27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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` DISTRICT COURT
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`STATE OF MINNESOTA
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`COUNTY OF HENNEPIN
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`COURT FILE NO.: 27-CV-20-15577
`_____________________________
` JUDGE KAREN A. JANISCH
`Jeffrey Cichoski,
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`Plaintiff,
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`FOURTH JUDICIAL DISTRICT
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`CASE TYPE: Personal Injury
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`PLANTIFF JEFFREY CICHOSKI’S
`MEMORANDUM OF LAW IN
`OPPOSITION TO DEFENDANT’S
`MOTION IN LIMINE
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`v.
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`Hampshire Estates Condominium
`Association,
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`Defendant.
`_____________________________
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`
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`The Defendant Hampshire Estates Condominium Association (the “Association”) is
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`responsible for maintaining the driveways, sidewalks, and exterior stairways on the Hampshire
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`Estates Condominium Association property. On December 20, 2017, the Plaintiff, Jeffrey
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`Cichoski, while in the course and scope of his employment with a delivery service, was on the
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`Hampshire Estates Condominium Property walking down a driveway to deliver a package to the
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`residents of one of the condominium units. Mr. Cichoski injured his right shoulder and knee when
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`he slipped and fell on ice that had formed on the driveway. The Association denies that it had any
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`knowledge of the ice on the driveway which caused Mr. Cichoski to fall and therefor claims it
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`owed Mr. Cichoski no duty of care and is not legally liable for his injuries and loss.
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` Based on the extensive experience in the snow and ice removal and remediation services,
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`Plaintiff’s experts John Allin and Lisa Rose have the requisite technical and specialized knowledge
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`that will assist the jury to understand the evidence and determine fact issues in this matter,
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`including but not limited to issues relating to how and why the ice formed on the driveway, the
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`manner in which the snow had been plowed and piled along the side of the driveway, the weather
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`conditions in the time prior to Mr. Cichoski’s fall, the Association’s constructive knowledge of the
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`ice, the Association’s duty to discover the ice, and the practices and procedures that would have
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`remediated the ice. Accordingly, pursuant to Rule 7.02 of the Minnesota Rules of Evidence, the
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`jury should be afforded the opportunity to hear and consider their testimony subject to defense
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`counsel’s cross-examination. Defendant’s Motion in Limine for an order precluding their
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`testimony should be denied.
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`OVERVIEW OF FACTS
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` On the afternoon of December 20, 2017, Plaintiff Jeffrey Cichoski, while in the course
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`and scope of his employment with a Federal Express delivery company, was delivering a package
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`to one of the residential units in the common interest community known as the Hampshire Estates
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`Condominiums in St Louis Park, Minnesota. When Mr. Cichoski and his delivery partner arrived
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`at this location, Mr. Cichoski parked the delivery truck on the street adjacent to the driveway,
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`unloaded a package from the back of the truck, placed the package onto a pushcart, and walked
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`with the pushcart down the private driveway on the Condominium property in his approach to the
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`stairway that led up to the front entrances of the residential units. As Mr. Cichoski approached the
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`stairway, he stepped onto a patch of clear ice. As a result, Mr. Cichoski fell forcibly back onto the
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`pushcart, sustaining significant disabling injuries to his right shoulder and right knee.
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`The ice which caused Mr. Cichoski to fall formed when the ice and snow that had been left
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`along the curb of the driveway melted and drained out onto the asphalt surface and refroze on top
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`of the asphalt in a transparent, nearly invisible fashion. Though the ice and compacted snow that
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`extended along the curb and out into the driveway and in front of the main stairway was plainly
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`visible, there were areas of ice that formed on top of the previously clear asphalt extending farther
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`out into the driveway that were not plainly visible.
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`The Association is responsible for the maintenance, repair, management and operation of
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`common areas, including the driveways, walkway, steps and stairs located outside the residential
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`units on the condominium property, according to the terms of the Declaration filed with Hennepin
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`County Record’s office.1 A copy of the Declaration is included as Exhibit 1 which is attached to
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`the Affidavit of William J. Kranz.
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`The Declaration in Article V, Section 2 further defines Common Areas as follows:
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`Common Areas and Facilities shall include such things as
`the Parcel, parking areas, driveways or walkways,
`gardens, greens, recreational areas or facilities, trees, shrubs,
`… steps and stairways outside of the units and the garage
`units, windows and doors outside of the units and garage
`units, and any personal property and fixtures used in
`connection with the above items, [even] though not
`specifically mentioned herein.
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`(emphasis added.) See Exhibit 1, Affidavit of William J. Kranz.
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`Article V, Section 5 of the Declaration provides:
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`Maintenance, repair, management and operation of the Common
`Areas and Facilities, including all Limited Common Areas and Facilities,
`shall be the responsibility of the Association, but nothing herein
`contained shall be construed so as to preclude the Association from
`delegating to persons, firms, or corporations of its choice such duties as
`may be imposed upon the Association by the terms of the Declaration and
`approved by the Board of Directors.
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`Id.
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`1 The Hampshire Estates Condominium property is held for residential purposes subject to the Minnesota Common
`Interest Ownership Act and the Declaration Establishing Hampshire Estates Condominium. The Declaration has an
`effective date of October 30, 1985, was filed of record with the Hennepin County Recorder’s Office as Document
`No. 5047322. See Exhibit 1, Affidavit of William J. Kranz
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`BASIS FOR LIABILITY
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`The Civil Jury Instruction Guides promulgated by the Minnesota District Judges
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`Association provide that the respective duties of a land owner including persons in possession of
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`property and an entrant coming on to the property are to be explained to a jury in the following
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`terms:
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`Definition of “Entrant”:
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`An “entrant” is persons who enters or stays on the property of
`another and is not a trespasser.
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`Possessor’s duty to protect entrants:
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`The possessor of property has a duty to an entrant to use reasonable
`care to protect him or her from unreasonable risk of harm (caused
`by the condition of the premises) (caused by the activities on the
`premises).
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`Entrant’s duty to use reasonable care:
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`An entrant on an another’s property has a duty to use reasonable care
`for his or her own safety while on the premises.
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`Definition of “negligence” and “reasonable care”:
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`“Reasonable care” is the care you would expect a reasonable person
`to use in the same or similar circumstances.
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`“Negligence” occurs when a person:
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`1. Does something a reasonable person would not do, or
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`2. Fails to do something a reasonable person would do.
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`Civ. Jig. 85.22 & 85.25.
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`The law as expressed in this jury instruction was adopted by the Minnesota Supreme Court in
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`Peterson v. Balach, 199 N.W.2d 639, 647 (Minn. 1972).
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`In Peterson, the court set out a nonexclusive list of factors that could be considered in
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`determining whether the possessor of property was negligent:
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`Among the factors to be considered might be the circumstances
`under which the entrant enters the land (licensee or invitee);
`foreseeability or possibility of harm; duty to inspect, repair or warn,
`reasonableness of inspection or repair; an opportunity and ease of
`repair or correction.
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`199 N.W.2d at 647 n. 7.
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`Through expert testimony, Plaintiff intends to establish the Association’s constructive
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`knowledge of and/or its failure to discover the basic conditions which caused Mr. Cichoski to fall
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`and its failure to remove or remediate the icy conditions.
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`In this regard, Mr. Allin and Ms. Rose will testify concerning weather conditions that:
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`Accuweather information gathered at the Minneapolis-Saint Paul International
`Airport in Minneapolis, MN, 8.6 miles to the southeast of the incident site, shows
`that, on December 15, 2017, less than 1 inch of snow fell. Air temperatures on
`December 16, 2017, were 31 degrees F. and 23 degrees F. On December 17, 2017,
`the air temperature high for the day was 28 degrees F. and the low was 18 degrees
`F. For December 19, 2017, which is the day prior to the subject incident, the high
`air
`temperature was 38 degrees F. and
`the
`low was 24 degrees F.
`WeatherUnderground shows cloudy, fair, partly cloudy/windy skies throughout the
`day. On the date of the subject incident, December 20, 2017, there was a high air
`temp for the day of 24 degrees F. and a low of 18 degrees F. with continued cloudy
`skies.
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`See Exhibit B to Affidavit of George C. Hottinger, Snow/Ice Removal Investigation Report, p. 2.
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`Photographs taken of the area by a coworker of Mr. Cichoski establish the snow and ice
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`condition in the area where he fell on December 20, 2017. Plaintiff intends to show through the
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`expert testimony of Mr. Allin and Ms. Rose that:
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`This icy condition made it unsafe for Mr. Cichoski to use the parking lot drive lane
`area to walk upon. Hampshire Estates Condominium Association did not properly
`and/or adequately address the dangerous condition on the area where Mr. Cichoski
`slipped and fell. The ice was more likely than not there as a result of thaw and
`refreeze conditions from melting snow running across the parking lot drive lane
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`and refreezing prior to Mr. Cichoski’s incident. The conditions existed from no de-
`icing or traction material having been applied or applied properly to mitigate the
`ice buildup on the parking lot drive lane area prior to and/or the day of the incident.
