United States District Court, D. Minnesota
Joseph J. Sivak, Jr., Plaintiff,
Cody Rides, LLC, Defendant.
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before Court on Defendant's Motion to Exclude
and for Summary Judgment. For the following reasons, the
Motion is granted.
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.
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.
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.” (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.
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.
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).
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
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.)
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
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