Krantz v. Steiler

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DREW KRANTZ, No. 4:21-CV-01217

Plaintiff, (Chief Judge Brann)

v.

SCOTT STEILER and MARKET

STREET INVESTMENT

CORPORATION, INC.,

Defendant.

MEMORANDUM OPINION

APRIL 5, 2024

I. BACKGROUND

In May 2021, Plaintiff Drew Krantz visited Adrien Crastes’ apartment at 220

South Seventh Street, Lewisburg, Pennsylvania.1 Krantz and others decided to

install a window air conditioning unit in Crastes’ window.2 But when Krantz tried

to open the window, the windowpane broke and fell on his wrist, causing the injury

which prompted this lawsuit.3

In July 2021, Krantz filed a one-count Negligence complaint against Scott

Steiler.4 In December 2021, Krantz amended his complaint and added Market

1 Memorandum, Doc. 43 at 1-2.

2 Defendants’ Statement of Undisputed Facts, Doc. 39 ¶5; Krantz Response to Statement of

Undisputed Material Facts, Doc. 41 ¶5.

3 Defendants’ Statement of Undisputed Facts, Doc. 39 ¶¶6-7; Krantz Response to Statement of

Undisputed Material Facts, Doc. 41 ¶¶6-7.

Street Investment Corporation, Inc. (“Market Street”), which owns the premises, as

a defendant.5 This Court granted Steiler’s motion for summary judgment and

denied Market Street’s in May 2023; Steiler was dismissed from the case.6 In

January 2024, this Court issued a scheduling order setting trial to begin on May 6,

2024.7

Market Street and Krantz both filed motions in limine in February 2024.8

The motions are now ripe for disposition. For the reasons stated below, Krantz’s

motion is granted in full, and Market Street’s motion is granted in part and denied

in part.

II. LAW

“Motions in limine are made prior to trial or the presentation of evidence in

order to aid the clear presentation of evidence.”9 Motions in limine are “designed

to narrow the evidentiary issues for trial and eliminate unnecessary trial

interruptions.”10

The admissibility of expert testimony is governed by Federal Rule of

Evidence 702. “As gatekeeper, a trial judge has three duties: (1) confirm the

witness is a qualified expert; (2) check the proposed testimony is reliable and

5 Amended Complaint, Doc. 17.

6 Order, Doc. 44.

7 Scheduling Order, Doc. 58.

8 Market Street Investment Corporation Motion in Limine, Doc. 59; Krantz Motion in Limine,

Doc. 61.

9 United States v. Ramsey, No. 19-268, 2021 U.S. Dist. LEXIS 192115, at *1 (E.D. Pa. Oct. 5,

2021).

10 Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990).

relates to matters requiring scientific, technical, or specialized knowledge; and (3)

ensure the expert’s testimony is ‘sufficiently tied to the facts of the case,’ so that it

‘fits’ the dispute and will assist the trier of fact.”11 “The proponent of the expert

testimony bears the burden to show by a preponderance of the evidence that their

expert’s opinion is reliable.”12

The admissibility of expert testimony is often tested through a so-called

Daubert hearing, at which experts elaborate upon their methodologies. However,

whether a court should hold a Daubert hearing “rests in the sound discretion of the

district court,” and a Daubert hearing is not always required.13 In this matter, the

Court will not hold a Daubert hearing because “[t]here is a full record before the

Court on th[ese] issues including [Brian Krason’s] expert report and deposition.”14

Krason has provided sufficient responses in his deposition testimony for this Court

to rule upon each of the contested issues presented by these motions in limine.

11 UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832 (3d Cir.

2020) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993)).

12 Whyte v. Stanley Black & Decker, Inc., 514 F.Supp. 3d 684, 691 (W.D. Pa. 2021).

13 Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir. 1999).

14 States v. Fernwood Hotel & Resort, No. 12-0906, 2014 U.S. Dist. LEXIS 4997 (M.D. Pa.

Jan. 15, 2014); Oddi v. Ford Motor Co., 234 F.3d 136, 154 (3d Cir. 2000) (Upholding district

court’s decision to deny Daubert hearing where court “already had before it the depositions

and affidavits of the plaintiff’s experts.”).

