Opinion
DOCKET NO. A-1575-13T3 DOCKET NO. A-1576-13T3 DOCKET NO. A-1742-13T3 DOCKET NO. A-1772-13T3 DOCKET NO. A-1825-13T3
06-01-2015
EDWIN PURCELL, an individual, Plaintiff-Appellant/Cross-Respondent, and CHAD TINGLE, an individual; EMILY PEREZ, an individual; FREDERICK PERROTTA, an individual; CRYSTAL DANCER, an individual, Plaintiffs, v. TROPICANA CASINO AND HOTEL, a business entity, Defendant, and OTIS ELEVATOR COMPANY, a business entity, Defendant/Third-Party Plaintiff-Respondent/Cross-Appellant, v. EDWIN PURCELL, CHAD TINGLE, EMILY PEREZ, FREDERICK PERROTTA, JACQUELYN DUFNER, and CRYSTAL DANCER, Third-Party Defendants. NINA DELLA RAGIONE, Plaintiff-Appellant/Cross-Respondent, v. TROPICANA CASINO AND HOTEL and ADAMAR OF NEW JERSEY, INC., d/b/a TROPICANA CASINO AND RESORT, Defendants, and OTIS ELEVATOR COMPANY, Defendant-Respondent/Cross-Appellant. ANDREW MCFADDEN, an individual; LOUIS MILANO (deceased), an individual; and ESTATE OF LOUIS MILANO, Plaintiffs-Appellants/Cross-Respondents, v. TROPICANA CASINO AND HOTEL, a business entity; MOTION CONTROL ELEVATORS; EDWIN PURCELL; CHAD TINGLE; EMILY PEREZ; FREDERICK PERROTTA; JACQUELYN DUFNER; and CRYSTAL DANCER, Defendants, and OTIS ELEVATOR COMPANY, a business entity, Defendant-Respondent/Cross-Appellant. CASSANDRA MCGRAIN, Plaintiff-Appellant/Cross-Respondent, v. COLUMBIA SUSSEX CORPORATION, MOTION CONTROL ELEVATORS, MOTION CONTROL ENGINEERING, INC., and MOTION CONTROL ENGINEERING CORP., Defendants, and OTIS ELEVATOR COMPANY, Defendant-Respondent/Cross-Appellant. JACQUELYN DUFNER, Plaintiff-Appellant/Cross-Respondent, v. ADAMAR OF NEW JERSEY, INC., d/b/a TROPICANA, TROPICANA CASINO AND RESORT, and MOTION CONTROL ELEVATORS, Defendants, and OTIS ELEVATOR COMPANY, Defendant-Respondent/Cross-Appellant, and ADAMAR OF NEW JERSEY, INC., d/b/a TROPICANA CASINO AND RESORT, Defendant/Third-Party Plaintiff, v. EDWIN PURCELL, CHAD TINGLE, EMILY PEREZ, FREDERICK PERROTTA, and CRYSTAL DANCER, Third-Party Defendants.
