Perrone v. Catamount Ski Resort, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ANNIE PERRONE,

Plaintiff,

v.

1:20-cv-563 (AMN/CFH)

CATAMOUNT SKI RESORT, LLC

and CATAMOUNT DEVELOPMENT

CORPORATION,

Defendants.

APPEARANCES: OF COUNSEL:

LAW OFFICE OF URIEL E. GRIBETZ URIEL E. GRIBETZ, ESQ.

19 Court Street, Suite 201

White Plains, New York 10601

Attorneys for Plaintiff

ROEMER WALLENS GOLD & MINEAUX, LLP MATTHEW J. KELLY, ESQ.

13 Columbia Circle

Albany, NY 12203

Attorneys for Defendants

Hon. Anne M. Nardacci, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On August 28, 2019, Plaintiff Annie Perrone (“Plaintiff”) commenced this diversity action

against Catamount Ski Resort, LLC (“Catamount Ski Resort”) and Catamount Development

Corporation (“Catamount Development”; together with Catamount Ski Resort, “Catamount” or

“Defendants”) alleging negligence and gross negligence in connection with injuries Plaintiff

suffered while skiing at Catamount Ski Area. See generally Dkt. No. 1 (“Complaint”). This case

is set for trial on May 13, 2024. Presently before the Court are the parties’ motions in limine and

responses. Dkt. Nos. 83, 90, 94, 96.1

For the following reasons, the Plaintiff’s motion in limine is denied, and Defendants’

motion in limine is denied in part and reserved in part.

II. STANDARD OF REVIEW

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on

the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S.

38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); Nat’l Union Fire Ins. Co.

of Pittsburgh v. L.E. Myers Co., 937 F. Supp. 276, 283 (S.D.N.Y. 1996). “Evidence should be

excluded on a motion in limine only when the evidence is clearly inadmissible on all potential

grounds.” United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001) (citation omitted).

“[C]ourts considering a motion in limine may reserve decision until trial, so that the motion is

placed in the appropriate factual context.” Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 536

(E.D.N.Y. 2011) (citing Nat’l Union Fire Ins. Co., 937 F. Supp. at 287). Further, a district court’s

ruling on a motion in limine is preliminary and “subject to change when the case unfolds.” Luce,

469 U.S. at 41. The moving party bears the burden of establishing that evidence is inadmissible

for any purpose and so properly excluded on a motion in limine. See United States v. Pugh, 162

F. Supp. 3d 97, 101 (E.D.N.Y. 2016).

III. DISCUSSION

Plaintiff and Defendants each seek to preclude or limit the testimony of the opposing

party’s experts. The admissibility of expert testimony is governed by Rule 702 of the Federal

Rules of Evidence (“Rule 702”). Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509

1 Citations to docket entries utilize the pagination generated by CM/ECF, the Court’s electronic

filing system.

U.S. 579, 588 (1993). While district courts perform a “gatekeeping role” to ensure “that an

expert’s testimony both rests on a reliable foundation and is relevant to the task at hand,” Daubert,

509 U.S. at 597, “[i]t is a well-accepted principle that Rule 702 embodies a liberal standard of

admissibility for expert opinions.” U.S. v. Napout, 963 F.3d 163, 187 (2d Cir. 2020) (quotation

omitted).

Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if the proponent

demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods

to the facts of the case.2

The Second Circuit has interpreted Rule 702 to require the district court to first determine

whether a proposed expert is qualified to provide an opinion, before assessing the reliability and

relevance of the expert’s proffered testimony. See, e.g., Vale v. U.S., 673 Fed. App’x 114, 116 (2d

Cir. 2016) (summary order) (“As a threshold matter, trial courts must consider whether the witness

is qualified . . . before reaching an analysis of the testimony itself.”); Nimely v. City of New York,

414 F.3d 381, 396-97 (2d Cir. 2005) (“[A]fter determining that a witness is qualified as an expert

to testify as to a particular matter . . . and that the opinion is based upon reliable data and

methodology, Rule 702 requires the district court to make a third inquiry: whether the expert’s

testimony (as to a particular matter) will assist the trier of fact.”) (quotations and citation omitted).

2 Rule 702 was amended effective December 1, 2023. The amended Rule now requires courts to

determine that “it is more likely than not” that the four factors are satisfied before allowing an

expert witness to testify. Fed. R. Evid. 702.

