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Sweiger v. Delaware Park L.L.C.

Superior Court of Delaware, Sussex

December 9, 2013

Audrey E. Sweiger
Delaware Park, L.L.C. & Delaware Racing Association d/b/a Delaware Park,

Date submitted October 8, 2013.

Andrea G. Green, Esq. Law Office of Andrea G. Green, LLC.

Thomas J. Gerard, Esq. Marshall, Dennehey, Warner, Coleman & Goggin

Dear Counsel:

Before the Court is Defendants' Delaware Park, L.L.C. and Delaware Racing Association d/b/a Delaware Park ("Defendants'") Motion in Limine to Exclude Testimony of Plaintiff's Expert Witness Julius Pereira ("Pereira"), filed against Plaintiff Audrey E. Sweiger ("Plaintiff"). For the reasons that follow, Defendants' Motion is GRANTED in part and DENIED in part.


This Motion stems from an incident which occurred on the evening of January 13, 2010. On that date, Plaintiff, an eighty-one-year-old woman, visited Defendants' establishment, and was present in Defendants' casino at about 6:20 p.m. Plaintiff claims that she left the casino area and entered an adjacent glass-enclosed alcove, which Plaintiff believed to be a smoking room. Plaintiff then attempted to re-enter the casino through a different entrance and in doing so, walked into an unmarked glass window and fell to the floor. She suffered bodily injuries as a result. Other glass windows within the wall contained decals, but the one causing Plaintiff's injury did not.

Plaintiff hired Pereira, a licensed architect, to opine on the conditions of the site of her injury. In his report, Pereira, who visited the site, first described the layout of Defendants' casino area and the glass alcove at the time of Plaintiff's injury.[1] He also noted that building codes do not address injuries relating to walking into glass windows, but stated that national publications, architectural references, and materials which specifically address the racetrack, casino, and restaurant industries all advise that glass windows be identified, either by special design within the glass, such as etching, or by artificial means, such as decals, in order to avoid human contact. Additionally, Pereira stated that materials related to the casino industry warn businesses of the presence of elderly customers. This, he claimed, became particularly problematic when confronting the hazards of subtle glass paneling. Pereira further noted that at night, while standing inside the casino, the reflections from the casino's lights made the glass conspicuous, but while standing in the alcove, the lights within the casino overpowered any reflections on the glass, rendering it inconspicuous.

Ultimately, Pereira opined that the window's inconspicuous nature impaired Plaintiff's ability to detect it, that Defendants' failure to install decals on the window in an area foreseeably used by elderly patrons deprived Plaintiff of a necessary warning, that Defendants' failure to place decals on the window did not comply with reasonable safety standards and created a hazardous condition, and that Plaintiff's actions were neither unusual nor unforseeable.


Parties' Contentions

Defendants contend that Pereira's other opinions should be excluded for lack of an application of a heightened sense of knowledge to the facts of this case. Defendants claim that no reliable, methodical analysis can be gleaned from Pereira's conclusions. Rather, his positions "are based upon . . . potentially favorable snippets from various publications, "[2] all of which constitute non-binding, secondary source literature. Furthermore, Defendants claim that some of these publications are not the sort relied upon by experts in Pereira's field.[3]

Defendants also note three prior instances in which they claim a court disqualified Pereira as an expert, as well as an "unspecified number" of times when his testimony was limited.[4] Additionally, Defendants classify Pereira as a "professional expert" without any special experience or qualifications, other than his status as a licensed architect, which would allow him to render an expert opinion.[5]

Defendants assert that Pereira's conclusions cannot survive the rigorous strictures of the Delaware Rules of Evidence, as interpreted by both federal and Delaware case law. Specifically, Defendants argue that Pereira, who has no medical training and cannot be classified as a "human factors" expert, has no basis to opine about the behavior of the elderly clientele in casinos, both in general and in relation to Plaintiff. Furthermore, Defendants assert that Pereira, who is being used by Plaintiff to establish an industry standard, impermissibly implies that Defendants owed a duty to warn Plaintiff of the glass window, based solely on irrelevant "industry" publications, which could only confuse the jury.[6]

Defendants also contend that Pereira has no basis to opine on reflections on the glass. They state that Pereira did not perform any lighting analysis of the injury site, and his "testimony in support of his report revealed absolutely no scientific analysis and/or evaluation of the lighting in the area upon which his opinions regarding reflections could be based."[7]

Plaintiff asserts that Pereira possesses the requisite knowledge to render an expert opinion, having done so in prior cases involving "glass and illumination issues;"[8] and that Pereira's extensive research in this case establishes a standard of conduct which the jury should be permitted to consider.[9] Plaintiff argues that Pereira used appropriate sources in forming his opinions; and Defendants' lack of any code violation is irrelevant because Plaintiff does not allege negligence per se.

Plaintiff explains that Pereira's process consisted of first viewing background material such as video footage and scene photographs. He then conducted a sight inspection under circumstances similar to Plaintiff's injury, taking photographs and measurements. Pereira then examined numerous amounts of research, and culminated his work into a formal opinion. Such methodology, comparable to the methodology of Defendants' expert Todd T. Breck ("Breck"), who Plaintiff points out based his conclusions on common, ...

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