Marcy M. McMann argued the cause for appellant/cross-respondent Cassandra McGrain (Stephen S. Weinstein, P.C., attorneys; Ms. McMann, of counsel and on the brief). Paul R. Garelick argued the cause for appellant/cross-respondent Edwin Purcell (Lombardi & Lombardi, attorneys, join in the brief of appellant/cross-respondent Cassandra McGrain). Thomas J. Mallon argued the cause for appellant/cross-respondent Nina Della Ragione (Mallon & Tranger, attorneys, join in the brief of appellant/cross-respondent Cassandra McGrain). Christopher T. Karounos argued the cause for appellant/cross-respondent Jacquelyn Dufner (Davis, Saperstein & Salomon, P.C., attorneys, join in the brief of appellant/cross-respondent Cassandra McGrain). Michael J. O'Mara argued the cause for respondent/cross-appellant Otis Elevator Company (Mayfield Turner O'Mara & Donnelly, attorneys; Christine D. McGuire, on the brief). Kearney, Campbell & Burns, P.C., attorneys for appellants/cross-respondents McFadden and Milano, join in the brief of appellant/cross-respondent Cassandra McGrain.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Simonelli and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Consolidated Docket No. L-3896-08. Marcy M. McMann argued the cause for appellant/cross-respondent Cassandra McGrain (Stephen S. Weinstein, P.C., attorneys; Ms. McMann, of counsel and on the brief). Paul R. Garelick argued the cause for appellant/cross-respondent Edwin Purcell (Lombardi & Lombardi, attorneys, join in the brief of appellant/cross-respondent Cassandra McGrain). Thomas J. Mallon argued the cause for appellant/cross-respondent Nina Della Ragione (Mallon & Tranger, attorneys, join in the brief of appellant/cross-respondent Cassandra McGrain). Christopher T. Karounos argued the cause for appellant/cross-respondent Jacquelyn Dufner (Davis, Saperstein & Salomon, P.C., attorneys, join in the brief of appellant/cross-respondent Cassandra McGrain). Michael J. O'Mara argued the cause for respondent/cross-appellant Otis Elevator Company (Mayfield Turner O'Mara & Donnelly, attorneys; Christine D. McGuire, on the brief). Kearney, Campbell & Burns, P.C., attorneys for appellants/cross-respondents McFadden and Milano, join in the brief of appellant/cross-respondent Cassandra McGrain. PER CURIAM
The primary issue on these appeals is whether the trial court correctly barred, as net opinions, the expert testimony sought to be offered on behalf of plaintiffs. Finding no error, we affirm.
Plaintiffs were injured when an elevator they were riding in the Tropicana Casino and Hotel ("Tropicana Hotel") descended thirty-four floors, failed to stop and landed on the buffer in the elevator pit. They filed suit against several defendants alleging negligence. By the time of trial, one defendant remained, Otis Elevator Company ("Otis"). Otis contracted to maintain the elevators at the hotel. Plaintiffs' negligence claims against Otis depended on their experts, who sought to opine that Otis had failed to properly maintain the elevator thereby causing the elevator to fail to decelerate. The trial court conducted an N.J.R.E. 104 hearing and found that plaintiffs' experts' opinions were net opinions. The court, therefore, entered a judgment in favor of Otis.
Plaintiffs appeal. Otis cross-appeals, contending, in the alternative, that if the claims against it are reinstated, then a prior trial court order granting summary judgment to third-party defendants should also be reversed.
The evidence produced at the Rule 104 hearing supports the trial court's findings that plaintiffs' experts were seeking to offer net opinions based on assumptions that lacked factual support in the record. Thus, we affirm the judgment in favor of Otis. Otis' cross-appeal is, therefore, moot and we need not reach it.
I.
We discern the following facts and procedural history from the record. The elevator accident occurred shortly after 1:30 a.m. on April 20, 2008, at the Tropicana Hotel. The elevator involved, described as WTP-1, had an interior surveillance video camera and, consequently, what happened inside the elevator was video recorded. We have reviewed the video, as did the motion judge.
At approximately 1:30 a.m., the elevator was descending from above the thirty-fifth floor with approximately fourteen passengers on the elevator. The elevator stopped at the thirty-fifth floor. One person standing on the landing, apparently waiting for the elevator, did not board the elevator. The elevator then descended to the thirty-fourth floor where a large group of individuals, mostly from a bachelor party, were waiting. Approximately eight people from that group entered the elevator. One of the plaintiffs, who was already on the elevator, testified at her deposition that the group pushed and forced its way on to the elevator. Another plaintiff testified that before the elevator doors closed, the elevator dropped about a foot.
The video confirms that after the elevator doors closed, it sharply dropped several feet, and thereafter the elevator descended thirty-four floors towards the lobby. The elevator, however, did not stop at the lobby. Instead, it continued until it came into contact with the safety buffer in the elevator pit in the lower levels of the hotel. As a result of the impact, a number of the passengers sustained personal injuries. Plaintiffs have identified one of the most serious injuries as a dislocated knee requiring reconstructive surgery.
