Case Information
PA Super 240 IN THE SUPERIOR COURT OF JOHN NOBLES
PENNSYLVANIA Appellant
v.
STAPLES, INC., STAPLES THE OFFICE
SUPERSTORE EAST, STAPLES THE
OFFICE SUPERSTORE, LLC
Appellees No. EDA 2015 Appeal from the Order Dated August 18, 2015 the Court of Common Pleas Philadelphia County
Civil Division at No(s): March Term, 2013, No. 2406
BEFORE: BOWES, J., OTT, J., and SOLANO, J. FILED NOVEMBER 08, 2016
OPINION BY SOLANO, J.: Appellant John Nobles appeals from the order entered August 18, 2015, granting summary favor of Staples, Inc.; Staples Office Superstore East; and Staples the Office Superstore, LLC (collectively, "Staples "), his action recover damages personal injuries. We affirm.
Nobles was corporal Philadelphia Police Department. On April 5, 2011, his office desk when the chair he was sitting snapped at the base and fell to floor. Nobles hit his head he fell sustained injuries neck, back, right shoulder. Trial Court Opinion,
Ten minutes the incident, photographed the chair. The base of the chair still upright, but the rest of the chair the floor. A few days later, another police officer disposed of the chair, and, result, the chair was not available inspection during this litigation. See Trial Court Opinion, 2/9/16, at 2. chair purchased 2008, but there no documentation that
memorializes the purchase. Trial Court Opinion, 2/9/16, at 2. Nobles claims the chair purchased from Staples, Nobles' Brief, at 6, 8, but Staples denies that contention claims that been able to verify that it sold chair of the type at issue. See Trial Court Opinion, 2/9/16, 8. There documentation regarding the chair's specifications its history over three years between its purchase the incident. 2. March 2013, filed this personal injury action against Staples, contending that the chair had been purchased from Staples defects the chair caused its collapse. Trial Court Opinion, 1, 6.
On March 31, 2014, Staples moved for summary ground Nobles was unable prove the chair been purchased from Staples. On May 30, 2014,1 written order, the Honorable Annette M. Rizzo denied Staples' motion without prejudice, "as the Motion was filed prior expiration of the discovery period."
On November 24, 2014, Staples again moved for summary judgment, repeating the same ground its first motion. On January 20, 2015, order entered the docket June 2,
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the Honorable Frederica Massiah- Jackson entered order denying that second summary motion, without further comment.
On April 22, 2015, Staples filed two motions limine. First, Staples moved for "an order from court barring [Nobles], [Nobles'] expert, or any other witnesses from testifying they were told the chair was purchased from Staples." Second, Staples moved to bar Nobles' liability expert, Keith A. Bergman, P.E. Nobles filed responses in opposition both motions on May 4, 2015.
On May 18, 2015, after jury selection but before trial, Honorable Mary D. Colins heard argument the two motions limine granted both. N.T., 5/18/15, at 11, 15, 20 -21. light of those decisions, Judge Colins then granted Staples' motion to dismiss the action. 22. The court's dismissal recorded the docket entry a "non- suit," but, in a Rule 1925(a) opinion, the trial court characterized its decision as equivalent entry of summary judgment. Trial Court Opinion, 4.
On September 11, 2015, filed a notice of appeal, now presents the following issues for our review:
1. May trial court grant a defendant's motion for non -suit eve of where the plaintiff had opportunity present evidence only pre -trial motions had been ruled upon? Is it violation the coordinate jurisdiction rule for trial grant motion non -suit, deemed motion
for summary judgment, the court already denied for summary judgment? -3
3. May trial court grant verbal motion for non -suit the eve of trial when witnesses are prepared to testify the dispositive issue within the motion non -suit? Did the lower court err barring trial testimony of
[Nobles'] expert, Keith Bergman, P.E., regarding the cause the chair's failure ?[2]
5. May trial court bar expert testimony submitted under malfunction theory of liability where is properly based on fact essential plaintiff's case? Nobles' Brief, at 4 -5 ¶¶ [1] -5. We reordered the sequence which we address these issues. Exclusion of Bergman's Testimony
We first consider Nobles' fourth fifth issues, asserts trial court's exclusion of Mr. testimony erroneous. Nobles' Brief, at [5] ¶¶ -5.3 admission of expert testimony matter committed the discretion of the trial will not disturbed absent an abuse discretion. Commonwealth Walker, A.3d 766, 772 2014). An abuse of discretion "is not merely error of judgment, but if reaching conclusion the law overridden or misapplied, or the exercised manifestly unreasonable, the result of partiality, Nobles does appeal court's grant of Staples' other in limine, which barred hearsay any concerning where the chair purchased. Although lists these issues separately, we deem them to raise same issue regarding the admissibility Nobles' proffered expert.