A. Plaintiff’s Motion in Limine

1. Irving Scher, Ph.D.

Plaintiff seeks to preclude Defendants’ biomechanical engineering expert, Irving Scher,

Ph.D., “from testifying at trial in regard to the causation of [P]laintiff’s injuries.” See generally

Dkt. No. 90.3 Plaintiff contends that Dr. Scher is “not a medical doctor” and does not have “the

educational background or training” to provide an opinion as to the medical causation of Plaintiff’s

pelvic fracture sustained in the ski accident. Dkt. No. 90 at 1-3 (citing, inter alia, Gates v.

Longden, 120 A.D.3d 980, 981 (4th Dep’t 2014)) (“[D]efendants’ biomechanical expert is an

engineer, and is not a medical doctor, and thus the court properly determined that the expert did

not possess the requisite skill, training, education, knowledge or experience from which it can be

assumed that the information imparted or the opinion rendered regarding injury causation is

reliable.”) (quotation omitted).

Defendants assert that Dr. Scher will not testify as to Plaintiff’s medical injuries, and that

he relied on the review of a board-certified radiologist to identify and confirm the injuries Plaintiff

sustained to her pelvis. Dkt. No. 96 at 9-10. However, Defendants contend that Dr. Scher “should

be permitted to testify as to the issues surrounding general causation and the forces sustained by a

person of Plaintiff’s height and mass in a skier collision with a fixed object, including the

likelihood that typical ski-area padding would alter the forces such skier would experience.” Id.

3 Specifically, Plaintiff seeks to exclude Dr. Scher’s testimony that “to a reasonable degree of

biomechanical engineering certainty, it is highly unlikely that typical ski area padding would

prevent pelvic injuries for an individual of [Plaintiff’s] size and mass contacting the subject snow

making equipment at or near typical non-beginner skier speeds on a trail similar to Colonel

Capers.” Dkt. No. 90 at 1. Defendants further seek to have Dr. Scher testify that “[t]ypical [ski]

area padding used on off trail objects would not have altered the outcome of Ms. Perrone’s

accident; commercially available ski area padding would be unlikely to lessen significantly the

severity of her injuries." Id. (citing Dkt. No. 58-21 at 25).

at 3-4.

While “[a] biomechanical engineer without a medical degree or training is . . . generally

not allowed to testify regarding whether a specific accident caused or contributed to a plaintiff’s

injuries . . . . [c]ourts in the Second Circuit typically allow biomechanical engineers to testify only

to general causation, i.e., whether the force sustained by a plaintiff in the subject accident could

potentially cause certain injuries.” Grajeda, v. Vail Resorts Inc., No. 2:20-CV-00165, 2023 WL

4803755, at *11 (D. Vt. July 27, 2023) (quotation marks and citations omitted); see also Nicolas

v. ABF Freight Sys., No. 19-CV-06513 (HG) (JAM), 2024 WL 915179, at *2 (E.D.N.Y. Jan. 24,

2024) (“It is well settled that biomechanical experts are permitted to opine as to general causation

of injuries.”).

Moreover, courts have found Dr. Scher qualified to testify regarding general causation,

including the efficacy of whether commercially available padding on an object a plaintiff collided

with while downhill skiing could have prevented or reduced the severity of a plaintiff’s injury. For

example, in Madsen v Catamount Dev. Corp., Index No. 157038/2015 (Sup. Ct. N.Y. Co.), Dr.

Scher testified at trial as to whether commercially available padding would have prevented or

reduced the injury of an infant who collided while downhill skiing with an unpadded metal snow

gun. See Zhou v. Tuxedo Ridge, LLC, Index No. 709709/2021, NYSEF Doc. No. 82 at 1-3 (Sup.

Ct. Queens Co. Sep. 12, 2022) (citing Madsen Expert Witness Disclosure of Dr. Scher). On appeal

in Madsen, the First Department affirmed the verdict in favor of the defendant and found that a

jury “could have concluded that padding the pole which the infant plaintiff struck at the time of

her accident would not have prevented or reduced her injuries,” and that Dr. Scher’s testimony

“was not speculative.” Madsen v. Catamount Dev. Corp., 188 A.D.3d 423, 424 (1st Dep’t 2020);

see also Grajeda, 2023 WL 4803755, at *2, *11-12, *20 (summarizing Dr. Scher’s qualifications

in biomechanical engineering and permitting Dr. Scher to testify regarding “general causation” of

a plaintiff’s injury who collided with a snowmaking station’s metal pole while downhill skiing,

including whether at certain speeds, padding would have prevented significant injuries); Zhou,

Index No. 709709/2021, NYSEF Doc. No. 122 at 3 (Oct. 7, 2022) (noting that Dr. Scher’s

“extensive background renders him an expert in his field [of biomechanics] and capable of

testifying as to the mechanics of injury”).