In 2010, eight of the elevator passengers filed lawsuits and those lawsuits were later consolidated. Originally, the lawsuits included claims against a number of defendants, including the Tropicana Hotel, the manufacturer of the elevators, Motion Control Elevators, Motion Control Engineering Corporation, and Motion Control Engineering, Inc. (collectively, "Motion Control"), and Otis.
Otis and Motion Control filed third-party complaints against five of the passengers who had boarded the elevator on the thirty-fourth floor. They claimed that those passengers were negligent and thus violated alleged duties of care in boarding an already full elevator.
The Tropicana Hotel went into bankruptcy, and the bankruptcy court dismissed plaintiffs' claims against the Tropicana Hotel. After the close of discovery, Motion Control moved for and was granted summary judgment on July 12, 2013. Plaintiffs have not appealed that summary judgment. On September 24, 2013, the trial court granted summary judgment to the third-party defendants. Thus, when the matter came on for trial, Otis was the only remaining defendant.
On October 18, 2013, after a jury was selected and sworn, the trial court conducted a hearing pursuant to Rule 104, to address Otis' contention that the proposed testimony from plaintiffs' experts were net opinions. At that hearing, plaintiffs called one of their liability experts, Steven Greene ("Greene").
On this record, it is not clear why this Rule 104 hearing was not conducted before the jury was impaneled.
Greene is an elevator inspector and he has been certified as an elevator safety inspector since 1990. He is a licensed elevator inspector in the State of Texas and was a licensed elevator inspector in New York City from 1999 through 2012.
Preliminarily, there is no real issue with Greene's qualifications. Greene was qualified as an elevator inspector. While Otis disputes that finding, a review of the Rule 104 hearing establishes that the trial court did qualify Greene. That ruling was proper given Greene's background.
The elevator involved in the accident had been installed in the Tropicana Hotel in 1996. Otis took over as the maintenance contractor for the elevators in September, 2007. The subject elevator is commonly referred to as an "overhead gearless traction elevator." It has a motor, brake and counter-weights. Greene explained that the counter-weights are fixed to one end of suspension cables, which run through pulleys and then are attached to the elevator car. The weights counter-balance the elevator car as it moves up and down. Greene testified that the elevator's design weight was 5,800 pounds and it had a load capacity of 3,000 pounds. Greene also observed that the elevator had a sign on its back wall limiting the number of people on the elevator to twelve people.
In addition, Greene testified that the elevator has a load-weighing device that monitors the weight in the elevator car. The device is designed to cause the elevator not to stop at any floor once the elevator is fully loaded to its weight capacity. When the load-weighing device is operating properly, a fully loaded elevator will not stop at any floors and instead it should descend directly to the lobby.
In preparing his reports, Greene testified that he reviewed documents and information, including the video of the incident, the maintenance records and specifications for the elevator, photographs, electrical drawings, manuals and depositions. He then conducted a site inspection of the elevator on April 9, 2009. Greene also explained he conducted no tests of the elevator and he did not weigh the elevator car or the counter-weights.
During the Rule 104 hearing, Greene explained how he thought the accident occurred. Specifically, he noted that the elevator, with people already on it, came to the thirty-fourth floor, where additional people boarded the elevator. Greene opined that at that point, the elevator was near capacity. According to Greene, the elevator brake slipped causing the elevator to drop several feet. The elevator doors then closed and the elevator descended at its normal or designed speed from the thirty-fourth floor to the lobby. At the lobby, the elevator was not able to stop, and it continued until it hit the buffer in the elevator pit.
Greene prepared a written report, with two supplements, and he testified that at trial he would offer five related opinions. The proposed opinions were:
In his written report, Greene identified and described three proposed opinions. In plaintiffs' briefs, plaintiffs described Greene as offering four opinions. These differences concerning the number of proposed opinions appear to arise from the fact that several of the opinions identified by Greene in his testimony at the Rule 104 hearing are based on the weight of the elevator and the weight of the counter-balances.