III. ANALYSIS

During discovery, Market Street obtained Drew Krantz’s scholastic records

from Bucknell, including documents referencing disciplinary action against

Krantz.15 Krantz’s motion in limine seeks to preclude any mention of these

disciplinary actions.16 Market Street does not oppose Krantz’s motion and consents

to Krantz’s proposed order precluding it from offering any evidence, or eliciting

any testimony, relating to such incidents and disciplinary actions.17 So Krantz’s

motion is granted.

Market Street’s motion in limine seeks to preclude the testimony of Brian

Krason, one of Krantz’s expert witnesses, on four matters. First, Market Street

moves to preclude Krason’s testimony on medical causation, as Krason’s lack of

any medical expertise makes him unqualified to offer medical testimony about

Krantz’s injuries.18 Krantz agrees and states that he never intended to offer any

such expert testimony from Krason in the first place; “Plaintiff is relying on actual

medical experts for this purpose.”19 Therefore, Market Street’s motion in limine is

granted as to Krason’s testimony on medical causation.

15 Krantz Motion in Limine, Doc. 61 ¶¶ 4-5.

16 Id. ¶10.

17 Market Street Investment Corporation Brief in Opposition, Doc. 63 at 1.

18 Market Street Investment Corporation’s Motion in Limine, Doc. 59 ¶6.

19 Krantz’s Brief in Opposition, Doc. 64 at 3.

Market Street’s motion in limine also moves “to preclude Krason from

offering opinions and/or testimony regarding tempered safety glass; adequacy of

inspections; [and] the condition of the subject window.”20

The parties do not dispute Krason’s qualifications. Krason has forty years of

experience in the real estate and property management field, and “practical

experience, even without relevant formal education, can be enough to qualify a

witness as an expert.”21 Krason’s real estate and property management experience

give him “skill or knowledge greater than the average layman” that is relevant to

the issue of property management, so Krason is qualified to be an expert.22

The main issue is reliability. Expert testimony need not have “the best

foundation, or even . . . [be] supported by the best methodology or unassailable

research.”23 But “[t]o ensure that the [expert’s] criteria ‘is truly a methodology,

rather than a mere conclusion-oriented selection process . . . there must be a

scientific method of weighting that is used and explained.’”24

20 Market Street Investment Corporation Motion in Limine, Doc. 59 ¶6.

21 Whyte, 514 F.Supp. at 693 n.3.

22 Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000) (cleaned up).

23 UGI Sunbury, 949 F.3d at 834.

24 In re: Zoloft (Sertraline Hydrocloride) Prods. Liab. Litig., 858 F.3d 787, 796 (3d Cir. 2017)

(quoting Magistrini v. One Hour Martinizing Dry Cleaning, 68 F.App’x 356, 607 (3d Cir.

2003)); see also Pineda v. Ford Motor Co., 520 F.3d 237, 247-48 (3d Cir. 2008)) (listing

eight factors traditionally used to evaluate the reliability of expert testimony).

The reliability of an expert witness’s methodology is typically evaluated

based on eight factors.25 But “there may be some circumstances where one’s

training and experience will provide an adequate foundation to admit an opinion

and furnish the necessary reliability to allow a jury to consider it.”26 “Many factors

of the Daubert reliability test are not applicable when a non-scientific expert’s

methodology is being scrutinized,”27 because the reliability of testimony from a

practical experience expert “depends heavily on the knowledge and experience of

the expert, rather than the methodology or theory behind it.”28

This does not mean that anything goes when an expert testifies based on

training and experience. “[N]othing in either Daubert or the Federal Rules of

Evidence requires a district court to admit opinion evidence that is connected to

existing data only by the ipse dixit of the expert.”29 “When an expert relies ‘solely

or primarily on experience,’ he must explain ‘how that experience leads to the

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

25 See Elcock, 233 F.3d at 745-46 (“(1) whether a method consists of a testable hypothesis; (2)

whether the method has been subject to peer review; (3) the known or potential rate of error;

(4) the existence and maintenance of standards controlling the technique’s operation; (5)

whether the method is generally accepted; (6) the relationship of the technique to methods

which have been established to be reliable; (7) the qualifications of the expert witness

testifying based on the methodology; and (8) the non-judicial uses to which the method has

been put.”) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994)).

26 Oddi, 234 F.3d at 158.

27 Equinox Properties, LLC, No. 21-cv-15929 (RBK/AMD), 2023 U.S. Dist. LEXIS 148946, at

*4 (D.N.J. Aug. 24, 2023).