Plaintiff further contends that because Dr. Scher never went to the accident site, he should

not be able to testify that “[a] non-beginner skier should be able to stop or change direction to

avoid open, obvious, visible, and marked snow making (or other obstacles) that are 135 feet away.”

Dkt. No. 90 at 2 (citing Dkt. No. 58-21 at 19). Defendants respond that Dr. Scher has a factual

basis for his opinion as he attended a virtual trail inspection, on a video call, at Catamount Ski

Area with Defendants’ expert ski witness, Mark Petrozzi. Dkt. No. 96 at 11 (citing Dkt. No. 96-3

at 10).

The fact that Dr. Scher did not personally visit the site of the accident does not, by itself,

make his testimony unreliable. See, e.g., Thomas v. YRC Inc., No. 16-CIV-6105 (AT) (HBP),

2018 WL 919998, at *6 (S.D.N.Y. Feb. 14, 2018) (noting that the fact a biomechanical engineering

expert did not visit the accident scene did not render his opinion unreliable because the expert

“based his opinion on 26 separate documents relating to [the] litigation, including photographs of

the accident location”); Morgan v. Girgis, No. 07 CIV. 1960 (WCC), 2008 WL 2115250, at *4

(S.D.N.Y. May 16, 2008) (finding plaintiff’s argument that a biomechanical engineering expert’s

opinion is unreliable because the expert did not visit the scene of the accident, inspect the damaged

vehicles, or view photographs of defendant’s vehicle, was without merit).

Therefore, the Court finds that Dr. Scher may provide an opinion regarding general

causation. However, Defendants must lay a proper foundation for his testimony, including the

methods he employed to establish his opinions and any factual bases for his opinions. Plaintiff

may question Dr. Scher on the methods he used and the facts supporting his opinions on cross-

examination. Accordingly, Plaintiff’s motion in limine to preclude Dr. Scher’s testimony is

denied.4

B. Defendants’ Motion in Limine

Defendants seek to: (1) limit the testimony of Plaintiff’s testifying doctor, Thomas S.

Eagan, M.D., and (2) preclude or limit the testimony of Plaintiff’s snow sports expert, Stanley

Gale. See generally Dkt. No. 83.

1. Thomas S. Eagan, M.D.

Defendants contend that Plaintiff was treated by “a number of orthopedists following her

injury,” however, Plaintiff is only calling Dr. Eagan, a “regular courtroom witness,” whose office

is over 150 miles from Plaintiff’s residence, to testify. Dkt. No. 83 at 6. Defendants rely on several

cases for the proposition that “a non-treating physician, hired only to testify as an expert witness,

may not state the history of an accident as related to him by the plaintiff or testify as to plaintiff’s

medical complaints . . . nor can the expert summarize and read statements and findings contained

4 Plaintiff also asserts that Dr. Scher is “incorrect in assuming [Plaintiff] was a non-beginner skier

skiing on a non-beginner trail.” Dkt. No. 90 at 4; see Dkt. No. 64-13 at 12 (noting that even though

Plaintiff testified that she had skied “pretty frequently,” Plaintiff also testified that she “felt the

need to take a lesson prior to skiing the regular slopes because she had not skied in a couple of

years,” and she “would not classify herself as any level skier”) (citing Dkt. No. 58-7 at 47:5-9;

49:16-50:1; 53:7-54:4). Defendants assert that Dr. Scher’s report states that she was skiing on

Colonel’s Caper, a beginner trail, and Plaintiff’s and her father’s deposition testimony indicate that

she was a “non-beginner” skier. See Dkt. No. 96-2 at 12-13 (noting that Plaintiff testified she had

“skied pretty frequently before” and Carlos Perrone, Plaintiff’s father, testified that Plaintiff’s skill

was somewhere “between beginner and intermediate”) (citing Dkt. No. 58-7 at 47:5-9; Dkt. No.

