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Sivak v. Cody Rides, LLC

United States District Court, D. Minnesota

May 17, 2018

Joseph J. Sivak, Jr., Plaintiff,
v.
Cody Rides, LLC, Defendant.

          MEMORANDUM AND ORDER

          Paul A. Magnuson United States District Court Judge

         This matter is before Court on Defendant's Motion to Exclude and for Summary Judgment. For the following reasons, the Motion is granted.

         BACKGROUND

         Plaintiff Joseph J. Sivak, Jr., and a friend attended an event at the Minneapolis Convention Center called the SnowtaNYE Music Festival on December 31, 2016. Sivak was injured when he fell from a Ferris wheel that had been installed in the convention center for the event.

         Sivak then brought this lawsuit against the various entities involved in the SnowtaNYE event. The Court previously dismissed Defendants Tom Collins Group, LLC, its related entity SnowtaNYE, LLC, and Show Productions, Inc. d/b/a Audio Visions. (Docket No. 79.) Remaining Defendant Cody Rides, LLC, brought the Ferris wheel to the event, installed the Ferris wheel, and operated the ride during the event.

         Sivak's 11-paragraph Second Amended Complaint does not contain any separate counts. He claims only that Cody Rides “operated its Ferris wheel without proper maintenance or inspection; and operated said Ferris wheel in a careless and negligent manner.”[1] (2d Am. Compl. (Docket No. 27) ¶ 9.) Cody Rides now moves to exclude Sivak's expert witness, and argues that Sivak cannot establish his negligence claims without the expert's testimony, making summary judgment appropriate.

         DISCUSSION

         A. Daubert

         The Supreme Court has assigned district courts with the role of gatekeeper to ensure that only relevant and reliable expert testimony is admitted under Fed.R.Evid. 702. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). To determine reliability, the Court should examine (1) whether the theory or technique “can be (and has been) tested, ” (2) whether it “has been subjected to peer review and publication, ” (3) the “known or potential rate of error, ” and (4) whether the theory or technique has been generally accepted within the relevant scientific community. Id. at 592-94.

         “[T]he factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (quotation omitted). The Court should exclude an expert witness “[o]nly if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury.” Id. at 929-30. However, the Court should not admit expert opinion evidence that “is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

         Cody Rides asks the Court to exclude the testimony of Sivak's expert witness, Steven Becker. Mr. Becker is a mechanical engineer whose opinions purport to establish Cody Rides' liability. He offers three general opinions. First, he believes that improper inspection or maintenance of the hanger pin for the seat in which Sivak was riding was responsible for the incident. (Becker Decl. Ex. C (Docket No. 65-1) at 19.) Sivak testified that the seat suddenly locked in place, so that when the Ferris wheel turned, he and his friend were tipped out of the seat. Mr. Becker believes that the pin attaching the seat to the Ferris wheel malfunctioned either because of improper maintenance, assembly, or spacing of the pin, or because of debris or wear. (Id. at 16.)

         Becker also analyzed the security video from the incident. Based on that video, he opined that Sivak was not rocking his seat before he fell, lending credence to Sivak's assertion that the seat malfunctioned. (Id. at 19.)

         Finally, Becker believes that Cody Rides violated Minnesota law by failing to immediately report the incident to the Minnesota Department of Labor and Industry. (Id.) Sivak suggests that this failure, and Cody Rides' subsequent dismantling of the Ferris wheel before any inspection could be accomplished, may constitute spoliation of evidence. Sivak has not, however, moved for any relief because of this alleged spoliation.

         Cody Rides first challenges Becker's qualifications, arguing that because he has no expertise in Ferris wheels, his testimony is unreliable. But although Becker has limited familiarity with Ferris wheels, he is a mechanical engineer and thus is qualified to offer opinions regarding the ...


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