fell. When defense practitioners realize that the plaintiff has failed to identify the reason or cause of a fall, they quickly file a motion for summary judgment. In addition, many defense practitioners prepare and serve requests for admission based upon the testimony of the plaintiff in failing to identify the reason or cause for a slip and fall.

The burden then shifts to the plaintiff to present admissible evidence to defeat a motion for summary judgment. Since the plaintiff cannot identify why he fell, or the cause of why he fell, plaintiff’s counsel is left to look elsewhere to create a genuine issue of material fact.

In many instances, plaintiff’s counsel seeks the services of a so-called expert. The expert normally is retained to identify problems on the premises that fail to meet applicable building codes or standards, and then the expert goes on to opine that because of these failures, the plaintiff fell. This is obviously an attempt by plaintiff’s counsel to create a genuine issue of material fact, despite the plaintiff's failure to identify a root cause for the fall.

Courts confronted with this situation could easily determine that the presentation of expert testimony, even testimony lacking any real connection to a plaintiff’s testimony and circumstances, creates, at the very least, a genuine issue of material fact for a jury to decide.

However, the Trumbull County Court of Appeals clearly put the brakes on these last-minute attempts to create genuine issues of material fact through the use of so-called expert testimony.

In Mealy, the plaintiff had an brief appointment with the defendant. The plaintiff fell while his son unlocked the passenger side door of his car. The plaintiff had suffered a broken hip and subsequently died, and his son later sued Dr. Sudheendra. The son testified that he did not see his father fall and did not know the cause of the fall.

Dr. Sudheendra moved for summary judgment, and the plaintiff responded. The plaintiff submitted the affidavit of an architect, claiming that a properly maintained curb could have prevented the fall. The architect inspected the property and determined that there was a defect in the area in which the decedent fell. The trial court entered summary judgment in favor of Dr. Sudheendra.

The Court of Appeals affirmed the trial court’s judgment. The trial court stated that:

The court further stated that the architect could not opine as to the cause of the fall. The court stated that:

The court indicated that the decedent’s fall can be neither verified nor falsified through expert opinion.

Thus, the Mealy case can be used by defense practitioners for a variety of purposes. First and foremost, the Mealy case can be used to defeat a motion for summary judgment where expert testimony bears no relationship whatsoever to the testimony of the plaintiff in a slip and fall case, especially where the plaintiff cannot identify why he fell.

Second, the Mealy case can be used in defending cases on appeal as authority for the proposition that expert testimony must meet the necessary standards of Civil Rule 56 in order to serve as admissible evidence in responding to a motion for summary judgment.

Third, the defense practitioner can use this case in an effort to exclude expert testimony in response to a motion for summary judgment. The defense practitioner should quickly move to strike any attempt to introduce non-foundational expert evidence so that the trial court does not rely on the expert report or affidavit in ruling on the motion for summary judgment.

Fourth, defense practitioners can also use this case in excluding expert evidence in preparation for trial should the trial court deny the motion for summary judgment. Surely, the very same reasons for foundation and admissibility apply to preparing a case for trial and for pretrial motions in limine.

The Mealy case can assist defense practitioners in attacking so-called expert testimony, both in terms of its very admissibility in responding to motions for summary judgment and in its very foundations in establishing expert testimony.

*Sam is a shareholder and the managing attorney of our Akron, Ohio office. He can be reached at (330) 255-0039 or scasolari@mdwcg.com.