28 United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000).

29 G.E. v. Joiner, 522 U.S. 136, 146 (1997).

how that experience is reliably applied to the facts.”30 “The gate-keeping function

of the trial court requires more than merely ‘taking the expert’s word for it.’”31

A. Adequacy of Keystone COG’s Inspection

Defendants object to the following observations in Krason’s report:

5. The failure by Defendants to properly inspect the window where

Mr. Krantz was injured was a reckless disregard for the safety of the

tenants and guests and indicates the complete disconnect between the

Defendants’ duties for safe property maintenance and their actual

actions in ensuring safety of tenants and guests.

15. Scott Stieler and Market Street Investments Corporation violated

common and acceptable industry standards and good practices by

believing that the COG inspection was a thorough property inspection

which caused a condition to exist causing Drew Krantz’s injuries. 32

Here, Krason’s opinion is inadmissible as expert testimony because it does

not assist the trier of fact. Krason’s opinion is simply based on a quotation from

Keystone COG’s website,33 and on the contents of the International Property

Maintenance Code (IPMC) inspection checklist which may or may not have been

used by Keystone COG.34 Krason’s report highlights language from Keystone

COG’s website, stating that “[t]he inspection is limited to observations readily

visible without moving or removing any item” and that Keystone COG performs a

30 In re Lincoln Nat’l COI Litig., 620 F.Supp. 3d 230, 244 (E.D. Pa. 2022) (quoting Fed. R.

Evid. 702 advisory committee’s notes to 2000 amendment); see also Whyte, 514 F.Supp. 3d

at 695-96 (expert conclusions excluded where he provided no explanation of how he applied

experience or methodology to facts of the case).

31 Brown v. Wal-Mart Stores, Inc., 402 F.Supp. 2d 303, 308 (D. Me. 2005) (quoting Fed. R.

Evid. 702 advisory committee’s note).

32 Krason Report, Doc. 59-1 at 12.

33 Id. at 7-8.

34 Krason Dep., Doc. 59-3 at 61:18—62:7; 63:13-19, 68:9-23.

“minimum property maintenance inspection.”35 In opining on the IPMC checklist,

Krason’s reasoning is that because the IPMC checklist does not include any

window inspection beyond ensuring that the windows can open and close, any

inspector using the IPMC checklist did not inspect windows beyond ensuring that

they can open and close.36

Both opinions are facially apparent from reading Keystone COG’s website

and IPMC checklist themselves; they are based on simple intuition.37 Laymen or

property management experts are equally competent to make these observations,

and therefore admitting them as expert testimony has the potential of misleading

the jury.38 Simply reading Keystone COG’s website and inspection checklist

requires no specialized knowledge.39

Krason also testifies that based on his extensive experience working with

inspectors in the city of Philadelphia, such inspectors do not check the windows

other than ensuring that they can be opened for emergency egress.40 But Krason

35 Krason Report, Doc. 59-1 at 7-8.

36 See id. at 68:9-16; see also Exhibits to Krason Deposition, Doc. 59-3 at 128.

37 See Fedor v. Freightliner, 193 F.Supp. 3d 820, 832 (E.D. Pa. 2002) (rejecting expert

opinions “based solely on intuition” and “generalized common sense”).

38 See Sardis v. Overhead Door Corp., 10 F.4th 268, 283 (4th Cir. 2021) (observing that

because “expert evidence can be both powerful and misleading,” “the importance of the

gatekeeping function cannot be overstated”) (quoting Daubert,509 U.S. at 592).

39 See United States v. Dewitt, 943 F.3d 1092, 1096 (7th Cir. 2019) (“If the matter is within the

jurors’ understanding, the expert testimony is not ‘specialized knowledge’ that will ‘help the

trier of fact.’”); LG Electronics v. Whirlpool Corp., No. 08-C-242, 2010 U.S. Dist. LEXIS

91739, at *17 (N.D. Ill. Sep. 3, 2010) (“[S]imply reading these articles does not require any

specialized knowledge or skill.”).

40 See Krason Dep., Doc. 59-3 at 68:12—69:5.

admits that he has no knowledge or experience which would bear upon whether the

inspectors in Lewisburg would inspect windows, beyond what is gleaned from

Keystone COG’s website and inspection checklist. 41 Applying Krason’s testimony

about Philadelphia inspectors is then based on insufficient facts and data;42 it is

speculative and not reliably applied to the facts of this case.

Even assuming that Krason’s experience working with inspectors “up and

down the east coast” using the IPMC checklist43 could provide a reliable,

experience-based foundation for him to understand whether inspectors utilizing

this checklist in Lewisburg would adequately inspect windows, Krason’s opinion

remains speculative and based on insufficient facts and data. Krason admits that he

does not even know whether the Keystone COG inspection conducted at the

property relied upon the IPMC checklist:

Q. It’s a two-page document, and it’s entitled International Property

Maintenance Code, IPMC, Pre-Inspection Checklist. Is this referenced

in your report anywhere?

A. Yeah. I believe, if I remember correctly, that the landlord had his

unit inspected by The Keystone COG.

Q. Okay. Is this the form they used, to your understanding?

A. I don’t know if it’s the exact form, but it is a form.

41 See id. at 65:13—69:5.

42 See Fed. R. Evid. 702(b); Casper v. SMG, 389 F.Supp. 2d 618, 623 (D.N.J. 2005) (“[E]xpert

testimony [is] inadmissible where [the] expert’s ‘opinion is purely speculative, and not

supported by a reliable foundation.’”) (quoting Am. Marine Rail NJ, LLC v. City of Bayonne,

289 F.Supp. 569, 589 (D.N.J. 2003)).

43 See Krason Dep., Doc. 59-3 at 69:3-5.

Q. What did you – did you reference this document in your report?

A. Yeah.”44

Therefore, Krason’s testimony that Keystone COG’s inspection did not

ensure that the windows were free of safety hazards is inadmissible. Of course, this

does not prevent Krason from testifying about the frequency or intensity of

inspections required for safe property management based on his own experience in

the industry; it merely prevents him from rendering an expert opinion as to the

thoroughness and contents of Keystone COG’s inspection specifically, because this

opinion is based almost solely upon the clearly observable contents of its website

and the IPMC inspection checklist.

B. Tempered Safety Glass

Likewise, Krason opines that tempered glass is the industry standard for

property managers. But because an industry standard describes generally accepted

requirements, it cannot be reliably demonstrated by personal experience alone,

even by a qualified and experienced expert. “Where plaintiff seeks to prove

deviation from an industry standard . . . that standard must be shown through

suitable industry-wide practice.”45

44 Id. at 61:18--62:7.

45 See Mendler v. Aztec Motel Corp., Civil No. 09-2136 (JBS/JS), 2011 U.S. Dist. LEXIS

140928, at *4 (D.N.J. Dec. 7, 2011).

Krason states in his deposition that he personally tells landlords to replace

windows with float glass, and that every apartment building he has managed has

either installed tempered safety glass “over time, or there was a plan through a

reserve study to replace those windows.”46 But this personal experience still does

not justify expert testimony that installing tempered safety glass is a “best practice”

in the property management industry; it only speaks to Krason’s own practice.

When asked if any code requirements would mandate replacing the float

glass used in the residence, Krason states that “it’s a nonregulated business, so

there are no particular codes.”47 And, Krason admitted that he is not aware of “any

building codes anywhere that require tempered safety glass in apartment

buildings;”48 that he has no “sense for how many apartment units use tempered

safety glass versus how many don’t;”49 that the organizations referenced in his

report make no direct comment on whether using tempered safety glass is an

industry standard;50 that these organizations promulgated no specific standard or

recommendation that windows in apartment units should only employ tempered

safety glass;51 and that he cannot point to a single authoritative source that says that

regular glass should not be used in windows in apartment buildings.52

46 Krason Dep., Doc. 59-3 at 61:3-7.

47 Id. at 60:21-22.

48 Id. at 60:23—61:2.

49 Id. at 65:2-5.

50 Id. at 83:9-13.

51 Id. at 84:5-9.

52 Id. at 85:8-11.

Conceding that he is aware of no source opining on the merits of float glass

or tempered safety glass at all, Krason contends that he has nevertheless supported

his opinion with industry standards, but states: “[t]he only standard would be that

they [the windows] have to be safe.”53 That conclusory “standard” neither requires

technical knowledge nor assists the fact-finder. The issue in need of support is not

whether windows must be safe; it is what conditions render them safe. Krason

skips the important step: explaining the basis on which he concludes that tempered

safety glass is the industry standard for property managers.

