Civil Engineering Expert Partly Allowed to Opine on the Safety of the Alternating Tread Stairway

This case arises from an alleged accident during a construction project at Pennsylvania Station ("Penn Station"). Plaintiff Keith Fager alleged that, while descending a special kind of permanent stairway that led to his work site, he tripped and fell on a rope or string that was left hanging on one of the stairway's treads, seriously injuring his back and hip. Fager brought claims for violations of the New York Labor Law as well as common-law negligence against various Defendants, including the National Railroad Passenger Corporation ("Amtrak"), which owns Penn Station, and Boingo Wireless, Inc. ("Boingo"), the alleged general contractor. Amtrak and other Defendants (together, the "Amtrak Defendants") brought crossclaims for common-law indemnity and contribution against Boingo.

Boingo sought to preclude, in whole or in part, the proposed testimony of Fager's four experts: Scott M. Silberman, Dr. Stelios Koutsoumbelis, Dr. Daniel Wolstein, and Kristin Kucsma.

Civil Engineering Expert Witness

Scott Michael Silberman is a civil engineer with expertise in, as relevant, building engineering and maintenance and construction site safety. He has personally performed several hundred accident investigations and reconstructions.

Get the full story on challenges to Scott Silberman’s expert opinions and testimony with an in-depth Challenge Study.

Orthopedic Surgery Expert Witness

Dr. Stelios Koutsoumbelis is a board-certified orthopedic and spinal surgeon. Koutsoumbelis obtained his undergraduate degree from Tulane University, and his medical degree from the University of Akron.

He is an active member in both the American Academy of Orthopedic Surgery (AAOS), North American Spine Society (NASS), and the Scoliosis Research Society (SRS).

Want to know more about the challenges Stelios Koutsoumbelis has faced? Get the full details with our Challenge Study report.

Vocational Rehabilitation Expert Witness

Dr. Daniel A. Wolstein is a highly experienced vocational evaluator who actively contributes to advancing science and professionalism in the vocational field. His research has been published in the Journal of Forensic Vocational Analysis. Wolstein is a current board member and Past-President of the American Board of Vocational Experts, and on the same board, he previously served as Conference Chair (2022 and 2023).

He completed his doctoral studies in rehabilitation counseling and administration at East Carolina University and his Master's degree in rehabilitation counseling from Rutgers University (formerly the University of Medicine and Dentistry of New Jersey).

Gain a comprehensive understanding of Daniel Wolstein’s qualifications and casework history with his Expert Witness Profile report.

Economics Expert Witness

Kristin K. Kucsma is an experienced economic and financial analyst and a former professor at Drew University and Seton Hall University.

Want to know more about the challenges Kristin Kucsma has faced? Get the full details with our Challenge Study report.

Discussion by the Court

Scott Silberman

Applying the standards set forth above, the Court concluded that the testimony of Fager's liability expert, Scott Silberman, must largely be excluded. Silberman is a civil engineer with expertise in, as relevant, building engineering and maintenance and construction site safety, who was retained to offer testimony concerning the safety of the alternating tread stairway.

Given his expertise, Silberman may testify to the design and function of the stairway, including whether the alleged dangling rope served any purpose in light of that design and function. He may also testify to safety issues concerning the stairway and the construction site, namely the proper uses of the stairway and the pertinence of any training as to those uses in light of industry practices.

Beyond those matters, however, Silberman's intended testimony runs afoul of the well-settled limits of expert testimony. For one, large portions of his report simply "rehash evidence in the case without providing any expert analysis," as when he summarizes Fager's account of the alleged fall.

Similarly, other portions "opine on the inferences to be drawn from [the] evidence" without drawing on any specialized experience or knowledge, as when he asserts that the dangling rope was not integral to Fager's work because the "testimony conclusively establishes that no one knows why the [rope] was present" in the stairway, or when he affirms that the rope — and nothing else — constituted a tripping hazard or otherwise rendered the stairway unsafe. At best, this testimony amounts to little more than "unhelpful commentary on 'lay matters which a jury is capable of understanding and deciding without the expert's help.'"

Additionally, much of Silberman's proposed testimony offers impermissible legal conclusions, including conclusions as to whether the Industrial Code regulations at issue in Fager's New York labor law claims are proper predicates for liability and whether Defendants violated those regulations and the statute. In fact, Silberman offers opinions about questions of law that are raised by the parties' instant motions (and resolved below), such as whether Boingo is properly named as a Defendant with respect to Fager's Labor Law claims and whether a stairway constitutes a "passageway" within the meaning of Section 23-1.7(e)(1) of the Industrial Code.

Finally, to the extent Silberman opined that Fager would not have fallen from the stairway but for the presence of the rope, he offers no basis for that conclusion, and so it "must also be excluded" as "mere ipse dixit."

