PERCIBALLI

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

PIERINO PERCIBALLI and BRIGIDA R.

PERCIBALLI, h/w

Plaintiffs,

v.

MOUNTAIN CREEK RESORT INC.; Case No. 2:23-cv-00948 (BRM) (SDA)

MOUNTAIN CREEK MANAGEMENT,

LLC; GREAT GORGE; SNOW CREEK, LLC OPINION

D/B/A MOUNTAIN CREEK RESORT, INC.,

SNOW OPERATING, LLC; SNOW

PARTNERS, LLC; JOHN DOE SKI RESORT

OPERATORS (1-5); JOHN DOE SKI

RESORT MAINTENANCE COMPANIES (1-

5); JOHN DOE SKI RESORT INSPECTION

AND SAFETY COMPANIES (1-5),

Defendants.

MARTINOTTI, DISTRICT JUDGE

Before this Court is Defendants’ Motion to Preclude (ECF No. 76) Plaintiffs’ expert

witness, Richard Penniman (“Penniman”), brought by Mountain Creek Resort Inc.; Mountain

Creek Management, LLC; Great Gorge; Snow Creek, LLC D/B/A Mountain Creek Resort, Inc.,

Snow Operating, LLC; Snow Partners, LLC, alongside one to fifteen as-of-yet unidentified

defendants who are “entities or persons that maintained, controlled, constructed, inspected,

designed, repaired, and/or monitored the Mountain Creek Resort, . . . controlled, monitored,

inspected, and/or observed the ski trails and skiing activities at Mountain Creek Resort . . . (and/or)

controlled, monitored, inspected, and/or observed the ski trails and skiing activities at Mountain

Creek Resort” (collectively, “Mountain Creek”) (Compl. (ECF No. 1) ¶¶ 32–34). Mountain Creek

submitted a brief in support of its motion, (Mountain Creek’s Daubert Br. (ECF No. 76-6)) seeking

to preclude Penniman from testifying as an expert and to exclude sections of his report from being

offered as evidence (Expert Opinion Report of Penniman (the “Penniman Report”) (ECF No. 76-

3)). As part of the same brief, Mountain Creek seeks discovery sanctions due to an alleged violation

of the Federal Rules of Civil Procedure (“Rule” or “Rules”). (ECF No. 76-6 at 3).

Plaintiffs, Pierino Perciballi (“Mr. Perciballi”) and his wife Brigida R. Perciballi (“Mrs.

Perciballi”) (collectively, “Plaintiffs,”) filed a response brief, opposing both preclusion of

Penniman and any discovery sanctions. (ECF No. 78.) Mountain Creek timely replied. (ECF No.

80.) Having reviewed and considered the submissions filed in connection with the motion, and

having declined to hold oral argument pursuant to Fed. R. Civ. P. 78(b), for the reasons set forth

below and for good cause appearing, Mountain Creek’s Daubert Motion is GRANTED IN PART

and DENIED IN PART.

I. BACKGROUND

A. Factual Background

This case arises from a skiing accident that occurred at Mountain Creek’s ski resort (“the

Resort”). (ECF No. 1 ¶¶ 1 & 4; Ans. (ECF No. 12) ¶¶ 1 & 4.) On February 21, 2021, Mr. Perciballi

and his sixteen-year-old son Matteo Perciballi chose to ski down the Matchmaker trail (id. ¶ 50),

an intermediate difficulty terrain park course contained within the Resort (Pls.’ Br. Ex. A. (ECF

No. 79-4)). The Matchmaker trail is adjacent to the Resort’s “learning area.” (Id.) Mountain Creek

uses blue, mesh fencing to separate Matchmaker trail from the learning area. (ECF No. 1 ¶¶ 1–4;

Mountain Creeks’ Statement of Undisputed Facts (ECF No. 77-12) ¶ 3.) In his descent down

Matchmaker trail, Mr. Perciballi collided with this blue fencing, tangling his legs and violently

falling to the ground. (ECF No. 1 ¶¶ 67–69.) This collision caused him to sustain significant

injuries, requiring four days of hospitalization and leaving him with an ongoing disability. (ECF

No. 1 ¶¶ 76–77 & 83–84.)

It is the blue fencing Mr. Perciballi collided with which is the subject of the parties’ factual

disputes. According to Plaintiffs, the blue fencing was down for an indeterminate amount of time

before Mr. Perciballi’s accident due to a negligent pattern of conduct wherein Mountain Creek did

not inspect or maintain the condition of the fencing over the course of the day. (ECF No. 1 ¶ 93.)

Plaintiffs also argue that the color of the fencing deviates from the industry’s safety standards,

which they claim require highly visible, brightly colored fencing. (Penniman Report at 4.) Finally,

Plaintiffs believe the Resort itself was negligently designed by placing the learning area adjacent

to an intermediate slope, requiring the erection of a hazardous obstacle, namely the blue fencing,

to prevent skiers from crossing into the other area. (ECF No. 1 ¶ 93.)

Mountain Creek disputes Plaintiffs’ characterization. It agrees that it has placed blue

fencing between the courses as a necessary safety precaution—as required and immunized by the

New Jersey ski statute. (ECF No 77-12 ¶¶ 16–19 (citing N.J. Stat. Ann. 5:13-3(b)(3)).) Mountain

Creek maintains that the use of blue fencing is within the standards of North American ski resorts

and that its employees are trained to monitor and remove hazards—including downed fencing—

from its courses at all times. (ECF No. 79-12 ¶¶ 14–19.)

B. Procedural Background

Plaintiffs filed this case on February 17, 2023, alleging two causes of action: (1) negligent

management and design of the Resort resulting in Mr. Perciballi’s injuries, and (2) loss of

consortium on behalf of his wife Mrs. Perciballi. (ECF No. 1 ¶¶ 86–98). Mountain Creek answered

on April 20, 2023, denying all claims but not moving to dismiss. (ECF No. 12.) Fact discovery

ended September 11, 2024, (Amended Pretrial Scheduling Order (ECF No. 51)) and expert

discovery concluded March 12, 2025 (Letter from Edward J. Turro Esq. (ECF No. 63)). The parties

submitted their dispute to mediation but were unable to resolve their different positions on liability

and damages. (ECF No. 69.) Thereafter, Mountain Creek moved to preclude the testimony and

expert report of Richard Penniman (ECF No. 76), and further moved the Court for summary

judgment on all claims (ECF No. 77). Plaintiffs filed responses, arguing Penniman’s testimony

and report were admissible (ECF No. 78), and that summary judgment was not warranted (ECF

No. 79). Mountain Creek filed a reply brief in support of precluding Penniman (ECF No. 80), and

in favor of summary judgment (ECF No. 81).

II. LEGAL STANDARD

Generally, relevant evidence is admissible at trial. Fed. R. Evid. 402. Evidence is relevant

if: “(a) it has any tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. The

court, however, may preclude relevant evidence from trial where its “probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.” Fed. R. Evid. 403. “The Federal Rules of Evidence embody a ‘strong and undeniable

preference for admitting any evidence having some potential for assisting the trier of fact.’”

Holbrook v. Lykes Bros. Steamship Co., Inc., 80 F.3d 777, 780 (3d Cir. 1996) (quoting DeLuca v.

Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941 (3d Cir.1990)).

Federal Rule of Evidence (“FRE”) 702 governs the admissibility of expert testimony, and

carries forward the “liberal policy of admissibility,” for evidence. Kannankeril v. Terminix Intern.,

Inc., 128 F.3d 802, 806–07 (3d Cir. 1997). These rules require “district courts perform a

gatekeeping function to ensure that expert testimony meets the requirements of FRE 702. That

function extends not only to scientific testimony, but also to other forms of ‘technical’ or

‘specialized’ knowledge.” Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 80 (3d Cir. 2017).

