PHILADELPHIA - A state appeals court has affirmed a jury verdict in the case of a woman who fell down stairs at a day care while wearing covers on her shoes.
Just About Me Learning Academy in Philadelphia won a jury verdict in January 2024, leading plaintiff Paige Taylor to appeal. The Superior Court ruled against her, too, on April 10, over gripes about what the jury was permitted to hear from experts.
One of those included her own expert, who was struck after filing a report one month after the deadline to do so.
"The docket entries indicate that Appellant never requested a continuance of the discovery deadline or offered an explanation regarding the lateness of the report," Judge Megan McCarthy King wrote.
"As the proffered expert report advanced a new basis for relief not stated in the complaint, the trial court properly excluded it to prevent unfair surprise to Appellee."
Taylor works in the Department of Human Services' Office of Child Development and Early Learning and was inspecting Just About Me, which requested she wear plastic shoe coverings to prevent spread of COVID-19.
She did, and she slipped and fell down a flight of stairs. Her March 2022 lawsuit said Just About Me failed to maintain the stairs or warn her, plus provided unsafe shoe covers.
Just About Me argued she had failed to step on the carpet partially covering the step, while she said, after close of discovery, she missed the strip because it was too narrow.
She got an expert to back that claim, but Jason Boyd's report was ruled untimely and would have advanced a new theory of negligence not in the original complaint.
"This introduction of a new cause of action, if it were permitted, would have greatly prejudiced Appellee because Appellee was never put on notice regarding the staircase dimensions and code/ordinance violations via the complaint nor during discovery," the trial judge ruled in disqualifying Boyd.
Taylor tried to strike Just About Me's experts but failed. That report concerned the shoe cover but Dr. Vasiliki Kefala was not provided the exact covers Taylor had worn.
Kefala said the covers Taylor wore were not slippery enough to cause the fall but did not know which specific cover they were. Kefala instead used five "exemplars" of others.
Both courts allowed "exemplar" testing, with the Superior Court citing other cases involving kitchen mats and scaffolding.
"Dr. Kefala described at length her scientific testing process, which included multiple trials for each brand of shoe cover at different locations on the premises, and she took the average of each test to be more consistent," King wrote.
"Thus, we agree with the trial court that Dr. Kefala had an adequate basis for her report, and we see no abuse of discretion by the trial court in permitting this testimony, particularly where Appellant's counsel was permitted to cross-examine Dr. Kefala during her deposition."
Susan Ayres of Hill & Associates represents Taylor, while Shannon Harkins of Thomas, Thomas & Hafer and John Morgenstern of O'Hagan Meyer represent Just About Me.