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Finding that an expert witness had relied only on documents provided by a plaintiffs lawyer and conducted no investigation on his own, a federal judge has dismissed a personal injury suit brought by a woman who claims she suffered a broken hip when she was knocked to the ground by an automatic revolving door at a Marriott Hotel. In his 31-page opinion in Willis v. Besam Automated Entrance Systems Inc., U.S. District Judge R. Barclay Surrick found that the proposed expert’s conclusions were “pure speculation and conjecture” because he had never inspected the revolving door and its safety devices, and was unable to exclude other possible causes for the accident. According to court papers, plaintiff Ruth E. Willis had traveled to Washington, D.C., in May 2003 to attend a relative’s graduation and stayed at the Marriott Wardman Park Hotel. Willis, who walks with a cane, claims she had used the hotel’s automatic revolving doors three times without incident, but on her fourth attempt, she was struck in the shoulder by one of the door’s panels. After she fell, she claims, the door continued to rotate, pushing her several feet on the floor. Plaintiffs attorney Michael N. Borish of the Law Offices of Bernard M. Gross filed suit against Marriott International Inc. and the manufacturer of the door, Besam Automated Entrance Systems Inc. The suit alleged the revolving door was defectively designed because it lacked a “slow-speed actuation device,” as well as necessary warnings that would have prompted an elderly or disabled hotel visitor to use one of the automated swinging doors on either side of the revolving door. The case was scheduled to go to trial Nov. 7, but defense lawyers moved to exclude the testimony of Willis’ expert witness, Ronald J. Panunto, an electrical engineer who is president of Dawson Engineering Inc. in Fairless Hills, Pa. In court papers, Besam’s lawyer, Joseph A. Daly of Marshall Dennehey Warner Coleman & Goggin, and Marriott’s lawyers, Carl D. Buchholz III and Michael Christopher Gallagher of Rawle & Henderson, argued that Panunto’s proposed testimony failed to meet the reliability requirements announced by the U.S. Supreme Court in its 1993 decision in Daubert v. Merrell Dow Pharmaceuticals Inc. Borish argued that Panunto — a former field engineer for PECO whose work included designing a security system at the Peach Bottom nuclear plant that used presence sensors — was “certainly qualified to render opinions about the sensors on the revolving doors in this case, having spent his entire career working with sensors on technologically sophisticated electrical equipment.” Since Panunto has “broad experience in equipment maintenance and the investigation of the causes of equipment failure,” Borish argued that his testimony satisfied the “liberal policy of admissibility of expert testimony” under Rule 702 of the Federal Rules of Evidence. Surrick disagreed, finding that Panunto’s proposed testimony was unreliable due to his lack of independent investigation and that some aspects of his report were nothing more than “generalized common sense.” “Instead of conducting his own independent investigation, Panunto merely relies on documents provided to him by plaintiff’s counsel,” Surrick wrote. “Panunto never inspected the subject door or its safety devices and has no knowledge concerning the condition of the revolving door on the day that Willis sustained her injuries. Panunto does not even attempt to exclude other causes of plaintiff’s accident and, in fact, concedes that Willis herself may have caused the accident,” Surrick wrote. In a Daubert hearing, Surrick noted, Panunto testified that “walking with a cane, it just might have been more prudent for [plaintiff] to use one of the side doors” and that Willis could have been “distracted at the time of her accident.” Surrick also noted that Panunto conceded the safety sensors on the door could have been working properly and that Panunto “never measured the speed of the door or the force that it exerts when it comes in contact with a person or an object.” As a result, Surrick concluded Panunto “cannot say with any degree of certainty that the force of the moving door would have been sufficient to knock plaintiff to the floor.” Surrick also faulted Panunto for failing to inspect or test any similar automatic revolving door or safety devices. “Panunto’s conclusions that plaintiff’s injuries were caused by defendants’ conduct does not derive from any testable hypothesis,” Surrick wrote. “The conclusions that Panunto draws from his review of the discovery materials are pure speculation and conjecture.” Under the law of the 3rd U.S. Circuit Court of Appeals, Surrick said, an expert’s opinion “must be based on the methods and procedures of science rather than on subjective belief or unsupported speculation.” Panunto’s proposed testimony failed that test, Surrick found, because he “does not support his conclusions through any generally accepted methodology.” Surrick found Panunto “conducted no tests, did not examine the subject door, never examined any similar door, and had no experience with the safety devices on the subject door. He used little, if any, methodology beyond his own intuition.” In his report, Panunto said he had concluded that the safety sensors on the door must have been intentionally disabled by Marriott because Besam’s maintenance records showed there were no problems before and after the accident. But Surrick found Panunto “offers no evidence to support this belief.” “There is no evidence in this record that the safety devices were disconnected after Besam serviced the door on May 15, 2003, but before plaintiff’s May 18, 2003 accident. In addition, there is no evidence that the door did not work properly between May 18th and August 2003 when the planned maintenance found absolutely nothing wrong with the door or the sensors,” Surrick wrote. As a result, Surrick concluded that Panunto’s theory “is not based on a methodology which can be readily tested or subjected to peer review. Instead, Panunto provides the court with nothing more than subjective belief.” Surrick also found that Panunto’s qualifications as an expert did not “enhance the reliability” of his proposed testimony. “Panunto has a degree in electrical engineering, is a licensed electrical engineer, and has practical experience in electrical engineering. However, he has never designed, installed, or serviced an automatic revolving door, nor has he ever designed, installed, or repaired any sensor components for an automatic revolving door,” Surrick wrote. “Since he was not familiar with automatic revolving doors prior to this case, Panunto has no specialized knowledge or experience relating to the operation or maintenance of the automatic revolving door. . . . Consequently, Panunto’s background in electrical engineering adds little to the reliability of his conclusions in this matter,” Surrick wrote. Borish argued that “one need not be an automatic door maven” to reach the conclusion that the door’s safety sensors malfunctioned because it was based on “the facts in the record, simple logic, and clear reasoning.” But Surrick found Borish had effectively conceded the defense argument. “This is precisely the point,” Surrick wrote. “One does not need an engineering degree to reach the conclusion reached by Panunto. Permitting Panunto to testify as an expert in support of plaintiff’s negligence claims would allow too great of an analytical gap between his review of the data and the conclusion that he reached.” In the final sections of his opinion, Surrick concluded the defendants were entitled to summary judgment on all of Willis’ claims. To prove a strict liability claim, Surrick said, Willis needed a reliable expert witness because “the mechanics of an automatic revolving door involve design and engineering concepts that are beyond the ken of the average layman.” That expert, Surrick said, would need to apply a “risk-utility balancing test” to determine whether the product has a design defect. To prevail, Surrick said, the plaintiff must show the risks, costs and benefits of the product in question and alternative designs, and that the magnitude of the danger from the product outweighed the costs of avoiding the danger. The plaintiff must also show the actual risk of the design used, the relative utilities of an alternative design, and the costs associated with adopting one design over another. Panunto “offered no testimony on these subjects,” Surrick said. “He simply opined that Besam should have provided a speed actuation device on the door.” Borish said in an interview Thursday that he intends to file an appeal because he disagrees with the judge’s conclusions and believes the case should have been submitted to a jury.

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