However, “the test of admissibility is not whether a particular scientific opinion has the best

foundation . . . [r]ather, the test is whether the ‘particular opinion is based on valid reasoning and

reliable methodology.’” In re TMI Litig., 193 F.3d 613, 665 (3d Cir. 1999), amended, 199 F.3d

158 (3d Cir. 2000) (quoting Kannankeril, 128 F.3d at 806). The Third Circuit provides the court

with the following factors to determine whether an opinion is sufficiently reliable to be admitted:

(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.

Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quoting In re Paoli

R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir.1994)) (the “Daubert factors”). These factors “are

neither exhaustive nor applicable in every case.” Kannankeril, 128 F.3d at 806. Instead, they are

flexible starting point for the court to address the ultimate questions of “qualifications, reliability,

and fit.” Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 80 (3d Cir. 2017) (quoting Elcock v.

Kmart Corp., 233 F.3d 734 (3d Cir. 2000)).

III. DECISION

A. Penniman’s unannounced inspection of the Mountain Creek Resort does not

justify barring his testimony.

Mountain Creek’s first argument against the admissibility of Penniman’s decision does not

challenge the sufficiency or applicability of his expertise, rather it asks the Court to exclude

Penniman’s opinion as a sanction for failing to follow Rule 34. (ECF No. 76-6 at 3.) In his

deposition, Penniman admitted to taking an unannounced trip to the Resort in March 2023, where

he conducted an examination of the Resorts’ grounds to assess the site of the accident and the

Resort’s safety procedures in general. (Penniman Dep. (ECF No. 76-4) at 12:3–17:9.)

At the time of his inspection, the Resort was open to the public—Penniman purchased a

lift ticket and used various paths and trials while taking pictures and making observations for his

report. (Id. at 13:14–14:17.) In unrebutted testimony, other than bringing equipment for his

inspection, Penniman acted as any other visitor to the Resort would, and he was never questioned

about his presence at the park while conducting his evaluation. (Id. at 15:5 – 17:14.)1 In his role

as an expert, Penniman has been candid with the parties and the Court about the fact he provided

no notice of his inspection, his motive for acting anonymously (to avoid a defendant making

special preparations in advance of his visit), and that this is his regular practice when conducting

an examination. (Id.)

When determining whether to impose a discovery sanction, the movant must first show

that there has been a violation of the rules of discovery or the orders of the court. Gloucester Twp.

Bd. of Educ. v. E.N., Civ. A. No. 22-6568, 2024 WL 4834851, *5 (D.N.J. Nov. 19, 2024) (“Because

no sanctionable discovery violation occurred, the circumstances present no attendant need for a

remedy.”). If there is a violation, the Court will then assess “whether the exclusion of evidence is

an appropriate sanction for failure to comply with discovery duties” using the Pennypack factors.

1 Penniman also testified he walked around and took pictures near the base of the resort, and where

the accident happened. (Id. at 13:14–14:17.) Ski resorts are typically in scenic locations, where

guests often take pictures. Accordingly, neither Mountain Creek nor the National Ski Areas

Association has a policy against photography or videography at the Resort, so long as it is done

safely. See Mountain Creek, Mountain Safety, MOUNTAINCREEK (2025)

https://mountaincreek.com/skiing-riding/mountain-safety/ [https://perma.cc/D6S3-PTUV], see

also Mountain Safety National Ski Areas Association, Your Responsibility Code (2022)

https://www.nsaa.org/NSAA/Safety/Your_Responsibility_Code.aspx [https://perma.cc/6AKK-

C8JU].

Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir. 2000) (citing Konstantopoulos

v. Westvaco Corp., 112 F.3d 710 (3d Cir. 1997). The five Pennypack factors are:

(1) the prejudice or surprise in fact of the party against whom the

excluded witnesses would have testified” or the excluded evidence

would have been offered; (2) “the ability of that party to cure the

prejudice”; (3) the extent to which allowing such witnesses or

evidence would “disrupt the orderly and efficient trial of the case or

of other cases in the court”; (4) any “bad faith or willfulness in

failing to comply with the court's order”; and (5) the importance of

the excluded evidence.

ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 298 (3d Cir. 2012). “The importance of the

evidence is often the most significant factor.” Id.