1. Otis breached duties by not responding to indicators that the elevator car was too heavy and the counter-weights too light;
2. Following the accident, Otis violated an order from the City of Atlantic City Elevator Safety Unit instructing Otis not to repair the elevators prior to inspection;
3. Otis breached contractual duties by not performing the scope of work items listed in the maintenance agreement;
4. Otis breached contractual duties by not weighing the elevator car and counter-weights when evidence suggested the counter-balance problem; and
5. Otis breached contractual duties and standards of care by not keeping the load-weighing device functioning properly.
After hearing Greene's testimony and arguments of counsel, the trial court found that Greene's proposed opinions were based on assumptions that did not have factual support in the record and, therefore, were inadmissible net opinions. Specifically, the trial court discussed each of Greene's proposed opinions, analyzed the proffered basis for the opinion, and found that each of the opinions was not based on facts in the record. The trial court then ruled that Greene would not be permitted to testify before the jury.
Following that ruling, counsel for plaintiffs informed the court that their second expert, Patrick Carrajat, used the same assumptions as Greene. Believing that they could not survive a motion to dismiss at the end of their case without liability expert testimony, plaintiffs requested the court to dismiss their case, subject to their right to file an appeal. The trial court, therefore, dismissed the jury and, on November 1, 2013, entered final judgment in favor of Otis.
Plaintiffs now appeal the November 1, 2013 judgment in favor of Otis. Otis cross-appeals the September 24, 2013 summary judgment in favor of the third-party defendants. All the appeals were consolidated.
II.
At the Rule 104 hearing, the trial court made evidentiary findings concerning the lack of a factual basis for the experts' proposed opinions and, accordingly, barred the opinions as net opinions. The court then concluded that Otis was entitled to a judgment in its favor since plaintiffs could not establish the causal element of their negligence claims.
That two-step analysis is the correct methodology. See Townsend v. Pierre, 221 N.J. 36, 53 (2015) ("[w]hen, as in this case, a trial court is 'confronted with an evidentiary determination precedent to ruling on a summary judgment motion,' it 'squarely must address the evidence decision first.'" (quoting Estate of Hanges v. Metro. Prop. & Cas. Inc., 202 N.J. 369, 384-85 (2010))). "Appellate review of the trial court's decision proceeds in the same sequence, with the evidentiary issue resolved first, followed by the summary judgment determination of the trial court." Ibid. (citing Hanges, supra, 202 N.J. at 385).
A determination on the admissibility of expert testimony is committed to the sound discretion of the trial court. Id. at 52 (citing State v. Berry, 140 N.J. 280, 293 (1995)). A trial court's grant or denial of a motion to preclude expert testimony is entitled to deference on appellate review. Ibid.; see also Bender v. Adelson, 187 N.J. 411, 428 (2006) (citing Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005)); Carey v. Lovett, 132 N.J. 44, 64 (1993) (citing Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 411 (1960)). The Supreme Court has instructed: "[W]e apply [a] deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Townsend, supra, 221 N.J. at 53 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)).
Two rules of evidence frame the analysis for determining the admissibility of expert testimony. See N.J.R.E. 702; N.J.R.E. 703. N.J.R.E. 702 identifies when expert testimony is permissible and requires the experts to be qualified in their respective fields.
N.J.R.E. 703 addresses the foundation for expert testimony. Expert opinions must be grounded in "'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.'" Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)); State v. Townsend, 186 N.J. 473, 494 (2006). The net opinion rule is a "corollary of [N. J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Townsend, supra, 221 N.J. at 53-54 (quoting Polzo, supra, 196 N.J. at 583); see also Creanga v. Jardal, 185 N.J. 345, 360 (2005) (citing Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)).
Therefore, an expert is required to "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Townsend, supra, 221 N.J. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013) ); Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014) (quoting Pomerantz Paper Corp., supra, 207 N.J. at 372); Creanga, supra, 185 N.J. at 360 (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)). The net opinion rule directs that experts "'be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.'" Townsend, supra, 221 N.J. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). In short, the net opinion rule is "'a prohibition against speculative testimony.'" Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Preifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)).