Boingo's remaining objections, however, "go to the weight, not the admissibility, of Silberman's anticipated testimony." To the extent Boingo objects that Silberman's testimony is "premised on [unfounded] assumptions about disputed issues"— such as whether the rope was present in the first place — "that does not render his testimony inadmissible so long as it is left to the jury to decide whether those assumptions are valid." Further, although Boingo complains that Silberman did not visit or inspect the stairway himself and relied in part on undated photographs in forming his opinions, those opinions are grounded in record evidence, including Fager's testimony that, with the exception of the rope's placement, the photographs fairly depict the stairway and the rope's appearance on the day of the accident. As such, regardless of whether the photographs are themselves admissible, Silberman's opinions are not so "speculative or conjectural" as to warrant exclusion.

Dr. Stelios Koutsoumbelis

At a high level, Boingo's objections to Fager's expert testimony on damages pertain to the experts' qualifications as well as the reliability and relevance of their testimony, the latter of which involves nested objections as to Wolstein's and Kucsma's reliance on certain opinions rendered by Stelios Koutsoumbelis. For that reason, the Court began with Koutsoumbelis, Fager's treating orthopedic surgeon.

Boingo first quarrels with Koutsoumbelis' proposed testimony on certain post-accident medical conditions, namely Fager's alleged hip avascular necrosis and post-operative delirium, on the ground that he is not qualified to render any such testimony. The Court disagreed. Koutsoumbelis is a board-certified orthopedic and spinal surgeon. Given his training in orthopedic surgery and the "closely related" nature of "the fields of radiology and orthopedics," he is qualified to interpret imaging studies and evaluate musculoskeletal conditions, not only in the spine — his specialty — but also in the hip.

Koutsoumbelis is also qualified to testify as to post-operative medication management and complications related to Fager's surgical procedures, including the possibility that any medications actually or typically prescribed due to such surgery or its complications may cause delirium.

Even if the records of the hospital where Fager received care for the delirium point to "suspected substance withdrawal" as the cause of that delirium, Koutsoumbelis' extensive experience with spinal surgeries and their aftermath provide "good grounds" for his opinion that the confluence of medications and substance withdrawal may have actually caused that delirium. That said, while Boingo argued that Koutsoumbelis should be precluded from testifying that any such medications were the sole cause of the delirium, neither Fager nor his expert appear to defend that position. Accordingly, Boingo's motion on that limited score is granted as unopposed.

Next, Boingo objects to the reliability of Koutsoumbelis' opinions as to Fager's allegedly "asymptomatic" medical history prior to the accident at issue in this case. Here, Boingo stands on firmer ground. The record suggests that Koutsoumbelis, who only treated Fager after his alleged fall, relied exclusively on self-reporting in concluding that Fager was "asymptomatic" between a laminectomy in the late 1990s and the 2022 accident and did not independently consider any pre-accident medical records or information. That includes, most notably, information that Fager had been diagnosed with chronic back pain for which he was meant to be seeing a pain management doctor.

Relying on Fager's self-reporting alone renders Koutsoumbelis's opinions with respect to whether Fager was "asymptomatic" prior to the 2022 accident both unreliable and unhelpful to the jury — which can draw its own conclusions from Fager's testimony about his medical history. Any such opinions are thus inadmissible. This is not to say, however, that Koutsoumbelis is precluded from offering opinions regarding his diagnosis and treatment of Fager's post-fall injuries, as well as the cause of those injuries, which are based in part on Fager's self-reporting.

Last, Boingo sought to preclude Koutsoumbelis from testifying that Fager requires immediate, round-the-clock in-home care as well as certain assistive aids (namely, a wheelchair or scooter), on the theory that it constitutes undisclosed and unfounded expert testimony. To the extent that Koutsoumbelis did not opine on Fager's need for 24/7 home healthcare or certain specific assistive aids in his report or deposition, he did opine on the matter in a questionnaire on "future care considerations" that he completed at Wolstein's request. The existence and contents of that questionnaire were expressly referenced in Wolstein's report, which was disclosed to Defendants in early May 2025, well before Koutsoumbelis' deposition on June 24, 2025.

Additionally, the questionnaire itself was shared with Defendants during Wolstein's deposition on June 27, 2025, about two weeks before the close of expert discovery. If Defendants believed they were prejudiced by the timing of these disclosures, they could have sought an extension of expert discovery or discovery sanctions — including, for example, an order permitting them to redepose Koutsoumbelis at Fager's expense. They did not, which undermines their disclosure-related arguments to exclude Koutsoumbelis' testimony on this front.