Here, Mountain Creek seeks to preclude Penniman “from testifying or providing opinions

that derive in any way from this improper inspection.” (ECF No. 76-6 at 11–13.) A sanction this

broad would effectively strike Penniman’s entire report—a pillar of plaintiff’s case that Mountain

Creek is not immune from suit under the New Jersey Ski Act. (Penniman Report at 3–9.) “The

exclusion of critical evidence is an ‘extreme’ sanction, not normally to be imposed absent a

showing of willful deception or ‘flagrant disregard’ of a court order.” In re Paoli R.R. Yard PCB

Litig., 35 F.3d 717, 791–92 (3d Cir. 1994) (quoting Meyers v. Pennypack Woods Home Ownership

Ass’n, 559 F.2d 894 (3d Cir. 1977)).

Plaintiffs argue there was no need for Penniman to get special permission from Mountain

Creek to investigate a publicly accessible location, even if that location was owned by Mountain

Creek. To support that argument, they cite several cases from outside this jurisdiction where a

party had anonymously inspected the premises of another party’s business. (ECF No. 78 at 14–

15.) In Varner v. Target Corp., the court refused to “exclude [expert] testimony on the basis of

their site inspections.” 2025 WL 475706 at *4 (U.S.D.C. Feb. 12, 2025). The court in Varner noted

that in cases where the evidence had been excluded because of an improper inspection, “[t]he

sanctionable violation . . . was that the respective experts did not have permission to be on the

properties and did not seek permission via Rule 34.” Id. (emphasis added) (citing Baugus v. CSX

Transp., Inc., 223 F.R.D. 469, 470–71 (N.D. Ohio 2004); Trevelyn Enters., LLC v. SeaBrook

Marine, LLC, Civ. A. No. 18-11375, 2020 WL 4437236 at *4 (E.D. La. Aug. 3, 2020)). Though

“the most common and most proper procedure to inspect pursuant to Rule 34 is to coordinate an

expert’s inspection with opposing counsel,” the court held that is not a strict requirement of the

Rules when the expert has permission to enter the location. Varner at *4 n.4; see also Willink v.

Boyne USA, Inc., Civ. A. No. 12-74, 2013 WL 12141324 at *3 (D. Mont. Dec. 20, 2013) (allowing

the inspection of a ski resort, where the resort was “open to and widely used by the public” and

the inspection was of little “risk of injury”).

The Court finds the reasoning of these out-of-district decisions persuasive. Though the

Rules provide procedures by which the parties may seek discovery from the other, they are not

compelled to use them to gather evidence in every situation. Where the information is publicly

available or can be gathered from a party’s own investigations, a party may rely on that evidence

entirely or in combination with discovery. See Fed. R. Civ. P. 26 (b)(1) (“[T]he scope of discovery

is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to

any party's claim or defense and proportional to the needs of the case.” (emphasis added)). Site

inspections are no different, where the expert witness or investigator has permission to enter a

property, they need not seek discovery to compel an inspection. See Grabau v. Target Corp., 2008

WL 616068 at *3 (D. Colo. Feb. 29, 2008) (holding “failure to request an inspection” under Rule

34 is not “a basis for excluding evidence,” because “Rule 34 is permissive rather than

compulsory”).

Mountain Creek’s cited authorities do not suggest otherwise. Its first authority, McConnell

v. Canadian Pacific Realty Co., says nothing on this issue. 280 F.R.D. 188 (M.D. Pa. 2011).

McConnell did not involve an unannounced inspection, rather the court was addressing a dispute

between the parties about the appropriate scope of an inspection requested under Rule 34. Id. at

193 (“[P]laintiff’s current inspection demand, which sets not temporal or topical limitations upon

a physical examination of this property, does not in its current form satisfy Rule 34.”) Though

Trevelyn Enters., LLC v. SeaBrook Marine, LLC, involves an unannounced inspection, it is

distinguishable. Civ. A. No. 18-11375, 2020 WL 4437236 at *2 (E.D. La. Aug. 3, 2020). In

Trevelyn, the defendants’ agent trespassed into a private boatyard to conduct a duplicative

inspection, which plaintiffs had already refused, despite the fact that a motion to permit or deny

this investigation was already pending before the court. Id. at *4. Penniman, by contrast, had

purchased a ticket and therefore had permission to enter the Resort, and was not attempting to

circumvent the Court’s authority in making his inspection. (ECF No. 76-4 at 14:6–17:9.)