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prejudice, bias or ill -will, as shown by or record, discretion abused." at 772 -73 (citation omitted).
According to Mr. Bergman's expert report, would have testified that "did not cause this incident to occur" and that "failure of the connection of the bell and post column of the incident chair caused this incident to occur." Bergman Engineering Report, 11/17/14, (attached Exhibit "I" Nobles' Response Opposition Staples' Motion for Summary Judgment). its opinion, the trial court thoroughly reviewed this proffer and
concluded that Mr. Bergman's report was based "on little more than guess conjecture" and was insufficient meet the standards for expert evidence. Trial Court Opinion, 6 -9. The court explained: It It
[Mr. Bergman's] report notable for what it does not do. does not state, even general terms, what the defect is. does not state or even speculate about how the defect caused It does describe the [Business Institutional break. Furniture Manufacturers Association's] X5.1 -2002 "standard "[, but it does not] state how construction materials used would not met standard. He says only the purpose of the standard to ensure chair's ability withstand certain maximum impacts. report also cites facts the record to support conclusion the chair defective when it left the seller 2008, necessary element of the cause action. only physical evidence was photo [that Nobles took of the chair broke,] Staples representative testified this photo did not allow her to confirm either type or model of the chair; the chair otherwise identified. Pages -14, deposition transcript Jaclyn Smith, Staples' chair buyer, attached Exhibit F defendant's 11/26/2014 for summary judgment. opinion, then, uninformed by any information about the chair's manufacture, specifications, materials, features, warnings, or -5-
history. There no evidence of this chair's structure, particularly at the joint where the break occurred. No evidence available that would have enabled examination or testing of an exemplar. Bergman cited no he eliminated all other possible causes of the break the chair. In short, there no defect evidence, circumstantial otherwise, support an opinion.
Nevertheless, Bergman opines since the chair broke, it was defective. Without saying why or how, presses the inference that that since the chair broke, it must have been defective [in] its weight bearing properties. This is circular reasoning that rests factual foundation insufficient support expert analysis. At best, it ordinary res ipsa loquitur dressed up expert opinion.
Trial Court Opinion, -9. The trial court therefore concluded that it "properly barred [Mr.] testimony because lacked foundation."
We agree. Pennsylvania Rule Evidence 702 "permits expert testimony subjects concerning 'knowledge beyond possessed by layperson.' It the job of the trial court to 'assess expert's testimony to determine whether expert's testimony reflects the application of expertise or strays into matters of common knowledge. ' Snizavich v. Rohm & Haas Co., A.3d 191, Super. 2013) (citations to quoted authorities omitted). We explained:
Admissible expert testimony reflects the application expertise requires more than simply having expert offer lay opinion. "Testimony does not become scientific knowledge merely because it was proffered by scientist." Likewise, expert testimony must be "based more than mere personal belief," "must supported by reference facts, or empirical data."
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Id. at (citations to quoted authorities omitted). Accordingly, we have stated the following test to distinguish between admissible expert testimony and inadmissible lay testimony by an expert: exercise of scientific expertise requires inclusion of scientific
authority and application of the authority the specific facts at hand. Thus, the minimal threshold that expert testimony must meet qualify as an expert opinion rather than merely an opinion expressed by an expert, this: the proffered expert testimony must point to, rely or cite some scientific authority - whether facts, empirical studies, or expert's own research - expert has applied the facts at hand and which supports the expert's ultimate conclusion. When an expert opinion fails to include such authority, trial court no choice but to conclude expert opinion reflects nothing more than mere personal belief.