`Not being aware of and/or addressing the conditions resulted in the area being
`dangerous for pedestrian traffic. Hampshire Estates Condominium Association did
`not properly mitigate the dangerous ice condition on this area on December 20,
`2017.
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`See Id. Snow/Ice Removal Investigation Report, p. 5-6.
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`Plaintiff also intends to show that the Association failed to execute its professional
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`responsibility for the maintenance, repair, management and operation of the common areas as
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`expressed in the Declaration. More specifically, the Association failed to property vet and conduct
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`due diligence in the delegation of its snow removal duties to both a snow removal services
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`contractor and a Condominium resident. The Association further failed to execute its professional
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`responsibility by not continuing its oversight of its snow removal delegates to insure that the snow
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`removal service and the Condominium resident utilized best practices in snow removal and
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`premises safety. In turn, the Association’s failure to retain snow removal delegates who operated
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`under and followed best practices in snow removal and the Association’s failure to continue
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`oversight of the snow removal delegates resulted in inadequate, inappropriate, and unsafe clearing
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`of ice and snow from the driveway. Plaintiff also intends to show that both of the Association’s
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`snow removal delegates failed to clear the driveway in a manner which would avoid thawing snow
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`from pooling and refreezing on the driveway surface. Plaintiff also intends to show that both of
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`the Association’s snow removal delegates failed to take preventative measures to avoid refreezing
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`of the pooled water by applying grit or abrasive to the low-lying areas of the driveway surface.
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`PROCEDURAL STATUS
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`To enlighten the jury on these and other issues, Plaintiff served on Defendant and filed
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`with the Court a “Disclosure of Expert Testimony” on July 30, 2021. In this document, Plaintiff
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`disclosed John Allin and/or Lisa Rose, partners in Allin / Rose Consultants, Inc., as expert
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`witnesses who specialize in consulting with entities concerning selection of snow removal service
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`contractors, continued oversight of snow removal entities or individuals, and safe and effective
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`snow removal best practices.
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`Defendant has now filed this Motion In Limine asking the Court to “exclude any and all
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`testimony of John Allin and/or Lisa Rose, including any references to testimony or argument based
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`upon the anticipated testimony of John A Allin and or Lisa M. Rose.” (Defendant’s Notice of
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`Motion and Motion, p. 1) In turn, Plaintiff now requests that the Court deny Defendants Motion
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`In Limine and specifically allow for introduction of testimony from Plaintiff’s expert witnesses
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`on the grounds discussed below.
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`ARGUMENT
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`In Minnesota, the testimony of experts is controlled by Rule 702 of the Minnesota Rules
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`of Evidence. Rule 702 provides:
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`If scientific, technical or other specialized knowledge will assist the trier
`of fact to understand the evidence or to determine a fact in issue, a witness
`qualified as an expert by knowledge, skill, experience, training or
`education, may testify thereto in the form of an opinion or otherwise. The
`opinion must have foundational reliability. . . .
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`Minnesota Rule of Evidence 702.
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`The Committee Comment on Rule 702 notes that the trial court has discretion regarding
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`the admissibility that expert witness testimony, while providing the following guidelines:
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`The admissibility of expert opinion has traditionally rested in the
`discretion of the trial court. This discretion is primarily exercised in two
`areas:
`1. determining if an opinion can assist the trier of fact in
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`formulating a correct resolution of the questions raised,
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`2. deciding if the witness is sufficiently qualified as an expert in a
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`given subject area to justify testimony in the form of an opinion. There
`will be no change in existing practice in this regard.
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`The rule is not limited to scientific or technical areas, but is phrased
`broadly to include all area of special knowledge. If an opinion could assist
`the trier of fact it is should be admitted subject to proper qualification of
`the witness. The qualifications of the expert need not stem from formal
`training and may include any knowledge, skill or experience that would
`provide the background necessary for a meaningful opinion on the subject.
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`Minnesota Rule of Evidence 702, Committee Comment (1977) (emphasis added).
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`I.