However, while Penniman had permission to enter the Resort, buying a ticket does not

confer a boundless right to investigate. Though the plaintiff in Baugus v. CSX Transportation, Inc.,

lacked permission to enter the property, it is nonetheless instructive. 223 FRD 469 (N.D. Ohio

2004). In Baugus, the plaintiff had entered a railyard and took video even though “leave had not

been granted . . . to enter the premises or board the rail cars.” 223 FRD at 471. This, in turn, denied

the parties and court the ability to balance the “degree to which the proposed inspection [would]

aid in the search for truth against the burdens and dangers created by the inspection.” Id. Assessing

safety concerns are not ordinarily an issue where the site of inspection has “opened its premises to

the public,” as the Resort has, with both parties acknowledge skiing is an inherently dangerous

activity. (ECF No. 77-11 at 5–6; ECF No. 79-1 at 33–34.)

Though not argued by Mountain Creek, the Court has concerns regarding the safety of an

unsupervised inspection of an operating ski resort. The Court would prefer parties not generate

additional ski-injury lawsuits while investigating a previous suit. Therefore, the Court holds that

where the premises are open to the public and the inspecting party has permission to enter (and

does not deviate from the parameters of the permission), parties are not required to seek approval

prior to inspection under Fed. R. Civ. P. 34(a)(2), unless the inspection poses a greater, articulable

danger or burden to the business, employees, or other visitors than is expected of a typical visitor.

Applying this rule, Penniman acted in almost every way as an ordinary skier. According to

his testimony, he “walked around the base area . . . where the accident happened,” and brought

equipment for his investigation, namely his “iPhone . . . measuring tape, and . . . a clinometer” app

on the iPhone. (ECF No. 76-4 at 13:14–15:18.) As for his conduct, Penniman bought a lift ticket,

“went skiing,” and observed what the Resort “looks like naturally with the way a customer would

look at it” without “special preparations.” (ECF No. 76-4 at 14:8–17:9.) Mountain Creek does not

allege, nor does Penniman’s testimony or report suggest, he impeded ski traffic, entered restricted

or non-public areas, or otherwise posed a danger to himself or the other skiers. (ECF No. 76-6 at

11–13.) In other words, Penniman’s unannounced inspection was not a discovery violation, and

no sanction is warranted.

Even if Penniman’s inspection was a discovery violation, Mountain Creek did not

sufficiently argue that exclusion was warranted. Whether an expert’s report or testimony should

be excluded due to a violation of the rules of discovery is governed by the Pennypack factors, and

Mountain Creek’s “utter failure to address these factors to any degree in their motion warrants its

denial.” Janssen Pharms., Inc. v. Alkem Lab'ys Ltd., Civ A. No. 23-2939, 2025 WL 2355957, at

*3 (D.N.J. Aug. 14, 2025). Though Mountain Creek claims it is “severely prejudiced” by the

unannounced inspection, the only prejudice it cites is that it was “not present to observe the

inspection,” or able “to document the conditions observed or observable on that date.” (ECF No.

80 at 3; ECF No. 76-6 at 3.) To the degree this qualifies as prejudice, it is fully addressable by

Mountain Creek’s right to cross examine Penniman, have its expert offer contrary evidence, and

conduct inspections of its own. Therefore, Mountain Creek’s Motion to Preclude the Testimony

and Report of Mr. Penniman is DENIED.

B. The Penniman Report is sufficiently reliable to assist the jury and will not be

excluded.

Mountain Creek’s second argument for precluding Penniman’s testimony and report from

the jury is that he lacks a reliable foundation for his opinion. Mountain Creek seeks to exclude the

following topics from Penniman’s opinion: (1) the “use of blue fencing” in the skiing industry;

(2) the role, if any, shadows played in causing the accident; (3) how most North American ski

resorts organize their ski trails; and (4) whether the “progression area” used to train new skiers is

a hazard when placed next to a trail for more experienced skiers. (ECF No. 76-6 at 15, 18, 20, and

22.) The Court addresses each in turn, applying the Daubert factors set forth above (infra at Section

II).

1. Penniman is permitted to testify to the relative advantages of fence coloring

at different ski resorts

In his expert report, Penniman discusses the significance of fencing colors on the safety of

skiing trails. (Penniman Report at 4–5.) According to Penniman, “blue fabric fencing such as that

with which Mr. Perciballi became entangled can be very difficult to discern from shadows on the

snow surface later in the day,” and for that reason the industry standard is that “any fencing, hazard

marking or safety signs be brightly colored and highly visible so as to attract attention.” (Id. at 3.)

However, Mountain Creek believes that this testimony lacks “factual evidence from the record in

this case,” and is instead “based solely on his personal experience and limited discussions with ski

patrollers.” (ECF No. 76-6 at 16.)

The Court disagrees. “In cases not involving scientific testimony . . . ‘relevant reliability

concerns may focus upon personal knowledge or experience,’” and still be permitted under

Daubert. Betterbox Commc’ns Ltd. v. BB Techs., Inc., 300 F.3d 325, 329 (3d Cir. 2002) (quoting

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149–150 (1999)). Mountain Creek correctly points

out (ECF No. 76-6 at 16) that even where an expert is testifying to his or her personal experience,

“expert’s testimony must be accompanied by a sufficient factual foundation.” Gumbs v. Int’l

Harvester, Inc., 718 F.2d 88, 98 (3d Cir. 1983). But Penniman’s report and testimony contain

sufficient foundation. It is uncontested that: (1) Mountain Creek used blue fencing at the time of

the accident (ECF No. 78 at 6; ECF No. 80 at 8); (2) Plaintiffs’ accident happened in the afternoon

(Deposition of Pierino Perciballi (ECF No.77-4 at 60:20–60:25); (3) Penniman made an inspection

of the site of the accident and observed the shadow cover of the area in the afternoon (Penniman

Report at 5; ECF No 76-6 at 4); (4) at least some ski resorts in North America use brightly-colored

fencing (Penniman Report at 5); and (5) Penniman claims, in his professional experience, use of

brightly-colored fencing is standard (ECF No.76-4 at 98:8–12). This is a sufficient factual

foundation whereby a reasonable jury could find that such a standard exists, should they credit

Penniman’s testimony.

2. Penniman may not testify that the shadows ‘caused’ Plaintiffs’ accident.

The Penniman Report also assesses the role that shadows play in terms of hazardous course

conditions while skiing, both in general and in how it contributed to Plaintiffs’ accident in

particular. (ECF No. 76-4 at 3.) Mountain Creek challenges the admissibility of these claim on two

grounds. First, it argues Penniman improperly opined on the cause of an accident he was not

present to witness, and of which has no personal knowledge. (ECF No. 76-6 at 16) Second,

Mountain Creek interprets Penniman’s opinion as contradicting the fact witnesses in this case

without cause and believes the contradiction is severe enough to warrant precluding his testimony.

(Id. at 21.) The first of these challenges is well-founded, the latter is not.

Mountain Creek specifically objects to a line in the Penniman Report claiming “the

shadows appear[] to have caused Mr. Perciballi not to discern the difference between the long tree

and pole shadows across his path and the blue fence.” (Penniman Report at 3.) In making this

conclusion, Penniman does not quote Mr. Perciballi or his son, and by his own testimony has not

personally spoken to either fact witness. (ECF No. 76-4 at 34:20–35:7.) Fedorczyk v. Caribbean

Cruise Lines, Ltd., is instructive—“[a]n expert opinion is not admissible if the court concludes that

an opinion based upon particular facts cannot be grounded upon those facts.” 82 F.3d 69, 75 (3d

Cir. 1996). An expert may testify as to his or her opinion on the ultimate cause of an injury, even

“in the absence of complete information,” so long as the expert has sufficient direct knowledge to

ground his or her opinion. Matlin v. Langkow, 65 F. App’x 373, 383 (3d Cir. 2003) (permitting a

doctor to serve as an expert witness and to testify that the “the automobile accident caused

[Plaintiff’s] injuries” because he personally “examined” and discussed the accident with the

plaintiff) (citing In re Paoli, 35 F.3d at 742). But when an expert opinion “is not based on any

direct or circumstantial evidence,” it is inadmissible conjecture, even if the safety measures the

expert advocates for would have made the injury “less likely.” Fedorczyk, 82 F.3d at 75.

Penniman’s inspection of the site on a different day, without personally witnessing or reviewing

the accident, is not sufficient personal knowledge to testify about its cause.

To the extent Mountain Creek challenges the admissibility of any opinion offered by

Penniman pertaining to shadows on the ski track, the Court finds this opinion admissible. Mountain

Creek appears to argue all Penniman’s testimony on this topic should be precluded, because it

contradicts the deposition of Mr. Perciballi, but that is an overreading of Mr. Perciballi’s

testimony. (ECF No. 76-6 at 19–20) As the court stated before, it is well-settled an “expert's

testimony must be accompanied by a sufficient factual foundation.” Gumbs, 718 F.2d at 98. Were

Penniman to offer opinion on dangers that were wholly absent, or contradicted, by all witnesses it

would indeed lack foundation. Id. (finding that where “no evidence was presented to demonstrate

. . . [a likely] increase in income” the expert’s opinion lacked foundation). But Mr. Perciballi’s

testimony is consistent with Penniman, Mr. Perciballi testified the allegedly downed portion of the

fence “was not visible” as Mr. Perciballi “looked straight ahead . . . [he] didn’t see anything blue

on the floor.” (Deposition of Mr. Perciballi (ECF No. 77-4) at 136:19–137:4.) Mr. Perciballi may

believe the lack of visibility was caused by snow cover, rather than shadows, but this is consistent

with the Penniman Report which states that shadows and snow make blue mesh fencing less

visible. (Id. at 137:5–9; Penniman Report at 3.)

Therefore, the Penniman Report is precluded where it comments directly on the cause of

the accident, for which Penniman has no personal knowledge, and he will not be permitted to

testify that shadow cover conclusively caused the accident. But his opinion as to how shadow

cover can impact the visibility of hazards in general and pursuant to his site inspection are

acceptable expert opinion.

3. Testimony about an alleged generally-applicable standard for ski course

design is admissible, even when based on personal experience.

Finally, Mountain Creek objects to the sections of Penniman’s report and testimony that

claim the “standard custom and best practice” of ski resorts is to have “learning areas . . . separated

geographically from the other trails,” to avoid conflict with other skiers. (Penniman Report at 4.)

Mountain Creek contends that this is an attempt to hold it to a “standard personal to [Penniman]”

and not an actually-existing industry standard. (ECF No. 76-6 at 23.)

However, Mountain Creek does not provide a legal basis for its assertion that Penniman

must have a “written . . . industry standard,” to support his opinion that the placement of the

learning area at the Mountain Creek resort was not best practice. (ECF No. 76-6.) Rather, it cites

to a single case, Fernandez v. Baruch, which requires an expert witness to testify to “generally

accepted medical standards,” specifically in the medical malpractice context. 244 A.2d 109, 112

(1968); (ECF No. 76-6 ). Aside from the difference in legal contexts, the opinion at issue in Baruch

was, on its face, exclusively the personal opinion of the doctor, prefaced with “it is my opinion.”

Id. The Court need not decide whether Baruch applies to all expert witnesses who opine on the

issue of industry standards, or just when they do so in the context of medical malpractice, because

Penniman’s testimony pertains to a generally applicable industry standard.

Plaintiffs argue Penniman is not testifying that Mountain Creek failed by not living up to

his personal standard. Instead, they contend he is testifying that there is an unwritten industry

standard and—as an expert—he is in a position to know it. (ECF No. 78 at 25) To support their

interpretation of Penniman’s opinion, Plaintiffs offer several surveys and reports on the safety

protocols of ski resorts authored by Penniman, most notably The California Mountain Resort

Safety Report: Survey Methodology and Scoring Criteria (the “California Mountain Report”), as

evidence of his knowledge of ski safety standards. (Id. at 26.) For his part, Penniman also testified

in his deposition about this study and the research he performed for that study alongside his

personal observation of the practices at “over 300 ski areas in the U.S.,” which formed the basis

for his opinion that it is an industry standard for resorts to separate learning areas “geographically.”

(76-4 at 116:4–117:25.)

This may be a “shallow basis as to any industry standard,” (ECF No. 76-6 at 21) as

Mountain Creek says, but it is nonetheless sufficient for the “liberal policy of admissibility,” for

expert opinions. Kannankeril, 128 F.3d at 806–07. Mountain Creek’s argument here goes to the

weight afforded to Penniman’s report and testimony, not its admissibility.

For the foregoing reasons, Mountain Creek’s motion to preclude Penniman’s expert report

and testimony is GRANTED with respect to whether Plaintiffs’ accident was caused by shadows

on the course and DENIED with respect to all other objections. This denial is without prejudice

to Mountain Creek’s ability to raise motions in limine, voice objections to Penniman’s testimony,

or cross examine any element of his testimony.

C. Experience as a professional ski instructor and ski resort safety consultant are

sufficient to testify as an expert.

Mountain Creek also challenges Penniman’s qualifications to give his opinion on how

skiers typically act, and how they navigate a trail because he is “not trained in human factors,

human behavior, biomechanics, engineering, [or] psychology.” (ECF No. 76-6 at 24.) They

support this position by referring to portions of Penniman’s testimony where he was unable to

quantify the reaction time of the average skier, and admitted to not having collected specific data

on reaction times for the parts of his report discussing “skier behavior,” merely relying on his

“decades of experience with skier experience and ski area design.” (Id. at 24–26.)

But a witness need not possess specific academic credentials or formal training. Betterbox

300 F.3d at 327–328. The Third Circuit is clear that “specialized knowledge can be practical

experience as well as academic training and credentials,” so long the witness possesses “skill or

knowledge greater than the average layman.” Id. Penniman’s work encompasses both forms of

knowledge; it is apparent from his work, testimony, and publications that he is an expert with

considerable qualitative knowledge of skier behavior and expectations. (Penniman Report at 14–

17; ECF No. 78 at 29–30.)

Mountain Creek’s assertion that Penniman’s decades of experience as a trainer, ski patrol

member, and ski trail safety designer “does not constitute superior knowledge, education,

experience or skill on the subject matter of skier’s behavior,” to a jury who may have never skied

before, because he does not have an unrelated degree in “human factors, human behavior,

biomechanics, engineering, [or] psychology,” is not credible. (ECF No. 80 at 18.) “It is well settled

that an expert cannot be excluded because the trial court does not deem the proposed expert to be

the most qualified or because the proposed expert does not have the specialization the Court

considers to be the most appropriate.” Floorgraphics, Inc. v. News Am. Mktg. In-Store Servs., Inc.,

546 F. Supp. 2d 155, 167 (D.N.J. 2008). Penniman meets “the liberal minimum qualifications” for

admissibility, so the gaps in his understanding of skier behavior “goes to credibility and weight,

not admissibility” of his opinion. Id.

The Court finds Penniman is sufficiently qualified to serve as an expert on skier behavior

and expectations. Accordingly, Mountain Creek’s motion to preclude Penniman from testifying as

an expert on skier behavior is therefore DENIED.

IV. CONCLUSION

Mountain Creek’s Motion to Preclude Penniman’s Testimony and Opinions is GRANTED

IN PART, Penniman will not be permitted to offer an opinion or testify as to the ultimate cause

of the accident, and DENIED on all other grounds.

Date: January 29th, 2026 s/ Brian R. Martinotti ______

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE