Structural Engineering Expert Allowed to Opine on a Wheel Stop

This matter involves a trip-and-fall incident that occurred on January 24, 2023, at CenterPoint Garage, located at 725 S. Ash Ave. in Tempe, Arizona. Plaintiff Carolyn Calhoun tripped over a displaced wheel stop at the front of her parking spot and alleges premises liability negligence against Defendant SP Plus, who manages the garage.

Plaintiff Calhoun filed a motion to exclude the testimony of Defendant's billing expert, John Moran, and Defendant Standard Parking Plus Corp. filed a Rule 702/Daubert motion to preclude certain opinions of Plaintiff's expert, Joseph P. Zbick.

Medical Billing Expert Witness

John C. Moran has over thirty (30) years of experience working in the medical insurance and medical bill review industry.

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

Structural Engineering Expert Witness

Joseph Patrick Zbick has over 26 years’ experience in the analysis, design, inspection, and evaluation of new and existing structures for wind, seismic, and various code-required roof and floor live load applications, including high snow, assembly, heavy storage, heavy vehicle, and equipment loads.

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

Discussion by the Court

I. Calhoun's Motion to Exclude Moran's Testimony

SP Plus retained Moran to review Calhoun's medical records and bills, as well as a report regarding potential future medical expenses, and opine as to reasonable and customary charges for her medical treatments and services. Calhoun sought to exclude Moran's testimony for four reasons.

First, Calhoun argued that Moran's "specialized knowledge" will not help the jury because his experience is with insurance companies and other entities paying medical bills, not with medical providers developing billing rates. Moran has a bachelor's degree in economics, 30 years of experience in medical cost analysis, additional experience in the insurance and health care industries, and testified or provided affidavits regarding medical cost analysis in hundreds of cases. Regardless of whether he worked with insurance companies receiving and paying the bills, or medical providers creating and sending the bills, the Court found that Moran's knowledge, skill, and experience qualify him to offer expert testimony about medical costs under Rule 702(a).

Second, Calhoun argued that Moran's opinions are not based on sufficient data because he has not confirmed the records in the Fair Health database are representative of billing rates in the Phoenix area. Fair Health is widely used and includes billions of records from Medicare and the 60 largest insurance companies. Moran used Fair Health data from all zip codes starting with "852" and compared it against Calhoun's bills. Given the volume of data in the Fair Health database, the geographic area Moran used for comparison, and his familiarity with Arizona medical providers and bills, the Court found that Moran's opinions are based on sufficient data and that he, like other experts, can reasonably rely on the Fair Health database.

Third, Calhoun argued that Moran's opinions are not the product of reliable principles or methods because he has not identified an objective or scientific basis for his "80th percentile" benchmarking methodology. Moran's report and deposition testimony state the 80th percentile method is used by many states (although not Arizona) and organizations such as the American College of Emergency Physicians to determine usual and customary rates. Other courts have held such methods are sufficiently reliable to satisfy Fed. R. Evid. 702(c). The Court agreed that Moran's 80th percentile method is sufficiently reliable and that any critique of Moran's benchmarking methodology goes to the weight, not admissibility, of his testimony.

Finally, Calhoun argued that Moran's testimony will not assist the jury because SP Plus has not claimed her medical providers "acted improperly in the manner in which they billed for their services." The Court has consistently held that similar testimony regarding the cost of past and future medical expenses will assist the jury in considering an appropriate damages award. The Court agreed that Moran's testimony will assist the jury in this case.

II. SP Plus's Motion to Limit Zbick's Opinions

Calhoun retained Zbick, a Professional Engineer, to inspect the CenterPoint Parking Garage and opine on the condition of the wheel stop. SP Plus did not seek to preclude Zbick from testifying, only to limit his opinions.

First, SP Plus argued that Zbick should not be allowed to testify that the tripping hazard associated with wheel stops is "sufficiently mitigated" when they are properly placed and the wheel stop at issue "presented a hazard to pedestrians in the area" because it was not in the proper position.

SP Plus contended these opinions are not based on sufficient facts or data or the product of reliable principles and methods as required by Rule 702(b)-(c). The displacement of the wheel stop is undisputed, however, as shown by photos in both parties' expert reports. Zbick's opinions about the tripping hazard posed by wheel stops and how it can be mitigated are reasonable conclusions to draw from American Society for Testing and Materials (ASTM) Standard F1637-13, an industry standard whose reliability SP Plus does not challenge. The challenged opinions therefore satisfy Rule 702(b)-(c).

SP Plus also argued that Zbick's opinion that the tripping hazard posed by wheel stops can be mitigated by proper placement is inconsistent with his opinion that wheel stops always pose a tripping hazard. SP Plus contended that Zbick can offer the latter opinion, but the former must be excluded. The Court disagreed. It is not inconsistent to opine that something is inherently risky and also that the risk can be mitigated. Zbick's opinions are not so inconsistent as to be unreliable and SP Plus can explore any perceived conflict between Zbick's opinions through cross-examination at trial.

Second, SP Plus argued that Zbick should be precluded from testifying that "the position of the wheel stop was in an unexpected location and therefore less likely to be perceived and successfully navigated." SP Plus contended that Zbick's opinion is barred by Rule 702(d) because he did not ask Calhoun where her attention was focused and that his opinion is irrelevant because Calhoun testified she did not see the wheel stop. Again, the Court disagreed. Zbick's opinion that the wheel stop was less likely to be perceived and successfully navigated is a reasonable application of the peer-reviewed literature cited in his reports to the facts of the case. The reliability of Zbick's opinion does not turn on knowing where Calhoun's attention was focused or her testimony that she did not see the wheel stop. As Zbick explained, Calhoun may have seen the wheel stop in her field of vision but may not recall seeing it because she did not interpret or perceive it. Zbick's testimony will help the jury attribute fault between Calhoun and SP Plus.

Held

• The Court denied Calhoun's motion to exclude the testimony of Defendant's billing expert John Moran.

• The Court also denied SP Plus' Rule 702/Daubert motion to preclude certain opinions of Plaintiff's expert, Joseph Zbick.

Key Takeaway

Testimony regarding the average or comparable costs of medical care received by Plaintiff would assist the jury in determining an appropriate award of damages

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