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COMMONWEALTH OF MASSACHUSETTTS
BRISTOL, SS SUPERIOR COURT
CIVIL ACTION
NO. BRCV 1673CV00614
LINDA PAUL
vs. BRISTOL, SS SUPERIOR COURT
FERN REALTY COMPANY, LLC;
FAXON HEIGHTS REALTY COMPANY, LLC; APR 10 2019
BELRIDGE REALTY COMPANY, LLC;
IANTOSCA REALTY COMPANY, LLC;
MARC J. SANTOS, ESQ.
and D.A.J. PROPERTY MANAGEMENT
CLERK/MAGISTRATE
COMPANY, INC.
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS?’
MOTION IN LIMINE TO EXCLUDE HER LIABILITY EXPERT
Defendants have filed a motion in limine seeking to prevent plaintiffs liability expert,
William H. Daley, II, P.E., from testifying about the unsafe nature of the speed hump that
plaintiff tripped over. At the time of the incident, this speed hump was painted with diagonal
yellow lines. The only other features in the shopping plaza that were painted with diagonal
yellow lines were the flat pavement areas closest to the building designated as fire lanes, and one
of the three other speed humps. The two other speed humps were painted solid yellow: After a
review of extensive case documentation and a site inspection, Mr. Daley reached and reported
the well-grounded opinions that the diagonal-stripe pavement markings employed by defendants
on the parking lot speed hump that plaintiff tripped over did not conform to “generally accepted
standards for such markings,” were “inconsistent between different speed humps in the same
plaza,” were less visible than if they had been painted a solid color (as were two of the other
three speed humps), and created confusion for pedestrians and were unsafe.
¢
Neither of defendants’ two criticisms of these opinions, Mr. Daley’s reliance on generally
accepted pavement-marking standards and his reference to the undisputed fact that the incident
occurred at night, demonstrates scientific unreliability that would subject his opinions to
exclusion under Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994). While these
challenges may be fodder for cross-examination of Mr. Daley at trial, they do not demonstrate
scientific unreliability.
Defendants’ first ground for alleged unreliability, that the national Manual on Uniform
Traffic Control Devices (“MUTCD”) and its Massachusetts counterpart did not apply to the
parking lot because it was a private access road, misses the mark. While the location of the
incident may have been a private shopping plaza, the scene photographs demonstrate that the
place where the speed hump was located was similar in dimensions, layout, and function to a
two-lane roadway, with vehicles passing each other in opposite directions and pedestrians
crossing from time to time. These similarities make it entirely appropriate for Mr. Daley to
reference the MUTCD and the Massachusetts regulations as a basis for his opinion that
“generally accepted standards for such markings” support his opinion that the speed hump
should have been painted solid yellow or with chevrons, not yellow stripes. The speed humps
that defendants employed on its roadway are certainly traffic control devices, so there is nothing
inherently unscientific or unreliable in applying the MUTCD guidelines to them. Indeed, if Mr.
Daley had not cited any published standards as the basis for his conclusions, defendants would
likely be arguing that that omission made his opinions scientifically unreliable. See Palandjian v.
Foster, 446 Mass. 100, 108, 842 N.E.2d 916, 923 (2006) (medical expert witness’s failure to
provide “a reliable basis” for his opinion that a patient had an increased risk of gastric cancer
because his second-degree relatives had a history of gastric cancer required exclusion of that
opinion). Mr. Daley’s reference to these published guidelines, the shopping plaza locus of this
case notwithstanding, provides just the type of reliable basis required by Massachusetts law.
Defendants’ second argument, that Mr. Daley notes that the incident occurred at night
without acknowledging that artificial lighting was present, is equally meritless. Regardless of the
presence of artificial lighting, it is still justifiable, and certainly not scientifically unreliable, to
state, as Mr. Daley does, that “it was dark at the time of this incident and a solid yellow painted
speed hump would be more visible, and provide greater warning to pedestrians.” (Report at 12).
This is especially so given the fact that the flat pavement closest to the buildings, designated as
fire lanes, is marked by diagonal yellow lines, just like the speed hump plaintiff tripped over.
While defendants may choose to cross-examine Mr. Daley on the presence. of artificial lighting
and its effect on visibility of the speed hump, his lack of reference to artificial lighting does not
render his opinions scientifically unreliable.
- For these reasons, this court should determine that Mr. Daley’s analysis and opinions are
scientifically valid and reliable and deny defendants’ motion to exclude them.
Plaintiff, Linda Paul
By her Attorneys,
OdlZ/
Peter
J. Cefilli, Esq. (B.B-0. 079770)
FOLEYCERILLI, P.C.
56 Pine Strket/Suite 200
Providence, RI 02903
Tel: (401) 272-7800
Fax: (401) 274-2780
E-mail: peter@foleycerilli.com
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the following document: Plaintiff’s
Memorandum in Q) 0p osition to Defendants’ Motion in Limine to Exclude her Liability Expert
was sent on the e“day of April, 2019 to the following counsel-of-record:
Martin S. Cosgrove, Esq.
