Engineering Expert’s Testimony on an Unsafe Walking Surface Admitted

This is a premises liability action in which the Plaintiff Natasha Walkowicz Shea (“Plaintiff’) sought to hold the Defendants, Kalahari Resorts & Conventions-Poconos; Kalahari Resorts, PA, LLC; and Kalahari Resorts, LLC (hereinafter, collectively, “Kalahari”) liable in negligence for her alleged injuries sustained as a result of slipping and falling on snow and/or ice in a parking lot owned by the Defendants.

Kalahari filed a motion in limine to preclude the testimony of Plaintiff’s engineering expert Keith A. Bergman, P.E. 

Engineering Expert Witness

Keith Alan Bergman, P.E. is a Consulting Engineer in Civil Engineering and obtained a bachelor’s degree in civil engineering from San Diego State University in 1991. He is a licensed professional engineer in numerous states throughout the country and represents that his professional background experience includes “[e]valuations of ice, snow control, grading, storm water management, detention and retention basins, and soil and sedimentation control.”

He purports to specialize in “Highway and Street Design, Traffic Engineering, Utilities Construction, Storm Drainage, Pedestrian Safety, Walkway Surface Evaluations, Concrete and Asphalt Pavement Evaluations” and represents that he has extensive experience “in Construction Management, Project Management, Project Related Claims, Job Site Safety, Codes and Standards, and ADA Compliance.” 

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

Discussion by the Court

Bergman report indicated that he examined the incident site and the incident circumstances in order to determine the nature and cause of the accident.

In this matter, Defendants argued that Plaintiff’s engineering expert, lacked the qualification to offer many the opinions set forth in his expert report. In other words, Defendants claimed that the opinions offered by Bergman lacked scientific, technical, or other specialized knowledge that will help the trier of fact to understand the evidence or to determine a fact in issue and therefore he is not qualified and his report and testimony does not “fit.” 

Although the Court agreed with Defendants that many of the opinions offered by Bergman may be improper and concern areas outside his engineering expertise, it will not wholly preclude Bergman from offering opinions as to either deviation from the standard of care or causation. While certain of Bergman’s opinions and conclusions related to snow/ice removal process and his legal conclusions concerning the Defendants’ negligence may be improper or inadmissible, Defendants may raise these issues again prior to trial.

Similarly, many of the opinions offered by Bergman may not satisfy either the “reliability” or “fit” Daubert requirements, in that certain of his opinions may not assist the jury in determining a fact in dispute. Nevertheless, the Court is not inclined to wholly preclude each and every opinion offered by Bergman, who does in fact offer opinions within his area of engineering expertise.

For example, Bergman opined that “Kalahari Resorts knew, or should have known, that the parking lot slopes towards the inlets from the building which would facilitate drainage flow and have the potential for water freeze/re-freeze conditions with changing temperature.” According to Bergman, the presence of snow/ice on the parking lot created an unsafe walking surface for pedestrians, like Shea.

Defendants’ motion in limine to preclude the testimony of Bergman was denied without prejudice, subject to renewal prior to trial and a Daubert hearing should any party request one.

Held

The Court denied without prejudice the Defendants’ motion in limine to preclude the testimony of Plaintiffs expert Keith A. Bergman, P.E.

Key Takeaway:

The Daubert standard is not intended to be a high one, nor is it to be applied in a manner that requires the Plaintiffs to prove their case twice—they do not have to demonstrate to the judge by a preponderance of the evidence that the assessment of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable.

Case Details:

Case Caption:	Shea V. Kalahari Resorts & Conventions – Poconos
Docket Number:	3:23cv814
Court Name:	United States District Court, Pennsylvania Middle
Order Date:	September 22, 2025