Pierino Perciballi and Brigida R. Perciballi v. Mountain Creek Resort Inc.; Mountain Creek Management, LLC; Great Gorge; Snow Creek, LLC d/b/a Mountain Creek Resort, Inc.; Snow Operating, LLC; Snow Partners, LLC; John Doe Ski Resort Operators (1-5); John Doe Ski Resort Maintenance Companies (1-5); John Doe Ski Resort Inspection and Safety Companies (1-5)

Summary

The United States District Court for the District of New Jersey addressed defendants' motion to preclude plaintiffs' skiing-accident expert, Richard Penniman, and to impose discovery sanctions based on his unannounced inspection of the resort. The court held that the inspection did not violate Rule 34 or warrant sanctions and that Penniman's opinions were generally sufficiently reliable under Rule 702 and Daubert. The court excluded only opinions asserting that shadows caused the accident, while permitting testimony about fencing visibility, shadows generally, and ski-course design standards.

Holdings

1. An inspection of premises open to the public does not violate Federal Rule of Civil Procedure 34(a)(2) when the inspecting expert has permission to enter, does not exceed the ordinary parameters of that permission, and does not pose a greater articulable danger or burden than that expected of a typical visitor. Penniman's inspection did not constitute a discovery violation, and exclusion was unwarranted in any event.
2. Penniman's opinions concerning the relative safety of fencing colors, the effect of shadows on visibility generally, ski-trail organization, learning-area placement, and skier behavior were sufficiently reliable and supported by an adequate factual foundation to be admissible under Rule 702, subject to cross-examination and challenges to weight.
3. Penniman may testify generally about how shadows can affect the visibility of hazards and may offer opinions grounded in his site inspection, but he may not testify that shadows caused Perciballi's accident or conclusively caused him to fail to see the fencing.

Questions Presented

1. Whether Penniman's unannounced inspection of the publicly accessible ski resort violated Federal Rule of Civil Procedure 34 or otherwise warranted exclusion of his testimony and report as a discovery sanction.
2. Whether Penniman's opinions concerning fencing color, shadows, ski-trail organization, learning-area placement, and skier behavior satisfied Federal Rule of Evidence 702 and Daubert reliability and qualification requirements.
3. Whether Penniman could testify that shadows caused Perciballi's accident despite not witnessing the accident or personally interviewing the fact witnesses.

Disposition

other