In Snizavich, Dr. Thomas Milby proffered evidence the decedent, whose estate brought the suit, developed brain cancer as result of exposure chemicals while working at chemical facility. forming his opinion, the doctor "reviewed nine documents, eight of which dealt with Decedent's medical history, work history, work conditions," the ninth of which an inconclusive epidemiological report about the statistical occurrence of brain cancer at the facility. He then "concluded, based on nine documents reviewed well years of expertise in epidemiology, toxicology occupational medicine Decedent's brain cancer been caused by exposure unknown chemical chemicals, while working at [the facility]." A.3d 197. This Court held inadmissible, explaining: 7
Missing from Dr. Milby's expert report any scientific authority - any facts, empirical data - supports his . Milby Report may, therefore, aptly conclusion. . . . based "entirely subjective assessments described . . both cause and effect," it does include any "research, conducted by [Dr. Milby] or anyone else, support [his] assertion[] causation." (quoting Checchio Frankford Hosp. - Torresdale Div., 717 A.2d
1058, 1062 Super. 1998) (excluding proffered expert testimony about cause of neurological dysfunction because based on subjective beliefs, rather than scientific evidence)).
Here, similarly, Mr. report provides reliable scientific basis for the views propounds. first eight pages twelve -page report merely reiterate information found elsewhere the record, including list of the materials submitted Mr. Bergman for review, summaries of the depositions, and photograph of the chair. See Bergman Engineering Report at -8. Another page of the report sets forth history of development furniture regulations United States. See id. 9. On page 10, Mr. Bergman describes the X5.1 -2002 standard of the Business Institutional Furniture Manufacturers Association ( "BIFMA "), which, he says, "was intended provide manufacturers, specifiers, users with common basis evaluating the safety, durability, structural adequacy of general -purpose office chairs." Mr. Bergman states the standard employs "Drop Test," test bags weighing to 300 pounds are dropped the chair's seat from height of six inches to determine whether
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the chair can "withstand heavy abusive impact forces the seat." Id. at 10. Mr. Bergman continues:
The failure of the incident chair failed to comply with BIFMA standard, resulting this incident occurring. structural components failed withstand weight John Nobles sitting the chair. Had the incident chair complied with BIFMA standard, this incident would been avoided. remaining two pages Mr. Bergman's report summarize his
conclusions, state "[t]his report may supplemented if additional information becomes available," contain Mr. Bergman's signature. Id. at -12.
As trial court stated Staples elaborates its brief, there is nothing Mr. report to show he applied any scientific expertise to reach conclusion the chair defective. Mr. Bergman did not inspect the chair at issue; he merely looked photograph taken the chair broke. Nor did examine exemplar or any similar chair. there the chair's structure, manufacture, As specifications, materials, or features, it impossible identify such similar chair. Mr. Bergman did not test subject chair or any other chair. Thus, observed, Trial Court Opinion, 8, Mr. Bergman does state, "even general terms, what the defect is" or how reporting only (on the chair broke, basis of the post- accident
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photograph) that the chair broke at "the connection of the bell post column." Bergman Engineering Report at 4.4
Mr. Bergman does reference the BIFMA X5.1 -2002 standard, but he provides no facts, studies, or independent research to show that the chair failed to meet that standard when it was made, which was at least three years before it broke. Nobles argues that the mere fact that the chair broke after three years suggests that it was not as durable as the X5.1 -2002 standard requires, but that argument says no more than if a chair breaks three years, it must be defective. court aptly characterized such reasoning as "res ipsa loquitur dressed up as expert opinion." Trial Court Opinion,
Nobles responds that, although "there direct to what caused the chair's malfunction," Mr. Bergman's expert opinion "was still Mr. failure state how the chair was defective how it broke presents a stark contrast between this case and the main decision which relies, Duquesne Light Co. v. Woodland Hills Sch. Dist., 700 Duquesne, school built hilltop A.2d 1038 Cmwlth. 1997). was damaged by landslide. A proposed geotechnical expert studied the landslide opined it was caused by failure water line built into embankment created support school structure, as well "by absence proper embankment toe key." 700 A.2d at 1047. Although the expert unable to explain - therefore did not seek to testify about - why water line failed (the line been destroyed and unavailable for study by expert after the landslide) the held the opinion rupture caused the landslide should have been allowed. at 1047 -48. Here, contrast Duquesne, Mr. Bergman did study the chair or opine what caused break. Permitting his Duquesne expert to would equivalent allowing speculate about what caused water line rupture.
based on proper factual foundation as he was able to study photograph of the chair it failed and form an opinion reason failure based upon specialized knowledge of recognized industry standards." Nobles' Brief, at 29. This Court's decisions Snizavich and Checchio make clear, however, such knowledge and references are not sufficient support an expert opinion where the expert fails to "point to, rely or cite some scientific authority whether facts, empirical studies, the expert's own research - expert applied facts at hand and supports the expert's ultimate conclusion." Snizavich, A.3d at 197.
In sum, as trial court held, Mr. Bergman's would provide no more than an "inference since the chair broke, must been defective its weight bearing properties." Trial Court Opinion, Such inference no more than speculation - "subjective assessment[] cause effect," Snizavich, A.3d - and, Snizavich, it insufficient satisfy requirements for expert evidence. trial court's analysis of this issue was methodical, well- reasoned, "manifestly unreasonable." Walker, A.3d at 772. As admission of expert testimony committed the discretion of the trial court, we perceive abuse discretion the exclusion of Mr. testimony, we affirm court's decision with respect Mr. Bergman.
The Procedural Propriety of Dismissal
The following colloquy occurred at time trial court granted Staples' motion limine exclude Mr. testimony: I am going to grant your motion. I believe the
THE COURT: foundation is exceedingly weak, not supportive of expert testimony, for all reasons counsel has stated.
So I am going to grant the motion and exclude the Bergman this case.
That leaves you with basically products liability which you plead against Staples expert.
[COUNSEL FOR NOBLES]: I think, effect, the Court put us out of court because under the malfunction theory I still have to some expert testimony indicate the absence. So, in effect, you have put us out of the courtroom. I think so.
THE COURT: N.T., at -21. trial court then asked whether Staples any further motion. Counsel for Staples responded, "We would like to file motion dismiss case. There going to be no going to able to support the case." Id. 21. Counsel for made no argument opposition this motion dismiss, but stated only, "I take an exception the record, Your Honor." Id. 22. The trial court then stated, "The to dismiss granted," adjourned the proceedings. trial worksheet the docket then recorded the dismissal granting motion for "non- suit."
In the first issue listed brief, Nobles contends that the trial court erred granting the motion to dismiss because it procedurally improper to grant a "non- suit" when had yet presented evidence only pre -trial motions been decided.5 We disagree.
As the trial observed, a motion to dispose a case after a jury empaneled but before evidence adduced may be treated under a variety of procedural devices, including a motion for summary judgment or for judgment the pleadings. Trial Court Opinion, 4. For example, DiGregorio v. Keystone Health Plan E., 840 A.2d 361, 366 -67 (Pa. Super. 2003), the defendant made motion to dismiss the day a jury empaneled but before the presentation of any evidence. trial court granted the motion dismissed On appeal, the parties disputed which procedural rules applied court's disposition. We resolved issue as follows:
Since trial court disposed of the motion chambers and since jury heard evidence, we cannot construe the trial court's disposition verdict, discharge due to the jury's failure agree, nonsuit. Rather, we conclude the purported motion dismiss either motion judgment pleadings or for summary judgment. See Bostick [v. Schall's Brakes and Repairs, Inc., 725 A.2d 1232 Super. 1999)]; cf. Lewis United Hospitals, Inc., Pa. 626, 692 A.2d 1055 (1997) (improper entry of nonsuit prior plaintiff's treated the pleadings or summary See Pa.R.C.P. 230.1(a)(1) (a nonsuit may entered "if, close plaintiff's case on liability, plaintiff failed to establish right relief" (emphasis added)). judgment which did not require post -trial motions); Wujcik v. Yorktowne Dental Associates, Inc., 701 A.2d 581 (Pa. Super. 1997) (noting trial should have treated objection to plaintiff's offer of proof before trial as summary or motion for judgment pleadings).
