Judge grants defense motion to exclude witness testimony in injury case against Pizza Hut

By Jon Campisi | Jul 30, 2013

A U.S. District Court judge has issued a split ruling in the pre-trial phase of a personal

injury complaint against the parent company of restaurant chain Pizza Hut, denying a defense motion for summary judgment in the case, but granting the defendant’s motion to exclude the testimony of an expert retained by the plaintiff.

The case involves Larry N. Jordan, a patron who claims to have suffered eye damage and other injuries stemming from a Dec. 28, 2008, altercation at a Pizza Hut location in Upper Darby, Delaware County.

The plaintiff claims he became embroiled in a confrontation that began outside of the eatery between the restaurant’s delivery driver and several people but eventually spilled into the business establishment.

Jordan claims one of the instigators came inside the restaurant at one point and pushed two pizza boxes belonging to the plaintiff off of the counter, which triggered a confrontation between the two.

Jordan claims he sustained injuries to his right eye after being punched by the other man.

The defendants, which include Yum Brands Inc. and Pizza Hut of America Inc., sought to have the testimony of David A. Gordon excluded, with defense lawyers arguing the man is not qualified to offer expert testimony at trial because Gordon’s opinions are not based on any authority or policy and his opinions do not fit the facts of the case.

Gordon had provided opinions regarding the safety precautions and actions of the defendants, including his belief that the restaurant door should have been locked as the confrontation unfolded in the parking lot, and that the business should have trained its employees to either lock the front door in such situations or usher patrons to a safe location within the restaurant.

In his July 24 memorandum, U.S. District Judge Jan DuBois, of the Eastern District of Pennsylvania, ruled that Gordon’s opinions are unreliable under the Daubert legal standard, and therefore the jurist declined to address whether or not Gordon is qualified to act as an expert or whether the man’s opinions fit the case.

To formulate his opinion, Gordon said he had reviewed the complaint, the depositions of both the plaintiff and Pizza Hut’s loss prevention manager, and read the transcripts of the delivery driver’s worker’s compensation deposition.

Gordon also stated that he had reviewed the crime statistics for Upper Darby, Pa., and information about an attempted armed robbery at the same Pizza Hut location that took place just over two months prior to the altercation highlighted in the lawsuit.

Gordon also reviewed security footage of the incident.

The defendants argued that Gordon’s conclusions are unreliable because they are not based on any specialized knowledge.

“They argue that Mr. Gordon cites no industry standards or other authority for his security opinions,” the judge noted in his memorandum. “they contend that he instead offers an opinion based on nothing but hindsight.”

The defendants also argued that Gordon ignored the “practical and legal risks” the defendants would have faced had they proceeded as Gordon suggested.

The plaintiff countered that Gordon’s opinions are reliable because they are not scientific in nature, and that they were based on industry standards.

“The Court concludes that Mr. Gordon’s opinions are not reliable,” the judge wrote. “Mr. Gordon did not state in his report that he relied on industry standards for security needs of fast-food restaurants in reaching his opinions, and there is no evidence that he did so.

“Moreover, he does not explain how he reached his opinions,” DuBois continued. “In short, he has provided no methodology. Such lack of methodology renders Mr. Gordon’s opinions unreliable under Daubert.

DuBois did, however, allow the case to move forward, writing that summary judgment, as requested by the defendants, was not appropriate at this juncture.

At this stage of the litigation, the judge determined, there is a genuine dispute of material fact with respect to whether the defendants had actual or constructive notice of the potential danger to patrons from acts perpetuated by third-parties in the restaurant.

“In so ruling, the Court is not deciding whether all of the proffered evidence related to actual or constructive notice is admissible at trial,” the judge wrote. “The decision on this issue is without prejudice to defendants’ right to object to any inadmissible evidence at trial.”

While the defendants disputed that they had actual or constructive notice of potential danger to their patrons from the acts of third parties, the plaintiff pointed to the attempted armed robbery that took place at the restaurant about two-and-a-half months earlier.

Jordan also argued that the crime statistics for Upper Darby reflect the dangerous nature of the area and put the defendants on notice of a need to protect patrons inside the restaurant from the acts of third parties.

Additionally, the judge ordered the plaintiff to file a response, on or before Aug. 9, to a defense motion seeking to preclude Jordon from introducing any evidence at trial regarding the plaintiff’s damages for medical treatment costs other than the amount of medical bills that was actually paid or remains due.

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