Any testimony Krason may offer that tempered safety glass is an industry

standard among property managers is therefore unreliable. Krason may not testify

that tempered safety glass is the industry standard. That does not, however, prevent

him from testifying that safety glass is safer than float glass.

C. Condition of Windows

Market Street contests the following conclusion in Krason’s report: “The

window at 220 South 7th Street, Lewisburg exhibited signs of inadequate

maintenance, including dry rotting framing and allowed the dangerous condition to

exist causing Mr. Krantz’s injury.”54

53 Id. at 84:5-10.

54 Krason Report, Doc. 59-1 at 10.

This Court faced a similar expert testimony issue in States v. Fernwood

Hotel & Resort.55 The plaintiff in States was a patron in a restaurant enclosed in a

“greenhouse-like structure, with double pane glass windows comprising the walls

and the roof.”56 He sued for negligence when a falling pane of glass hit his head,

and his expert witness, who had worked in the glass business for thirty-nine years,

supported his opinion with extensive and closely relevant experience: the expert

had worked as a glazier, had run companies engaged in glass installation, had

attended annual classes in the glass field, had overseen and troubleshooted glass

installation projects, had worked with glass and similar greenhouse structures, and

had trained over 200 apprentice glaziers.57

That expert’s report analyzed photographs of the scene of the accident,

witness depositions, and the plaintiff’s medical records.58 He determined that the

glass had not been properly maintained, and that the glass was “abused by drilling

holes, hanging chains and hooks, a bar attached to the structure, leaking thermos

seals, temperature fluctuations and a lack of maintenance, and that this abuse

weakened the structure, causing the glass pane to fall.”59

Sitting by designation in the Middle District of Pennsylvania, Judge Joel H.

Slomsky explained that “many of the factors” traditionally relied upon to gauge

55 2014 U.S. Dist. LEXIS 4997.

56 Id. at *1-2.

57 Id.

58 Id. at *4.

59 Id. at *3-4

reliability in this Circuit, “peer review, publication, potential rate of error, general

acceptance, standards controlling the technique’s operation, and the relationship of

the technique to reliable methods—do not apply” to the expert’s testimony.60

Instead, the Court looked to two factors: the expert’s “qualifications and the non-

judicial uses to which his opinions had been put.”61 The States court explained that

the expert “rendered his opinion after a careful review of the evidence,” supported

“by his understanding of glass products” based on his extensive career

experience.62 The Court was further “impressed” by the expert’s experience with

the kind of glass at issue in the case, his experience with the greenhouse-like

structures at issue in the case, and with the fact that his opinions had been

requested in the non-judicial context when he was brought on as a consultant for

glasswork in homes and offices.63

It is obvious that Krason’s expert report alone is insufficient to render his

opinion reliable; he delivers no explanation of his experience inspecting windows

or of how he applied that experience to determine that this window was unsafe

because it was improperly maintained.

However, Krason’s deposition testimony fills these gaps, demonstrating his

relevant experience, the non-judicial contexts in which he has evaluated the safety

60 Id. at *9.

61 Id.

62 Id. at *9

63 Id. at *10.

of residential windows, and his explanation as to how improper maintenance

contributed to the accident. Krason has experience in the construction management

of small projects including window replacements,64 he was a member of the

Institute of Real Estate Management for more than ten years,65 and he has worked

closely with many building inspectors in his capacity as a property manager.66

Krason also developed a lengthy checklist of items to inspect in an apartment,67

used by himself and his managers.68 And like the expert in States, Krason has put

his inspection expertise to non-judicial uses during his long career. In the course of

his 43 years as a property manager in commercial and residential contexts,69

Krason had occasion to inspect properties, recommend repairs, review the

conditions of windows and their safety, and recommend the replacement or repair

of windows when he deemed them unsafe.70

While Krason’s experience is certainly less specialized than that of the glass

expert in States, his 43 years of experience do encompass identifying unsafe

windows in residential apartments, and that experience is therefore still sufficiently