Id. at -66. Here, although the trial court's granting Staples' "motion dismiss" docketed a "non- suit," trial court treated as a grant of summary judgment, citing DiGregorio. Trial Court Opinion, situation presented here not uncommon. We previously commented "the murky quagmire often created when a pretrial ruling effectively determines case, the parties decide not go through fruitless effort expense of putting a trial when the result already been determined." Rivera v. Home Depot USA, Inc., 832 A.2d 487, 489 Super. 2003). We observed Rivera:
One common example [of this situation] when a pretrial decided against party, such motion preclude expert under Frye[6] for failure to include critical factor expert report. instance, the parties want to save time expense trial but also want preserve the issue appeal. This current case presents precisely the same situation was
discussed Rivera, we approved of the court's ending of the this same point, through what we deemed to summary Frye U.S., F. 1013 (D.C. Cir. 1923). at 489 -90;' see also Liles Balmer, 653 A.2d judgment motion. 1237, 1240 (Pa. Super. 1994) (permitting nonsuit preclusion of key because plaintiff "had no remaining competent and relevant to present the issues of negligence causation ... [and her] case essentially complete prior to the entry of nonsuit "), appeal denied, 663 A.2d 692 1995). We perceive no error in the trial court's handling of the this way.8 a reply brief, Nobles maintains that, although a court may grant
motion for summary judgment day of trial, it may not do so if entertaining the motion would cause undue prejudice non -moving party. standard for determining propriety an eleventh -hour grant summary is whether non -moving party notice that he must respond to legal issue which the motion based and was afforded a full fair opportunity argue position. Cagnoli v. [7] We observed Rivera preferred procedure this situation for the parties to agree to treat the motion dismissal motion for summary judgment, but we did not say such an agreement on terminology mandatory. See A.2d at 490. Here, record shows Nobles agreed dismissal preordained once Staples' motion in limine granted, therefore made argument opposition Instead, Nobles merely recorded an "exception" that motion to dismiss. would permit right of appeal. In this situation, did err in treating its dismissal order entry of summary judgment. Furthermore, if this appeal actually stemmed from nonsuit, we would dismiss it, because failed file post -trial under
Pa.R.C.P. 237.1(c). Bonnell, 611 A.2d 1194, 1196 (Pa. 1992); Phi lips v. Lock, 86 A.3d 906, 914 -15 (Pa. Super. 2014); see also Pa.R.C.P. 1035.3(e)(1) ( "Nothing this rule is intended to prohibit a court, at any time prior to trial, from ruling upon a motion for summary judgment without written responses or briefs if party prejudiced. A party prejudiced if she is not given full fair opportunity supplement the record and to oppose the motion "). Where the non -moving party sufficient notice of the issues raised by summary judgment motion full opportunity respond, granting of summary judgment on motion made on day of trial reversible error. Phillips, A.3d 911 -15 (affirming grant of motion for summary judgment made by defendant the morning of trial).
According the record, Nobles received Staples' motions limine over three weeks before trial. These filings included precise legal issues, along with law and facts, which summary judgment ultimately was granted; thus, ample notice. See Robertson Port Auth. Allegheny County, A.3d 980, -84 Cmwlth. 2016) (plaintiff received notice of precise legal issue upon summary judgment later based motion limine filed about week before an oral motion for summary day of trial, these circumstances provided "ample notice ").
Additionally, Nobles was given opportunity argue his position immediately after decided exclude expert's testimony. However, when presented with that opportunity, Nobles' counsel stated: "I think, in effect, Court put us out of court because under the malfunction theory I still have to have some expert testimony to indicate the absence. So, effect, you have put us out of the courtroom." N.T., 21 (emphasis added). Hence, Nobles' own counsel essentially acknowledged that summary judgment appropriate.9 trial court therefore did not err dismissing the case. Coordinate Jurisdiction Rule second listed issue, Nobles argues trial court's grant of summary judgment violated the coordinate jurisdiction rule. Nobles' Brief, 4 ¶ 2. "[T]he coordinate jurisdiction rule ... provides that judges sitting same court same should not overrule each other's decisions." Commonwealth v. Daniels, 104 A.3d 267, 278 (Pa. 2014). However, "a court may reconsider summary motion, already decided by colleague of the same when the motion contains new evidence or facts record." Elec. Lab. Supply Co. v. Cullen, 712 A.2d 304, 308 (Pa. Super. 1998); accord Bersani by Bersani Sch. Dist. Phila., A.2d 151, 153 Super. 1982) ( "The action of the second lower court judge considering second for summary judgment, Furthermore, if Nobles' counsel believed he did not sufficient opportunity respond Staples moved dismiss, he could have requested trial court allow the parties submit briefs before ruling motion, but did do so. even though the prior motion had been denied, justified by the large amount of new information added to record the time period between the two motions ").