Applying those principles, the trial court correctly found that Greene's proposed opinions were improperly based on assumptions without factual support in the record. The principal assumption identified by the trial court was that several of Greene's proposed opinions were premised on his contention that the elevator was out of balance. Greene sought to opine that Otis breached duties by not responding to alleged indications that the elevator car was too heavy and the counter- weights too light (Opinion No. 1), and that Otis breached contractual duties by not weighing the elevator car and counter-weights when evidence suggested a counter-balance problem (Opinion No. 4).
During his site review, Greene observed that the furnishings in the elevator were different from the furnishings in the original specifications for the elevator. In particular, the carpeting had been replaced with a stone or granite floor, the walls had been changed from laminate panels to mirrors with brass, and the ceiling had been changed from "standard egg crate type" to heavy brass lights. Greene then estimated that those changes added approximately 1,000 pounds to the weight of the elevator car. Greene went on to assume that the counter-weights were never adjusted to account for that additional 1,000 pounds in car weight.
The trial court found that there were several problems with Greene's assumptions. First, Greene did not know the actual weight of the elevator car after the furnishings had been changed. He never weighed the car, and nothing in the record established what the weight of the car was with the furnishing changes. Instead, Greene based his assumed 1,000 pound weight change on another elevator car that he had inspected in a building located in California. Second, Greene never weighed the counter-weights, so he did not know whether the counter-weights were adjusted to account for the weight that he assumed had been added by the change in furnishings. Indeed, the trial court noted that Greene could not even say when the furnishing modifications were made to the elevator. Those evidentiary findings made by the trial court are amply supported by the evidence from the Rule 104 hearing.
Two of Greene's other proposed opinions were premised on his assumption that Otis had failed to perform maintenance work in accordance with the maintenance agreement (Opinion No. 3), and that, after the accident, Otis had violated a directive from Atlantic City not to repair the elevator before it was inspected (Opinion No. 2). The trial court found that no records supported either of these contentions. The trial court also correctly found that both of these opinions were based on the assumed weight-imbalance. Greene acknowledged at the Rule 104 hearing that no maintenance records called for Otis to repair or adjust the weight of the elevator car or the counter-balance weights. Instead, Greene proposed to testify that Otis should have "discover[ed] that the elevator car was too heavy and the counter-weight[s were] too light." No facts, however, showed that the elevator car was too heavy or that the counter-weights were too light. Without facts or data as required under Rule 703, Greene would merely be speculating. See N.J.R.E. 703 (which requires facts or data to support an expert's opinion). Our Supreme Court has instructed: "Given the weight that a jury may accord to expert testimony, a trial court must ensure than an expert is not permitted to express speculative opinions or personal views that are unfounded in the record." Townsend, supra, 221 N.J. at 55.
With regard to the contention that Otis repaired the elevator after the accident, the trial court again found that no records or other facts supported that assumption. After the accident, the elevator had been tested and found to be in balance. To rebut that test, Greene proposed to testify that Otis must have adjusted the counter-weights after the accident, but before the test. The trial court had previously and separately ruled that there was no evidence to support a spoliation claim. At the Rule 104 hearing, the trial court found that there was also no evidence showing that Otis had adjusted the counter-weights after the accident.
Greene proposed to testify that he was assuming that Otis deliberately did not document the weight adjustment. To support that assumption, Greene pointed out that when he conducted his site inspection in 2009, there were two 150 to 200 pound counter-weights sitting on the floor in the basement near the elevator pit. Again, Greene assumed that those weights were brought in with other weights and the counter-balance was adjusted. The trial court correctly found that such proposed testimony was speculation. Moreover, the trial court correctly reasoned that such testimony was not expert testimony, but lay testimony without a factual foundation. See N.J.R.E. 701 (which requires that for a lay witness to offer an opinion, that opinion must have a rational basis and must assist in understanding the witness' testimony or a fact in issue).
Finally, the trial court found Greene's proposed opinion concerning the load-weighing device to also be inadmissible. Greene proposed to opine that Otis breached duties by not keeping the load-weighing device functioning properly. (Opinion No. 5.) That is the device that should have prevented a fully loaded elevator from stopping at a floor to pick up additional passengers. At the Rule 104 hearing, however, Greene acknowledged that the load-weighing device was not a factor in causing the accident in this case. Specifically, the trial court had the following exchange with Greene:
THE COURT: So, at the end of the day, so to speak, what I said before still holds. The load-weighing device really had - - on this elevator had nothing to do with this accident?
THE WITNESS: Yeah. And the other thing is the load-weighing device is not a code-required safety device either.
THE COURT: All right.
On this appeal, plaintiffs argue that the trial court erred by relying on factors that go to the weight of the expert's opinion, not to the admissibility of the expert's opinion. We disagree. As already analyzed, Greene had no factual foundation for his opinions. Thus, the problem is not with the weight of the evidence, but that the evidence (that is, the proposed opinions) were unsupported and, therefore, inadmissible net opinions.
Plaintiffs also argue that Greene's testimony should have been allowed as a "differential diagnosis" opinion. To qualify as a differential diagnosis, an expert must first "rule in" all reasonable causes for the plaintiff's condition. Creanga, supra, 185 N.J. at 356. Second, an expert must then engage in a process of elimination and "rule out" causes that do not, after further examination, appear to have created the condition. Ibid. "An expert 'need not conduct every possible test to rule out all possible causes of a patient's [injury], so long as he or she employed sufficient diagnostic techniques to have good grounds for his or her conclusion.'" Ibid. (quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 156 (3d Cir. 1999) (internal quotation marks omitted)).
Traditionally, New Jersey courts have admitted differential diagnosis evidence in toxic tort litigation; however, its admissibility is not limited to that context. See Lapka v. Porter Hayden Co., 162 N.J. 545, 557 (2000); Rubanick v. Witco Chem. Corp., 125 N.J. 421, 450-51 (1991). For example, a differential diagnosis has been allowed in an automobile accident case to determine the cause of a plaintiff's miscarriage. See Creanga, supra, 185 N.J. at 358-60.
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This argument is not persuasive. As the trial court pointed out, Greene did not test the elevator, he did not weigh the elevator, he did not weigh the counter-weights, and he did not perform a load differential test. Therefore, the trial court correctly found that Greene did not engage in proper diagnostic procedures. Indeed, Greene's lack of facts concerning the weight of the elevator and counter-weights prevent him from demonstrating that there were "good grounds" for his conclusions. See Creanga, supra, 185 N.J. at 356-58, 360-61.
In summary, a review of the record establishes that the trial court had ample support for each of its evidential rulings. Moreover, nothing in the record suggests that the court abused its discretion in finding that the proposed opinions were net opinions.
We, therefore, turn to a review of the entry of judgment in favor of Otis. This was not the typical summary judgment ruling. Here, a jury was impaneled and a Rule 104 hearing was conducted. Nevertheless, even if we review the entry of the judgment in favor of Otis as a summary judgment, under a de novo standard of review, see Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (citing Coyne v. State Dep't of Transp., 182 N.J. 481, 491 (2005)), that judgment was properly entered.
To establish a cause of action for negligence, a plaintiff must prove four elements: "(1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages." Davis, supra, 219 N.J. at 406 (quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013)). Here, plaintiffs acknowledge that to prove Otis was negligent, they must show that Otis' failure to properly maintain the elevator caused the elevator to drop to the elevator pit and, thereby, caused the injuries to plaintiffs. Plaintiffs also acknowledge that to prove the link between the elevator's failure to decelerate and stop at the lobby and the alleged negligence of Otis, they must rely on expert testimony. It follows that once the experts were barred from testifying, Otis was entitled to a judgment in its favor. Accordingly, the trial court's judgment in favor of Otis entered on November 1, 2013, is affirmed.
Having affirmed the judgment in favor of Otis, Otis' cross-appeal concerning the summary judgment granted to the third- party-defendant passengers is moot. Consequently, we do not reach or address that cross-appeal. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION