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Voeltz v. Bridge Charleston Investments E, LLC

United States District Court, D. South Carolina, Charleston Division

April 12, 2019

Corinne Voeltz, Plaintiff,
v.
Bridge Charleston Investments E, LLC, et al., Defendants. Bridge Charleston Investments E, LLC, et al., Third-Party Plaintiffs,
v.
Waupaca Elevator Company, Inc., et al., Third-Party Defendants.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the Court on three motions to exclude experts: Defendant Coastal Elevators & Lifts, LLC Motion in Limine to Exclude the Expert Testimony of John Koshak (Dkt. No. 136), Defendant Waupaca Elevator Company, Inc.'s Motion to Exclude certain testimony of John Koshak (Dkt. No. 155), and Defendant Easterlin Company's Motion in Limine to Exclude Certain Expert Testimony by Joseph Stabler (Dkt. No. 159). For the reasons set forth below, the Court grants in part and denies in part the motions.

         I. Background

         On April 4, 2015, Plaintiff Corinne Voeltz rented a condominium at 113 East Arctic Avenue, Unit C in Folly Beach, South Carolina (the "property"). (Dkt. No. 148-2 at 8 - 9.) That night, Plaintiff was on the first floor (one floor up from the ground floor) of the property and opened an access door to the elevator. (Id. at 22-23, 34.) Plaintiff then stepped through the door and fell down the elevator shaft because the elevator was not at the floor. (Id.) Plaintiff filed suit against Defendants on August 30, 2016. (Dkt. No. 1.) The case is set for trial on April 22, 2019. (Dkt. No. 146.) The Parties have filed various motions in limine in preparation for trial, and the motions regarding expert testimony are addressed here. (Dkt. Nos. 136, 155, 159.)

         II. Legal Standard

         Under Rules 104(a) and 702 of the Federal Rules of Evidence, "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). Thus, even if a witness is "qualified as an expert by knowledge, skill, experience, training or education," the trial court must ensure that (1) "the testimony is the product of reliable principles and methods," that (2) "the expert has reliably applied the principles and methods to the facts of the case," and (3) that the "testimony is based on sufficient facts or data." Fed.R.Evid. 702(b) - (d). "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid," Daubert, 509 U.S. at 592 - 93, and whether the expert has "faithfully appl[ied] the methodology to facts," Roche v. Lincoln Prop. Co., 175 Fed.Appx. 597, 602 (4th Cir. 2006).

         Factors to be considered include "whether a theory or technique...can be (and has been) tested," "whether the theory or technique has been subjected to peer review and publication," the "known or potential rate of error," the "existence and maintenance of standards controlling the technique's operation," and whether the theory or technique has garnered "general acceptance." Daubert, 509 U.S. at 593 - 94. However, these factors are neither definitive nor exhaustive, United States v. Fultz, 591 Fed.Appx. 226, 227 (4th Cir. 2015), cert, denied, 135 S.Ct. 2370 (2015), and "merely illustrate[] the types of factors that will bear on the inquiry." United States v. Hassan, 742 F.3d 104, 130 (4th Cir. 2014). This is especially true as the Daubert standard applies to non-scientific expert testimony as well. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

         III. Discussion

         A. Defendant Coastal's Motion to Exclude John Koshak

         Defendant Coastal Elevators & Lifts, LLC ("Coastal") moves to exclude the testimony of Plaintiffs expert, John Koshak, regarding Coastal's repair of the elevator system at issue and the applicable standard of care. (Dkt. No. 136 at 3.) Coastal does not contest Koshak's ability to opine on the presence of a design defect on an elevator. (Id. at 6.) However, Coastal argues that Koshak cannot opine on repairs of residential elevators since he lacks the requisite qualifications in residential elevators or for elevator repair and maintenance for this equipment, he does not have data supporting his analysis, and his opinions are impermissible legal opinions. (Id.) Plaintiff opposes the motion. (Dkt. No. 141.)

         Coastal initially argues that Koshak is not qualified to provide expert testimony regarding residential elevator repair and maintenance. John Koshak has worked in the elevator industry since 1977. (Dkt. No. 136-2.) Koshak started as an electrician, and over his four decades in the industry served as an elevator adjuster, serviceman, consultant, vice president of technical support, a research engineer, elevator consultant and a director of codes and standards for Thyssenkrupp Elevator. (Id.) In general, Koshak's qualifications on elevator design and service are manifest.

         Coastal instead focuses on Koshak's alleged lack of qualifications to opine on residential elevator repair, arguing that while Koshak has extensive commercial elevator experience, he has no qualifications regarding residential elevators or residential elevator maintenance. (Dkt. No. 136 at 7 - 11.) Coastal however ignores experience that Koshak has in residential elevators. Koshak, in his deposition, testified that while serving as an elevator adjuster and serviceperson for Amtech from 1991 to 1996 he would "occasionally" go to a home to fix a residential elevator. (Dkt. No. 136-4 at 6.) Further, Koshak testified that he attended "many" meetings at the American Society of Mechanical Engineers ("ASME") regarding residential elevators and has "written extensively on residential issues." (Id. at 9.) He has also given presentations on the risks involved with residential elevators, such as "Hazards on Private Residence Elevator's." (Dkt. No. 136-2 at 6.) Koshak also is a Certified Elevator Inspector through the National Association of Elevator Safety Authorities since 2002. (Id. at 10.) Further, in addition to these more than sufficient residential elevator qualifications, Coastal is impermissibly disaggregating these qualifications from Koshak's demonstrated extensive qualification in the elevator field. Indeed, in addition to his work in the elevator industry since 1977, Koshak serves on the Standards Committee of the American Society of Mechanical Engineers, which approves the codes and standards applicable to commercial and residential elevators. (Id. at 9.)

         Coastal's arguments regarding Koshak not having requisite experience in maintenance and repair is again misplaced. Koshak's work history demonstrates that from 1977 though 1996 he worked in various roles as an electrician, elevator adjuster, and serviceperson, all of which were involved with installing, providing maintenance or repairing elevators. (Dkt. No. 136-2 at 2 - 3.) Further, again, as above, Koshak testified that at least some of this work involved limited maintenance on residential elevators. (Dkt. No. 136-4 at 6.) Finally, Coastal argues that Koshak does not have relevant experience and has never testified regarding a Waupaca elevator or EMI-3. However, again, Koshak testified that he has at least some litigation experience regarding either the same or a similar locking mechanism. (Dkt. No. 136-4 at 11.) Further, Koshak has extensive experience in elevator safety devices and codes, which are applicable here. (Dkt. No. 136-2.)

         Koshak's opinions here are clearly based on knowledge, skill, experience, training and education, as required by Rule 702 of the Federal Rules of Evidence. Coastal relies extensively on Shreve v. Sears, Roebuck & Co., 166 F.Supp.2d 378 (D. Md. 2001), but Shreve recognized that "the fit between an expert's specialized knowledge and experience and the issues before the court need not be exact," and instead the expert's opinion is helpful to the trier of fact "only to the extent the expert draws on some special skill, knowledge or experience to formulate that opinion; the opinion must be an expert opinion (that is, an opinion informed by the witness' expertise) rather than simply an opinion broached by a purported expert." Id. at 392 - 393 (citations omitted). Here, Koshak clearly meets this standard, as his extensive specialized knowledge and experience is in elevators, including experience in residential elevators and safety codes applicable to residential elevators, and that specialized skill, knowledge and experience informs his opinions on Coastal's repairs and Waupaca's EMI-3 lock.[1] Koshak is therefore ...


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