In the current action, once Judge Colins granted Staples' motions in limine, the status of the changed materially. Therefore, the basis upon which Judge Colins granted the final motion for summary judgment was very different from bases upon which Judge Rizzo and Judge Massiah- Jackson relied when they denied Staples' first second motions summary several months earlier. Once Judge Colins held Nobles' expert would not allowed to testify, it became clear there no viable way Nobles could recover - Nobles' counsel himself admitted when told Judge Colins she "put us out court." See Trial Court Opinion, -6. Accordingly, it appropriate for Judge Colins to then grant Staples' motion dismiss case, even if that equivalent third motion for summary judgment. In doing so, trial court did not violate the coordinate jurisdiction rule. Substantive Propriety of the Dismissal remaining issue raised by Nobles erred when granted Staples' motion to dismiss because Nobles' fact witnesses were prepared testify lack of any misuse of the chair Nobles' part. Nobles' Brief, ¶ trial court treated Staples' motion to dismiss as a motion for
summary judgment. Our standard of review with respect to a trial court's decision to grant or to deny a for summary judgment is as follows:
A reviewing may disturb order of the trial court only where it is established court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating trial court's decision to enter summary judgment, we focus legal standard articulated the summary judgment rule. Pa.R.C.P. 1035.2. rule states that where there is genuine issue of material fact moving party entitled to relief as matter of law, summary judgment may be entered. Where the non -moving party bears the burden of proof on an issue, may not merely rely on his pleadings or answers order survive summary judgment. Failure a non -moving party to adduce sufficient on an issue essential and on which it bears the burden of proof establishes the entitlement of the moving party to judgment a matter law. Lastly, we will view the record the light most favorable non -moving party, and all doubts the existence of genuine issue of material fact must be resolved against the moving party.
WFIC, LLC v. Labarre, -- A.3d - -, PA Super 209 (2016). Accord Gilbert Synagro Cent., LLC, A.3d 1, 10 (Pa. 2015) (the scope of review grant of summary plenary; the court's order will reversed only where it established court committed error of law clearly abused its discretion). contends his case based malfunction theory
liability, Nobles' Brief, at 13, permits "a plaintiff prove defect product with evidence of the occurrence of malfunction with evidence eliminating abnormal use or reasonable, secondary causes for malfunction." Beard v. Johnson & Johnson, Inc., A.3d 823, 825 (Pa. 2012). Nobles' witnesses were prepared to testify second of these evidentiary requirements (elimination of other causes), but the exclusion of Nobles' expert made it impossible Nobles to prove the first requirement - the occurrence of a "malfunction.i10 Thus, trial court did not err in dismissing the case absence of such required proof.
Nobles appears to concede much. His argument this issue his brief relates entirely contention that, if Mr. expert not been excluded, he would have been able to establish prima facie defect survive summary judgment. See Nobles' Brief, at -34; Nobles' Reply Brief, at 11 -12. Nobles does not contend that he could survive summary once Bergman Engineering Report excluded, and, fact, he made contrary admission at the time that trial court granted dismissal. Accordingly, the court's grant Staples' motion dismiss, which it treated for summary judgment, proper.
Judgment affirmed. We held manufacturing defect sometimes can proven by circumstantial without expert testimony. See Wiggins Synthes (U.S.A.), A.3d 9, 15 (Pa. Super. 2011). trial court held Nobles could not satisfy any of the non -expert ways of proving malfunction or defect. See Trial Court Opinion, 11. Although challenges some of the trial court's conclusions regarding the evidence he could present, Nobles does argue could have proven his case without expert evidence.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 11/8/2016