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` THE PROPOSED EXPERT TESTIMONY FROM THE
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`PRINCIPALS OF ALLIN / ROSE, INC., AS SUMMARIZED IN THE
`“SNOW/ICE REMOVAL INVESTIGATION REPORT” SHOULD
`BE ADMISSIBLE IN THIS MATTER BECAUSE THE “SPECIAL
`KNOWLEDGE” OF THESE EXPERTS WILL ASSIST THE JURY
`IN DETERMINING A CORRECT RESOLUTION OF ISSUES
`RAISED IN THIS LAWSUIT.
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`Allin / Rose Consulting, Inc., through its two principals John Allin and Lisa Rose, have
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`“technical” and “special knowledge” referred to in Rule 702 and Commentary that could and
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`would “assist the trier of fact to understand the evidence or to determins a fact issue.” The
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`Commentary notes that “if an opinion could assist the trier of fact it should be admitted. . . .”
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`Minnesota Rule of Evidence 702, Committee Comment (1977) (emphasis added).
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`A. Plaintiff’s expert witnesses, the partners of Allin / Rose Consulting, Inc.
`have technical and special knowledge in snow removal best practices.
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`Defendant does not challenge the credentials and expertise of the disclosed expert
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`witnesses on the issues of snow removal, including consulting with entities concerning selection
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`of snow removal service contractors, continued oversight of snow removal entities or individuals,
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`and safe and effective snow removal best practices. A review of the Curriculum Vitae of both
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`partners of Allin / Rose Consulting, Inc. quickly reveals a depth and breadth of experience,
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`technical knowledge, and special knowledge on all aspects of consulting with professional entities
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`to hire safe and effective snow removal, while continuing to provide necessary oversight of the
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`delegated work.
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`Mr. John Allin has been involved in aspects of the snow industry for about 45 years. He
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`has founded organizations focused on safe and effective snow removal, published numerous
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`articles and books on snow removal best practices, presented at countless seminars on this topic,
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`and has the expertise, “technical” knowledge, and “special knowledge” about snow removal and
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`the responsibilities inherent in delegation of snow removal responsibilities that would be valuable
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`to a fact finder. (See Allin Curriculum Vitae, attached to Hottinger Affidavit as Exhibit C).
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`Similarly, Lisa Rose has expertise and specialized knowledge about the snow removal
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`industry and snow removal techniques as well. (See Rose Curriculum Vitae, attached to Hottinger
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`Affidavit as Exhibit D). While Ms. Rose’s Curriculum Vitae, delineating the range and depth of
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`her experience in snow removal best practices, may be less extensive in comparison to her partner
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`Mr. Allin, her experience and credentials certainly provide the foundation for opinions on all areas
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`of snow removal best practices, as well. If Defendant’s counsel disputes the credentials or
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`reliability of Plaintiff’s expert witnesses, counsel is free to explore these areas in cross-
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`examination at trial.
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`B. Plaintiff’s disclosed experts’ technical and special knowledge about and
`the delegation of the duty of snow removal and best practices in safe and
`effective snow removal is relevant and would assist the jury in
`determining the Association’s duty in vetting, conducting due diligence,
`hiring and retaining snow removal services entities and/or on-site
`residents, maintaining exterior premises safe for residents and invitees,
`and whether the Association followed best practices in delegating its
`snow
`removal
`responsibilities
`and
`executing
`any
`retained
`responsibilities to protect its residents and invitees.
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`The Association has a responsibility to maintain, manage and operate all exterior common
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`places, including the driveways and sidewalks. Article V, Section 5 of the Declaration provides:
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`Maintenance, repair, management and operation of the Common Areas
`and Facilities, including all Limited Common Areas and Facilities, shall
`be the responsibility of the Association, but nothing herein contained shall
`be construed so as to preclude the Association from delegating to persons,
`firms, or corporations of its choice such duties as may be imposed upon
`the Association by the terms of the Declaration and approved by the Board
`of Directors.
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`See Affidavit of William J. Kranz Exhibit 1, Declaration, Art V, Sec. 5.
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`Within the Association’s responsibility to maintain, manage and operate all exterior
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`common places (including the driveways and sidewalks), is the opportunity for the Association to
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`delegate these duties. In this case, the Association delegated duties of snow removal to an outside
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`service contractor, Dennis Johnson, Premier Lawn and Snow, as well as an individual resident,
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`Allen Webb, the former treasurer of the Association. (See Joint Statement of the Case, p. 3). The
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`delegation of the Association’s snow removal responsibility raises questions of due diligence and
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`vetting that the Association used in delegating its duties, the continued monitoring and oversight
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`by the Association over the contractor and individual performing snow removal duties, the
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`Association’s documentation of the work and manner of the work to be performed, the existence
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`of the Association’s snow response plan, and the communication and selection of the scope of
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`work to be performed and by whom.