Boingo's arguments that Koutsoumbelis' opinions on these matters rest on insufficient facts or else do not "fit" with the facts of the case also fall short. According to Koutsoumbelis, Fager underwent spinal fusion surgery, experienced severe complications, and "now has to live his life with loose hardware." He is unable to sit — as opposed to lying down — for extended periods without pain, and he relies on his mother and assistive devices — "a cane, a walker, a brace" — to ambulate and attend to his daily tasks. These observations, learned in the course of treating Fager (and perhaps reviewing post-fall medical records), indicate that Koutsoumbelis' opinions are "'adequately grounded in the methods and procedures of science' and based on 'more than subjective belief or unsupported speculation.'" They also show that his assessment "fits the facts of this case."

Indeed, on this point, it bears noting that, consistent with Koutsoumbelis's assessment, Wolstein testified that, to his knowledge, Fager's parents "help him with everything around the house; with cooking, cleaning and grocery shopping," that he uses a cane, and that he can drive "about 45 minutes at most."

Against this backdrop, the Court cannot find that Koutsoumbelis's opinions regarding Fager's need for immediate, continuous in-home care and assistive devices such as a wheelchair or scooter are either "connected to existing data" by mere ipse dixit or "irrelevant to the task at hand." The Court reaches a different conclusion, however, with respect to any opinion that Fager is "completely bedridden," as any such opinion is belied by Koutsoumbelis's and Wolstein's own reports and depositions. Any such testimony is therefore excluded as lacking a sufficient factual foundation.

Dr. Daniel Wolstein

At the outset, because the Court has found that Koutsoumbelis's opinions — via the questionnaire — as to the need for 24/7 home health services and certain assistive devices (e.g., a wheelchair or scooter) are reliable and relevant, it follows that any objection to Wolstein's reliance on that questionnaire in projecting Fager's medical costs falls short.

To be sure, there is some ambiguity with respect to precisely when Fager needs a wheelchair or power scooter, and thus as to the proper starting point for projecting costs associated with those devices. But Wolstein's conclusions are not so speculative or unfounded as to warrant preclusion, especially in light of his own interviews with Fager.

The same is true with respect to Wolstein's reliance on the questionnaire to project costs relating to future spinal surgery. Granted, Koutsoumbelis rendered somewhat conflicting opinions with respect to future surgery. And his markings on the questionnaire on this front are terse and technical, so it is not entirely clear whether the additional surgery that he discusses in his report and deposition is the same as the surgery referenced in the questionnaire and thus included in Wolstein's cost projections. But so long as that is the case, his opinions regarding the need for future surgery — and by extension Wolstein's projections of its costs— are neither conjectural nor indicative of "bad faith."

Accordingly, subject to the caveats discussed herein, the jury is entitled to hear all of the evidence on the projected costs of this future spinal surgery and to draw its own conclusions as to whether any such damages are warranted.

Kristin Kucsma

Boingo objected to Kucsma's assessment as to three categories of economic loss: future earnings, health insurance costs, and lifetime care costs. As for future lost earnings, Boingo contended that Kucsma's opinion is based on a chain of impermissibly conjectural assumptions: (1) that Fager can never work again; (2) that he would have retired at the age of sixty-seven; and (3) that, had he not been injured in 2022, his income would have increased year after year.

Each link in this chain, however, satisfies Daubert scrutiny. For one, Koutsoumbelis opined that Fager "is permanently and totally disabled from all work," and provided a sufficient basis for that opinion. Kucsma is entitled to incorporate those medical findings into her economic projections.

Further, that Fager stated that he should "have had at least 12 more years of work," does not render Kucsma's reliance on statistical data to calculate an age of retirement beyond that twelve-year mark unduly speculative.

And Kucsma's calculations are sufficiently anchored in wage-and-hour schedules from Fager's union as well as his actual earnings from the years immediately preceding his injury — not spun from whole cloth. Plus, at her deposition, Kucsma explained how her methodology accounted for the fact that, as Boingo emphasizes, Fager's earnings did not necessarily increase year-to-year in the period before the accident. With that in mind, the Court concluded that Kucsma's opinions on future earnings are sufficiently reliable to go to the jury.

For similar reasons, Boingo's challenge to Kucsma's calculation of Fager's health insurance costs also fails. And to the extent Boingo argues that Kucsma's methodology allows for double recovery because it projects "future medical costs" as well as "future health insurance costs," that is neither necessarily true nor an argument about the reliability of her opinion, and, in any event, may be addressed with appropriate jury instructions.

Finally, to the extent that Boingo sought to preclude Kucsma's testimony on Fager's lifetime care costs because they rely on Wolstein's life care plan, that argument fails for the same reasons its objections to Wolstein's testimony did.

Held

The Court granted in part and denied in part Boingo's motion to preclude in whole or in part certain testimony by four of Fager's experts, Scott Silberman, Dr. Stelios Koutsoumbelis, Dr. Daniel Wolstein, and Kristin Kucsma.

Key Takeaway

Disagreement on the merits of an expert's opinion — rather than to an expert's methodologies or qualifications — is not proper grounds for exclusion.

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