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In an MSJ, Show Your Expert Work, Not Just Expert Conclusions – Fajardo v. Dailey

By Eric Ganci

Fajardo v. Dailey filed 10/14/22

In civil law, Defendant can file a motion for summary judgment (an MSJ as we shorten it in the legal biz). I shan’t get deep into what is an MSJ or the law behind it, but at 30,000 feet the law is this: “A court may grant a motion for summary judgment ‘only when ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” I’m citing from the case I am blogging about: Fajardo v. Dailey, filed 10/14/22, and cited right now as 2022 WL 16846151.

Diving in, Fajardo is a case where Defendant has an uneven crack in their sidewalk, and Plaintiff trips on the crack.

Here, Defendant files an MSJ against Plaintiff, where Defendant “asserted the sidewalk differential was less than one inch.”

First, ““size alone is not determinative of whether a rut presents a dangerous condition.” But again, I’m punting on this issue and discussion to, as I want to focus on another part of the case. Which is this: when you file an MSJ, you can file expert declarations. If you file these declarations, per Fajardo, your expert must not just give conclusion opinions—your expert must show her work in addition to giving her opinions.

So here, Defendant’s expert concludes the sidewalk differential was less than one inch. But this expert “did not state how or why he knew this. He did not say he measured the displacement, nor did he give any other basis for his conclusion. Therefore, it had no evidentiary value and could not support summary judgment.”

Here, “[t]he closest Parco [the Defense expert] came to providing a factual basis for his statement the rise was less than one inch was his reference to 10 photographs…attached to his declaration. But Parco did not say he took the photographs, or even who did. Nor did he state that he based his less-than-one-inch opinion on the photographs or that the photographs showed the displacement was less than one inch.”

Fajardo cites other cases with helpful law statements too:

“[A] ‘moving party’s burden … cannot be satisfied by an expert declaration consisting of ultimate facts and conclusions that are unsupported by factual detail and reasoned explanation….”

An “expert’s ‘opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment….’”

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