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`In executing its professional duties under this section of the Declaration, the Association
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`undertakes its contractual responsibility to residents and invitees to keep the premises safe; the
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`Association is also undertaking its professional and corporate responsibility when delegating those
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`duties to other entities and persons to ensure, through proper vetting, due diligence, and continued
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`oversight of the delegated work, that the delegates will also undertake their duty to keep the
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`premises safe—through safe and effective snow removal.
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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` These professional duties and the standard of care associated with them require expert
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`testimony. In Pond Hollow Homeowners Ass’n v. Tyland Group, Inc., 779 N.W.2d 920, 923
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`(Minn. Ct. App. 2012), the court noted that in establishing the existence of a duty of care for an
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`entity undertaking professional services, expert testimony is necessary.
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`As to the existence of a duty of care, “one who undertakes to render
`professional services is under a duty . . . to exercise such care, skill and
`diligence as men in that profession ordinarily exercise under like
`circumstances.” . . . Ordinarily expert testimony is required to establish
`the prevailing standard of care and the consequences of departure from
`that standard.
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`Id. at 923 (ellipsis in original; citations omitted). While the Pond Hollow court was referring to
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`the standard of care for the professional services rendered by an engineer, the holding is equally
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`relevant to a Condominium Association who undertakes to provide professional management
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`services to its residents and their invitees, including the delegation of some of those services to
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`other professional management contractors and /or residents.
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` While these type of professional administrative and safety issues might be known and
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`understood by some jurors, certainly other jurors would find expertise in this area helpful to their
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`decision-making process. Rule 702 provides that expert testimony that “could assist” the
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`factfinder should be admitted.
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`C. The experts’ special knowledge as to snow removal best practices is
`relevant and would assist the jury in determining whether the services
`contractor and resident who undertook snow removal on the driveway
`and sidewalk of the premises, on behalf of the Association, followed best
`practices in snow removal on behalf of the other residents and the
`residents’ invitees.
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`Defendant argues that an expert witness is not necessary to establish a duty of care on
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`behalf of Association as property owner. Ultimately, the Association is responsible for its
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`selection of entities and individuals to carry out snow removal work, as noted above, but the
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`Association is also responsible for the manner in which its delegates carried out those delegated
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`responsibilities.
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`Plaintiff intends to prove that at least two snow removal and ice prevention techniques used
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`or omitted from use in the delegates’ method of snow clearing caused the melting / refreezing
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`pattern which led to the transparent, clear icy patch on the driveway. One snow removal technique
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`which results in a melting / refreezing pattern is the failure to stack removed snow a significant
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`distance behind the grass/driveway border. If the snow is stacked or piled directly abutting the
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`grass/driveway border, the melted snow runs onto the lower driveway, refreezing and creating
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`additional icey conditions. Another snow removal best practices technique is to use grit, de-icer or
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`other abrasives to preclude refreezing of snow melting from the piled snow banks back onto the
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`lower level driveway.
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`Plaintiff will argue that the failure to use these two best practices techniques, among others,
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`directly contributed the refreezing of clear ice patches directly causing plaintiff’s fall and injury.
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`Again while some jurors may be aware of the most safe and effective snow removal techniques,
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`other jurors might find instruction on these techniques enlightening. As noted, Rule 702 provides
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`that expert testimony that “could assist” the factfinder should be admitted.
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`II. SINCE THE EXPERT TESTIMONY MEETS THE THREHOLD
`STANDARD ESTABLISHED IN RULE 702, ANY DEFICIENCIES
`ALLEGED BY DEFENDANT IN THE EXPERT TESTIMONY IS
`BEST ADDRESSED BY CROSS-EXAMINATION RATHER THAN
`ENTIRELY PRECLUDING EXPERT TESTIMONY HELPFUL TO
`THE JURY.
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`Defendant argues in its Memoradum of Law that the partners of Allin/Rose Consulting did
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`not personally inspect the premises prior to rendering their opinions. While a personal inspection
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`of the premises might well be important in cases in which the primary issue concerned permanent
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`conditions, the snow and ice conditions at issue in this case could easily change with the weather
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`27-CV-20-15577
`
`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`and certainly from day to day. In this case, the, photographic evidence, taken contemporaneously
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`or nearly-contemporaneously with the incident, which preserves the condition of the scene
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`arguably provides even better foundation for an expert opinion than a later in-person inspection
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`when relevant snow and ice conditions have not been preserved.
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`Plaintiff expects that the evidence will show that Mr. Cichoski’s partner took numerous
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`photographs of the condition of the driveway and surrounding areas. Those photographs include
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`a depiction of snow and ice accumulations on and near the driveway at issue. Plaintiff’s experts
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`reviewed enlargements of thirteen of these photographs in forming the basis of some or all of their
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`opinions. Even if plaintiff’s experts had visited the scene, the conditions necessarily would have
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`been altered from the time of the incident, due to the passage of time, differing weather conditions
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`and the impact of the changing weather conditions on the snow and ice accumulation. Thus, given
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`the factual circumstances of this lawsuit, photographic depictions of the scene, nearly
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`contemporaneous with the incident, are arguably better representation of contemporaneous
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`conditions than a later in-person inspection.
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`The Minnesota Rules of Evidence specifically allow for opinions of expert witnesses to be
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`based, in whole or in part, or facts presented or garnered by other witnesses which are then made
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`known to the expert.
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`Rule 703. Bases of Opinion Testimony by Experts
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`(a) The facts or data in the particular case upon which an expert bases an
`opinion or inference may be those perceived by or made known to the
`expert at or before the hearing. If of a type reasonably relied upon by
`experts in the particular field in forming opinions or inferences upon the
`subject, the facts or data need not be admissible in evidence.
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`(b) Underlying expert data must be independently admissible in order to
`be received upon direct examination; provided that when good cause is
`shown in civil cases and the underlying data is particularly trustworthy,
`the court may admit the data under this rule for the limited purpose of
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`13
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`27-CV-20-15577
`
`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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`showing the basis for the expert's opinion. Nothing in this rule restricts
`admissibility of underlying expert data when inquired into on cross-
`examination.
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`Committee Comment - 1989
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`The rule represents a fresh approach to the question of expert testimony-
`-one which more closely conforms to modern realities. Consistent with
`existing practice the expert can base an opinion on firsthand knowledge
`of the facts, facts revealed at trial by testimony of other witnesses, or by
`way of hypothetical questions. The rule also permits the opinion to be
`based on data or facts presented to the witness prior to trial.
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`Minnesota Rule of Evidence 703, Committee Comment (1977) (emphasis added). Under Rule
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`703, the experts’ use of and reliance on photographs of the scene, taken by Mr. Cichoski’s deliver
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`partner, can legitimately provide the basis for some or all of the experts’ opinions.
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`Further, Defendant argues that an experts’ review of and reliance on photographs of the
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`scene rather than a personal inspection of the incident site constitutes grounds for excluding the
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`expert’s testimony in its entirety. Contrary to defendant’s allegation, the case cited by Defendant
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`does not absolute bar on expert testimony because of the lack of an on-site inspection, but rather
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`notes that the court has discretion to disallow a portion of the expert testimony for which the lack
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`of an inspection colored the foundation of the expert’s testimony. Bush v. Busch Construction,
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`262 N.W. 3d 377, 391 (Minn. 1977). The Bush case supports Plaintiff’s position that any alleged
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`deficiencies in the expert testimony can be cured by cross-examination or by the court’s own
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`limitation of testimony, without precluding expert testimony entirely.
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`CONCLUSION
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`Based upon the legal argument presented above, Plaintiff submits that its disclosed expert
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`witnesses have the technical and specialized knowledge necessary to assist the trier of fact to
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`understand the evidence or to determine a fact in issue. Therefore, under Rule 703, the expert
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`testimony should be allowed.
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`14
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`27-CV-20-15577
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`Filed in District Court
`State of Minnesota
`11/5/2021 3:52 PM
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` Respectfully submitted,
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` MONTPETIT KRANZ, PLLC
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`/s/ William J. Kranz
`William J. Kranz (I.D. #159724)
`Attorneys for Plaintiff Jeffrey Cichoski
`105 Hardman Court, Suite 110
`South St. Paul, MN 55075-2468
`Telephone: (651) 450-9000
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`Dated: November 5, 2021
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`15
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