specialized under Rule 702.71 Krason has applied his experience and provided an

64 Doc. 59-3 at 8:21-13

65 Id. at 44:12-16.

66 Id. at 67:11-12, 68:18-19, 69:3-4.

67 Id. at 62:16-17.

68 Id. at 53:2-17.

69 Doc. 59-2.

70 Id. at 97:1-16.

71 See Lauria v. AMTRAK, 145 F.3d 593, 599 (3d Cir. 1988) (In negligence case against

railroad where plaintiff injured himself after tripping over wood near dimly lit track, former

explanation of how he identified that these windows were improperly maintained

and unsafe. Analyzing several pictures of the windows, Krason explains that

several gaps in the wood indicate that the window frame is rotted, most observably

at the corners.72 This rot increased the gap in the wood around the window glass,

allowing the window frame to “shimmy” and contributing to the glass eventually

breaking and causing Krantz’s injury.73 Krason’s experience and explanation are

sufficient for the Court to conclude that he is applying a reliable experience-based

methodology to his conclusions regarding the condition of the window, based on a

preponderance of the evidence.

Although Market Street contends that Krason has not applied any

methodology in its brief,74 Market Street does not otherwise explicitly object to

Krason’s methodology for evaluating the condition of the window.75 Instead,

Market Street mainly argues that he has not reliably applied his methodology to the

facts of this case.

foreman’s testimony on required precautions was sufficiently specialized “given [foreman’s]

twenty years of experience in track maintenance, operations, and safety, and given the nature

of his opinion and the liberal standard by which we interpret reliability under Rule 702.”).

72 Krason Dep., Doc. 59-3 at 64:9-18; 76:16-18; 78:8—82:1; 98:21—99:7.

73 Id. at 79:21—80:21; 98:21—99:7; 100:9-17.

74 See Market Street Investment Corporation Brief in Support, Doc. 60 at 12 (“Krason’s opinion

as to the condition of the window and that rot was present, is not based on any personal

inspection of the window, or any other viable methodology.”).

75 See Mornan, 413 F.3d at 380 (“Deference to the trial judge is particularly warranted where

the defendant does not object to the admissibility of the expert’s testimony . . . . Where the

opposing party does not sufficiently call these issues into question, we will not find plain

error merely because the District Court did not conduct an extensive Daubert analysis on the

record.”).

First, Market Street objects that because Krason equivocated on his views

during his deposition, he has unreliably applied his methodology for inspecting the

condition of windows to the facts of this case. Specifically, Krason testified several

times that he saw “what appears to be rot” on the window frame.76 Krason also

“guesstimated” that the gap caused by rot in the window corners was about an

eighth of an inch, which “means that the glass can now move and shimmy,”

creating a dangerous condition.77 Finally, in describing the window frame visible

in one specific photograph, Krason states: “the side needs to be – I can’t tell if it’s

rot, but the paint is chipped.”78

In sum, Krason’s testimony is that a gap in the window framing, likely

caused by rot, allowed the glass to move and contributed to Krantz’s accident.

Whether or not the gap was caused by rot, and whether or not Krason’s

“guesstimation” as to the gap’s size is slightly too large or small, his testimony is

the same; allowing the gap to persist created an unsafe condition.

Krason’s minor equivocations over the rot and size of the gap do not render

that testimony unreliable in any event. Proponents of expert testimony “do not

have to demonstrate to the judge by a preponderance of the evidence that the

assessments of their experts are correct, they only have to demonstrate by a

preponderance of evidence that their opinions are reliable . . . The evidentiary

76 See Doc. 59-1 at 14:10-13; 76:15-18.

77 Id. at 100:9-17.

78 Id. at 80:15-16.

requirement of reliability is lower than the merits standard of correctness.”79 For

that reason, “[e]xpert witnesses need not be subjectively certain or totally

convinced about their opinions for the testimony to be admissible.”80

In United States v. Mornan, for example, a handwriting expert was asked on

cross-examination whether her opinions were rendered to “a reasonable degree of

scientific certainty,” and the District Court properly admitted her testimony even

though the expert responded, “I think they are.”81 In contrast, while it is true that

expert witness testimony based on mere speculation is inadmissible, expert

opinions are only speculative where they lack factual basis or reasoning.82 Here,

Krason’s mild uncertainty is no different from that of the handwriting expert in

Mornan. His opinion is not undermined by a lack of information, and it is not

undermined by a failure to articulate any reasoning. So Krason’s opinion is not

unreliable due to these cherry-picked deposition quotations.