58-8 at 9:16-21). The Court finds that Dr. Scher’s opinion is not unreliable on this basis. Plaintiff

may question Dr. Scher as to Plaintiff’s skill level on cross-examination.

in the reports and records of plaintiff’s treating physicians, where reports and records were not in

evidence and treating physicians did not testify at trial.” Id. at 6-9 (quoting Hall v. Holiday

Mountain Fun Park, Inc., No. 0013342015, 2017 WL 7788834, at *2 (Sup. Ct. Sullivan Co. May

19, 2017) (citing Nissen v. Rubin, 121 A.D.2d 320, 322 (1st Dep’t 1986); Adkins v. Queens Van-

Plan, Inc., 293 A.D.2d 503, 503 (2d Dep’t 2002); and Easley v. City of New York, 189 A.D.2d 599,

600 (1st Dep’t 1993)).

In response, Plaintiff argues that Dr. Eagan’s opinion is not relying on hearsay, because he

“conducted a physical examination of [P]laintiff” and his opinion is based on the review of

Plaintiff’s medical records. See Dkt. No. 94 at 2 (citing Dkt. 94-1 at 3, 6-11) (Plaintiff’s

Supplemental Expert Disclosure noting that Dr. Eagan is expected to testify based on his

independent medical examination of Plaintiff and review of all of the medical records, including

X-rays and MRI films, and listing the medical records he reviewed).5 Plaintiff therefore argues

that the cases Defendants rely on are inapposite. Dkt. No. 94 at 3 (distinguishing Nissen and citing

Singh v. Catamount Dev. Corp., 21 A.D.3d 824, 825-26 (1st Dep’t 2005) (plaintiff’s orthopedic

expert’s testimony was properly received in evidence because it was based on a “review of the

medical reports, x-rays, CAT scans and other diagnostic tests admitted into evidence”)).

“It is well settled that a non-examining physician is competent to testify as a medical expert

in a civil . . . trial as to the cause of a particular medical condition based upon, for example,

inspection of the patient’s medical records or the expert’s interpretation of diagnostic tools such

as X rays and MRI films.” Meyer v. Bd. of Trustees of the New York City Fire Dep’t, Art. 1-B

Pension Fund by Safir, 90 N.Y.2d 139, 146 (1997). Here, the Court finds that Dr. Eagan may

5 Plaintiff also notes that Plaintiff’s medical records were subpoenaed from “Columbia Memorial

Hospital, Albany Medical Center, Yale Orthopedics and Rehabilitation, and Mount Sinai

Hospital,” and Dr. Eagan reviewed the treating physicians’ notes. Dkt. No. 94 at 2.

testify based on his examination of Plaintiff and the medical records he relied on in forming his

opinion which are admitted into evidence, as long as he lays the proper foundation. Accordingly,

Defendants’ motion in limine is denied on this basis.

Defendants next argue that there is “no evidentiary foundation” in the medical records for

Dr. Eagan’s opinions that: (1) Plaintiff “suffered a torn labrum of the right hip”; (2) Plaintiff will

“more likely than not develop arthritis of the right hip and require a hip replacement during her

lifetime”; and (3) Plaintiff “is not able to perform heavy labor or place excessive loads on her

injured pelvis.” Dkt. No. 83 at 9-10.6 Plaintiff contends that Defendants’ arguments “are more

appropriate for cross examination” of Dr. Eagan at trial rather than precluding his testimony. Dkt.

No. 94 at 2. The Court agrees with Plaintiff. Accordingly, Defendants’ motion in limine is denied

without prejudice to renewal at trial.

Defendants also assert that Dr. Eagan is not qualified to testify based on his diagnostic tests

“whether or not there is symptom magnification” by Plaintiff because this falls under the purview

of a psychologist. Dkt. No. 83 at 9. The Court finds that Dr. Eagan is qualified to testify as to the

causal relationship between Plaintiff’s complaints and her reported injury, as long as he lays a

proper foundation. See Dkt. No. 94-1 at 20. Accordingly, Defendants’ motion in limine as to this

aspect of Dr. Eagan’s testimony is denied.

Finally, Defendants argue that Dr. Eagan’s opinion that Plaintiff “will require cesarean

section for delivery of any children” should be precluded because “there is no evidentiary basis.”

Dkt. No. 83 at 10. The Court disagrees and finds that Defendants’ challenge is an appropriate

6 Defendants cite to Plaintiff’s September 14, 2019 MRI at Mount Sinai Hospital stating “the

labrum is intact” and a November 27, 2019 medical record from Dr. Michael Baumgaertner noting

that Plaintiff’s “pelvic fracture had solidly healed and should not lead to long-term problems.”

Dkt. No. 83 at 9-10 (citing Dkt. No. 83-1 at 3, 5).

subject for cross-examination. Defendants further argue that Dr. Eagan’s opinion regarding

whether Plaintiff will require a cesarian section for delivery of any children is cumulative of

Plaintiff’s OB/GYN witness, Dr. Garafolo. Id. The Court does not have sufficient information

regarding Dr. Garafolo’s testimony to determine whether Dr. Eagan’s testimony would be

cumulative. Accordingly, the Court reserves decision on Defendants’ motion in limine as to this

aspect of Dr. Eagan’s testimony until trial.

2. Stanley Gale

Defendants first argue that Mr. Gale is not qualified to give expert testimony because he

does not “have the levels of knowledge, experience, or skill in the area of accident reconstruction

or ski area operations” necessary to provide an expert opinion. Dkt. No. 83 at 11-137 (citing, inter

alia, Smith v. M.V. Woods Constr. Co., 309 A.D.2d 1155, 1156 (4th Dep’t 2003)) (“An expert

witness must possess the requisite skill, training, knowledge or experience to ensure that an

opinion rendered is reliable.”). Therefore, Defendants assert that his opinions are “speculative and

conclusory.” Dkt. No. 83 at 14. Plaintiff responds that Mr. Gale has extensive experience

testifying as a ski safety expert. Dkt. No. 94 at 3-4 (citing Mr. Gale’s extensive experience as a

ski safety expert); see also Dkt. No. 64-5 at 34-36 (Mr. Gale’s expert report noting his extensive

experience as a ski safety expert, including 55 years of training in snow sports safety, working as

a ski patroller for “nearly 40 years,” skiing and inspecting “thousands of ski trails in approximately

400 ski areas,” and “responding to collisions and other injury producing events” as part of his

membership in the National Ski Patrol).

7 Specifically, Defendants assert that Mr. Gale: “(1) [has] never been employed in the area of ski

operations; (2) has no training or experience in managing a ski area; (3) has no qualification to

provide a medical opinion; (4) has no qualification to provide an accident reconstruction opinion;

and (5) [has] no qualification to provide engineering design recommendations.” Dkt. No. 83 at

11.

“In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable

expert testimony.” Rich v. Tee Bar Corp., No. 1:10-CV-1371 (MAD/CFH), 2013 WL 5442277,

at *5 (N.D.N.Y. Sept. 27, 2013) (quoting Rule 702 Advisory Committee Notes, 2000

Amendments); see also Arista Recs. LLC v. Lime Grp. LLC, No. 06-CV-5936 (KMW), 2011 WL

1674796, at *2 (S.D.N.Y. May 2, 2011) (“A witness may be qualified based on any one or more

of the qualities listed in Rule 702—knowledge, skill, experience, training or education”) (emphasis

added). Here, the Court finds that Mr. Gale is qualified to testify as to the customs and practices

of the ski industry, including safety standards and practices. See Zhou, Index No. 709709/2021,

NYSEF Doc. No. 124 at 2 (Oct. 11, 2022) (finding that Mr. Gale was “qualified to testify as an

expert witness regarding the long-standing customs and practices of the ski industry” and that the

defendants could cross-examine Mr. Gale on his expertise); see also Lipton v. Mountain Creek

Resort, Inc., No. CV-134866 (KM) (MAH), 2019 WL 4597205, at *3, *7 (D.N.J. Sept. 23, 2019)

(finding that a liability expert who had “over thirty years of experience working in the ski industry

as a ski patrol director, ski patroller, and director of skier services” was qualified “to offer opinions,

including opinions on industry standards of care and safety standards”).

Defendants next argue that Mr. Gale should be precluded from testifying that the snow gun

was not marked, and his expert disclosure that the snow gun was not marked should be stricken.

Dkt. No. 83 at 14-15. Defendants contend that photographs obtained from Plaintiff after

Magistrate Judge Hummel’s January 12, 2023 Order (the “January Order”),8 show that an orange

lollipop marked the snow gun with which Plaintiff collided. Id. at 14. Defendants assert that

because Mr. Gale previously gave testimony that “properly placed Catamount lollipops [marking

8 In the January Order, Magistrate Judge Hummel ordered Plaintiff’s counsel “to provide to

defense counsel copies of any photographs that depict the conditions of the snow on the date of

the accident and any metadata obtainable for those photographs.” Dkt. No. 62.

snow guns] . . . met the State Code,” see Dkt. No. 83-4, Mr. Gale should be precluded from

testifying that the snow gun was unmarked. Id. at 14-15. The Court will allow Mr. Gale to testify

as to whether the snow gun Plaintiff collided with was properly marked on the day of Plaintiff’s

accident. However, Plaintiff must lay a proper foundation for Mr. Gale’s opinion. On cross-

examination, Defendants may question Mr. Gale regarding the photographs disclosed in

accordance with the January Order.

Defendants further argue that Mr. Gale should be precluded from suggesting that

Catamount “padded snow guns . . . on all trails at all times,” because Mr. Gale’s photographs,

which show that Catamount previously padded poles, were taken on “a day at Catamount when

there was racing on upper-level trails.” Dkt. No. 83 at 15 (citing Dkt. No. 83-5). The Court will

allow Mr. Gale to testify regarding whether Catamount padded snow guns in the past. However,

Plaintiff must lay a proper foundation for Mr. Gale’s opinions and any photographs they seek to

introduce. Defendants may question Mr. Gale on cross-examination regarding the racing event on

the day the photographs were taken.

Additionally, Defendants argue that Mr. Gale should be precluded from testifying that

Catamount should have padded the snow gun with which Plaintiff collided because Mr. Gale

admitted in another case that he “has no expertise in padding and what injuries it would avoid and

what injuries it could not avoid.” Dkt. No. 83 at 15 (citing Dkt. No. 83-4 at 5) (Mr. Gale testifying

that he is unable to “do a calculation that would establish whether certain types of padding would

prevent certain injuries”). Mr. Gale has extensive experience as a ski safety expert, and, as noted

above, he may testify, based on his experience, as to the customs and practices in the ski-industry.

This may include practices related to padding a snow gun located on a ski trail. See Madsen, Index

No. 157038/2015, NYSEF Doc. No. 99 at 1-2 (May 23, 2019) (allowing plaintiff’s ski-safety

expert to testify based on his “long observation and actual experience” on the “issue of whether

industry standards and best practices require a snow-gun pole situated on a ski trail, or where

people are likely to be skiing, [to] be padded”); Schechter v. 3320 Holding LLC, 64 A.D.3d 446,

450 (1st Dep’t 2009) (noting that an expert may be qualified without specialized training “through

long observation and actual experience”) (quotation omitted).

However, Mr. Gale must testify based on his personal knowledge, and he must explain how

his personal experience leads to his conclusions. See Grajeda, v. Vail Resorts Inc., No. 2:20-CV-

00165, 2023 WL 2613543, at *4 (D. Vt. Mar. 23, 2023) (“If the witness is relying solely or

primarily on experience, then the witness must explain how that experience leads to the conclusion

reached, why that experience is a sufficient basis for the opinion, and how that experience is

reliably applied to the facts.”) (quoting Advisory Committee Notes, 2000 Amendments, Fed. R.

Evid. 702); see also Arista Recs. LLC, 2011 WL 1674796, at *2 (“The court must ensure that the

expert will actually be testifying on issues or subject matters within his or her area of expertise.”)

(quotation omitted).9

Finally, Defendants contend that Mr. Gale should be precluded from testifying that a ski

trail “is not limited to the groomed surface” because he previously testified “on multiple occasions

that there is a difference between grooming beginner and expert trails.” Dkt. No. 83 at 16 (citing

Dkt. No. 83-6 at 4-5 (opining that advanced skiers “may prefer to ski in the ungroomed portion of

the trail” and “[b]eginner and intermediate skiers often look for and seek out groomed trails”)).

The Court finds that Mr. Gale’s previous testimony is insufficient to preclude him from testifying

9 The Court notes, however, that Mr. Gale is not a physician, and therefore, he would not be

qualified to testify as to the cause of Plaintiff’s injuries. See Grajeda, 2023 WL 2613543, at *5

(finding that testimony of a ski safety expert was mere conjecture as to causation of a ski accident

because the expert was not a doctor, and based his opinion on a review of discovery documents).

whether a ski trail is limited to the groomed surface. Accordingly, Defendants’ motion in limine

to preclude or limit Mr. Gale’s testimony is denied.

IV. CONCLUSION

Accordingly, the Court hereby

ORDERS that Plaintiffs motion in limine, Dkt. No. 90, is DENIED; and the Court further

ORDERS that Defendants’ motion in limine, Dkt. No. 83, is DENIED in part and

RESERVED in part; and the Court further

ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the

parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: May 9, 2024 Quel . Jara’ A

Albany, New York Anne M. Nardacci

U.S. District Judge

14