Cosgrove, Eisenberg and Kiley, PC
803 Hancock Street
cypeal
PO Box 189
Quincy, MA 02170-0997
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= é 7 COMMONWEALTH OF MASSACHUSETTTS BRISTOL, SS SUPERIOR COURT CIVIL ACTION NO. BRCV 1673CV00614 LINDA PAUL vs. BRISTOL, SS SUPERIOR COURT FERN REALTY COMPANY, LLC; FAXON HEIGHTS REALTY COMPANY, LLC; APR 10 2019 BELRIDGE REALTY COMPANY, LLC; IANTOSCA REALTY COMPANY, LLC; MARC J. SANTOS, ESQ. and D.A.J. PROPERTY MANAGEMENT CLERK/MAGISTRATE COMPANY, INC. PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS?’ MOTION IN LIMINE TO EXCLUDE HER LIABILITY EXPERT Defendants have filed a motion in limine seeking to prevent plaintiffs liability expert, William H. Daley, II, P.E., from testifying about the unsafe nature of the speed hump that plaintiff tripped over. At the time of the incident, this speed hump was painted with diagonal yellow lines. The only other features in the shopping plaza that were painted with diagonal yellow lines were the flat pavement areas closest to the building designated as fire lanes, and one of the three other speed humps. The two other speed humps were painted solid yellow: After a review of extensive case documentation and a site inspection, Mr. Daley reached and reported the well-grounded opinions that the diagonal-stripe pavement markings employed by defendants on the parking lot speed hump that plaintiff tripped over did not conform to “generally accepted standards for such markings,” were “inconsistent between different speed humps in the same plaza,” were less visible than if they had been painted a solid color (as were two of the other three speed humps), and created confusion for pedestrians and were unsafe. ¢ Neither of defendants’ two criticisms of these opinions, Mr. Daley’s reliance on generally accepted pavement-marking standards and his reference to the undisputed fact that the incident occurred at night, demonstrates scientific unreliability that would subject his opinions to exclusion under Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994). While these challenges may be fodder for cross-examination of Mr. Daley at trial, they do not demonstrate scientific unreliability. Defendants’ first ground for alleged unreliability, that the national Manual on Uniform Traffic Control Devices (“MUTCD”) and its Massachusetts counterpart did not apply to the parking lot because it was a private access road, misses the mark. While the location of the incident may have been a private shopping plaza, the scene photographs demonstrate that the place where the speed hump was located was similar in dimensions, layout, and function to a two-lane roadway, with vehicles passing each other in opposite directions and pedestrians crossing from time to time. These similarities make it entirely appropriate for Mr. Daley to reference the MUTCD and the Massachusetts regulations as a basis for his opinion that “generally accepted standards for such markings” support his opinion that the speed hump should have been painted solid yellow or with chevrons, not yellow stripes. The speed humps that defendants employed on its roadway are certainly traffic control devices, so there is nothing inherently unscientific or unreliable in applying the MUTCD guidelines to them. Indeed, if Mr. Daley had not cited any published standards as the basis for his conclusions, defendants would likely be arguing that that omission made his opinions scientifically unreliable. See Palandjian v. Foster, 446 Mass. 100, 108, 842 N.E.2d 916, 923 (2006) (medical expert witness’s failure to provide “a reliable basis” for his opinion that a patient had an increased risk of gastric cancer because his second-degree relatives had a history of gastric cancer required exclusion of that opinion). Mr. Daley’s reference to these published guidelines, the shopping plaza locus of this case notwithstanding, provides just the type of reliable basis required by Massachusetts law. Defendants’ second argument, that Mr. Daley notes that the incident occurred at night without acknowledging that artificial lighting was present, is equally meritless. Regardless of the presence of artificial lighting, it is still justifiable, and certainly not scientifically unreliable, to state, as Mr. Daley does, that “it was dark at the time of this incident and a solid yellow painted speed hump would be more visible, and provide greater warning to pedestrians.” (Report at 12). This is especially so given the fact that the flat pavement closest to the buildings, designated as fire lanes, is marked by diagonal yellow lines, just like the speed hump plaintiff tripped over. While defendants may choose to cross-examine Mr. Daley on the presence. of artificial lighting and its effect on visibility of the speed hump, his lack of reference to artificial lighting does not render his opinions scientifically unreliable. - For these reasons, this court should determine that Mr. Daley’s analysis and opinions are scientifically valid and reliable and deny defendants’ motion to exclude them. Plaintiff, Linda Paul By her Attorneys, OdlZ/ Peter J. Cefilli, Esq. (B.B-0. 079770) FOLEYCERILLI, P.C. 56 Pine Strket/Suite 200 Providence, RI 02903 Tel: (401) 272-7800 Fax: (401) 274-2780 E-mail: peter@foleycerilli.com CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the following document: Plaintiff’s Memorandum in Q) 0p osition to Defendants’ Motion in Limine to Exclude her Liability Expert was sent on the e“day of April, 2019 to the following counsel-of-record: Martin S. Cosgrove, Esq. Cosgrove, Eisenberg and Kiley, PC 803 Hancock Street cypeal PO Box 189 Quincy, MA 02170-0997