Market Street also objects that Krason’s report is based off insufficient facts

or data83 because Krason does not know when, or by whom, the photographs of the

79 In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994). See United States ex rel.

Druding v. Druding, 952 F.3d 89, 98 (3d Cir. 2020) (“The ‘reliability and believability of

expert testimony . . . is exclusively for the jury to decide.’”) (quoting United States v. Paulus,

894 F.3d 267, 277 (3d Cir. 2018)).

80 4 WEINSTEIN’S FEDERAL EVIDENCE § 702.05.

81 413 F.3d 372, 380-81 (3d Cir. 2005).

82 See, e.g., Ucciardi v. E.I. Du Pont Nemours & Co., Civ. No. 13-4952, 2016 U.S. Dist. LEXIS

174715, at *5 (D.N.J. Dec. 19, 2016); Major League Baseball Props., Inc. v. Salvino, Inc.,

542 F.3d 290, 311 (2d Cir. 2008).

83 Fed. R. Evid. 702(b).

window were taken.84 But the photographs were obviously taken after the accident

and before the window was repaired; they show that the glass is still broken.85 So

these objections are also without merit.

D. Prior Expert Witness Testimony

Federal Rule of Civil Procedure 26(a)(2)(B)(v) provides that an expert

witness’s report “must contain . . . a list of all other cases in which, during the

previous 4 years, the witness testified as an expert at trial or by deposition.” Under

Federal Rule of Civil Procedure 37(c)(1), “[i]f a party fails to provide information

or identify a witness as required by Rule 26(a) or (e), the party is not allowed to

use that information or witness to supply evidence on a motion, at a hearing, or at a

trial, unless the failure was substantially justified or is harmless.”

In his deposition, Krason directly states that he does not have a list of cases

in which he has testified, despite testifying “10 to 20 times” at trial and “25, 30”

times in depositions.86 But Krason also states that “[w]ith COVID, I have not

testified in [the last] five years;” Krantz’s counsel stated in the deposition that “[i]f

there are any [cases in which Krason has testified in the last four years], “we’ll put

that together and get that to you.”87 In a footnote to Market Street’s Brief in

Support, it states that it “has not yet been provided with a copy of Mr. Krason’s

84 Market Street Investment Corporation’s Brief in Support, Doc. 60 at 12.

85 See Exhibits to Krason Dep., Doc. 59-3 at 131-149.

86 Doc. 59-3 at 26:24—27:20

87 Doc. 59-3 at 31:7-18.

testimony history pursuant to Fed. R. Civ. P. 26(a)(2)(B)(v), despite repeated

requests for the information.”88 Krantz provides no response to this statement in its

Brief in Opposition.89

Even though Krason’s CV states that he “offer[s] Premises Liability

Opinions” and is “experienced in depositions and being questioned on the stand in

front of a jury,”90 Krason makes no statement in his expert report that he has not

testified in any cases within the last four years. Nor, apparently, has Krantz’s

counsel confirmed this fact to Market Street, at least as of the time that Market

Street filed its motion in limine. Although there would ordinarily be no cause for

the Court to raise this issue sua sponte, Market Street’s briefing and Krason’s

deposition testimony show that Krantz has failed to verify Krason’s case history, or

lack thereof, to Market Street.

Accordingly, Krantz must either provide a list of the matters in which

Krason has testified within the last four years, or else certify to Market Street that

he has not testified in any matters within the last four years, within seven days

from the date of this Memorandum Opinion and Order. If Krantz fails to do so, this

may provide grounds for Krason’s testimony to be excluded in full.

88 Market Street Investment Corporation Brief in Support, Doc. 60 at 2 n.2.

89 See generally Krantz Brief in Opposition, Doc. 64.

90 Doc. 59-2.

IV. CONCLUSION

Krantz’s motion in limine is granted in full, and Market Street’s motion in

limine is granted in part and denied in part. Krason may testify as to his opinion

that the window at issue was in poor condition, but he may not offer expert

testimony that tempered safety glass is an “industry standard” among property

managers or that Keystone COG’s inspection did not reach the windows.

Additionally, Krantz must either provide to Market Street a list of the matters in

which Krason has testified within the last four years, or else verify that Krason has

not so testified, within seven days.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge