In Salas v. Adirondack Transit Lines, Inc., a personal injury action, plaintiff sued the defendant bus company claiming they breached their duty to provide her with a safe place to disembark from their bus. The Second Department affirmed summary judgment in favor of the bus company and in doing so utterly rejected plaintiff’s expert affidavit submitted in opposition to the underlying motion.
Plaintiff’s expert claimed there is a standard operating procedure in the bus industry where the bus driver offers assistance and warnings to customers when they are boarding or alighting the bus. The Second Department rejected the expert’s affidavit, however, observing he didn’t establish a sufficient foundation to show such an industry standard or practice in fact existed, nor did they cite a regulation or statute the defendant violated to cause the accident.
Litigants can retain an expert to support almost any position for almost any issue, however, often the mere existence of an opposing expert report or affidavit is enough for a defendant to abandon their hopes of winning on summary judgment. While it’s true that courts are reluctant to break ties in Battles of Experts at the summary judgment phase, defendants should not abandon good motions in the face of an opposing expert opinion.
Rather, as Salas shows, a defendant can prevail outright even if plaintiff hires an expert in an attempt to defeat the motion if the expert does not provide a sufficient basis for their opinion—and if a defendant properly attacks that opinion on reply.
Thank you to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions.