govinfo:USCOURTS-vtd-2_24-cv-00846-0

UNITED STATES DISTRICT COURT 
FOR THE 
DISTRICT OF VERMONT 
LISA BRUN and DANIEL BRUN, 
Plaintiffs, 
V. 
PEAKCM LAKE STREET HOTEL, LLP, 
CITY OF ST. ALBANS, INTEGRATED 
TECHNICAL SYSTEMS, INC., CROSS 
CONSULTING ENGINEERS, P.C., AND 
CONNER COMMUNICATIONS, INC., 
Defendants. 
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ENTRY ORDER GRANTING DEFENDANT'S MOTION IN LIMINE TO 
EXCLUDE TESTIMONY OF PLAINTIFF'S EXPERT 
(Doc. 43) 
Plaintiffs Lisa Brun and Daniel Brun ( collectively, "Plaintiffs") bring this action 
against Defendants PeakCM Lake Street Hotel, LLP, d/b/a/ Hampton Inn ("Hampton 
Inn"), the City of St. Albans ("St. Albans"), Integrated Technical Systems, Inc. ("ITS"), 
Cross Consulting Engineers, P.C. ("Cross"), and Conner Communications, Inc. 
("Conner") ( collectively, "Defendants") arising out of the injuries Ms. Brun sustained 
after an access gate at a parking garage owned and operated by St. Albans unexpectedly 
closed on Ms. Brun. Plaintiffs assert a claim of negligence against Defendants. 
Pending before the court is Hampton Inn's November 11, 2025 motion in limine to 
exclude the testimony of Plaintiffs' expert, George W. Melchior, R.A., P.E., with respect 
to any duty Hampton Inn had to warn Plaintiffs not to park in the garage. (Doc. 43.) 
Plaintiffs opposed the motion on November 25, 2025. Hampton Inn did not file a reply, 
and the court took the pending motion under advisement on December 12, 2025. 
Plaintiffs are represented by Joshua L. Simonds, Esq. Hampton Inn is represented 
by Susan J. Flynn, Esq. 
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I. Factual and Procedural Background. 
George W. Melchior is a licensed architect and professional engineer with over 
twenty years of experience. As an engineer, he "analyz[ ed] and design[ ed] vehicular 
transportation and traffic systems, including associated standards for parking facilities, 
driveways[,] and intersections." (Doc. 44-2 at 1.) Through his experience as a Facilities 
Management Director for the Department of the Navy and as a parking consultant, Mr. 
Melchior has "extensive experience operating and maintaining millions of square feet of 
parking facilities throughout the northeastern [United States], including parking system 
functional design, geometry and striping, and automatic entry and exit gate systems." Id. 
He supplemented his technical education and experience with a Master in Business 
Administration ("MBA") from the University of New Hampshire, which he earned in 
2007 and during which he obtained "training in business operations, operations 
management, and operational risk management." Id. at 2. He was also "formally trained 
and certified in operations management, including operational risk management[,]" 
during his time with the U.S. Navy. Id. 
On September 28, 2025, Mr. Melchior provided a twenty-four-page expert witness 
report (the "Expert Report"), the stated purpose of which was to "assess the operational 
risks associated with the St. Albans parking garage entry queue configuration and system 
mode of operations." Id. In developing his opinions, Mr. Melchior "visited the property 
on May 6[ and]7, 2024, where [he] inspected the parking garage access and exit 
system[s]; monitored the garage automatic gate operations; and took measurements of the 
entry/exit system on the southeast corner of the facility." Id. at 1. He also reviewed 
surveillance footage and photographs, as well as the complaint, answers, responses, and 
deposition transcripts in this case. 
In reaching his conclusions, Mr. Melchior relied on operational risk management 
methodology and frameworks formalized and standardized by the International 
Organization for Standardization ("ISO") and the American National Standards Institute 
("ANSI"). In particular, he considered ISO 31000, Risk Management Guidelines, ANSI 
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Zl0, Occupational Health and Safety Management Systems (a hierarchy of health and 
safety controls), and ANSI 2535-2011, Safety Alerting Standards. 
Although the vast majority of Mr. Melchior's opinions are directed to what St. 
Albans failed to do, he offers an additional opinion regarding any duty owed by Hampton 
Inn to Plaintiffs as follows: 
As explained herein, the[ re] is testimony that St. Albans did prohibit 
motorcycle usage of the garage, and St. Albans verbally communicated that 
prohibition to Hampton Inn. The testimony from Hampton Inn does not 
align with that of St. Albans, and there is no evidence in discovery that such 
prohibition of motorcyclists was communicated to Hampton Inn - however, 
there is evidence of the prohibition by way of a decal sticker that was in 
place on the ticketing station leading up to the [ date of injury]. As such, it is 
unclear what, if any, knowledge Hampton Inn had of (1) a prohibition of 
motorcycle use of the garage; and (2) a hazardous condition of potential 
gate impact to motorcyclists. However, if Hampton Inn was aware of either 
of these two conditions prior to the [ date of injury], then Hampton Inn 
should not have directed Mr. and Mrs. Brun to park in the garage. Instead, 
with knowledge that Mr. and Mrs. Brun were traveling by motorcycle, 
Hampton Inn should have explicitly directed Mr. and Mrs. Brun to not park 
in the garage. 
(Doc. 44-2 at 22.) 
II. Conclusions of Law and Analysis. 
Hampton Inn does not challenge "Mr. Melchior's qualifications as an expert 
generally but rather objects to the opinions he asserted with respect to any duty it may 
have had to the Plaintiffs to warn them of the prohibition of motorcycles in the parking 
garage and/or hazardous conditions therein." (Doc. 43 at 2.) It argues that Mr. Melchior's 
opinions must be excluded because they: (1) are "not made within his expertise as a 
Registered Architect and Professional Engineer"; (2) are irrelevant; (3) are not the 
product of reliable principles and methods reliably applied to the facts; and 
(4) improperly usurp the jury's role in applying the law to the facts. (Doc. 43 at 3-4.) 
Under Federal Rule of Evidence 702, "[i]f scientific, technical, or other 
specialized knowledge will assist the trier of fact to understand the evidence or to 
determine a fact in issue an expert may testify thereto." Daubert v. Merrell Dow Pharm., 
Inc., 509 U.S. 579, 589 (1993) (emphasis and internal quotation marks omitted). In 
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determining the reliability of expert testimony, the district court must engage in "a 
preliminary assessment of whether the reasoning or methodology underlying the 
testimony is scientifically valid and of whether that reasoning or methodology properly 
can be applied to the facts in issue." Id. at 592-93. Relevant factors include "the theory's 
testability, the extent to which it 'has been subjected to peer review and publication,' the 
extent to which a technique is subject to 'standards controlling the technique's operation,' 
the 'known or potential rate of error,' and the 'degree of acceptance' within the 'relevant 
scientific community."' United States v. Romano, 794 F.3d 317, 330 (2d Cir. 2015) 
(quoting Daubert, 509 U.S. at 593-94). However, "the test of reliability is flexible, and 
Daubert's list of specific factors neither necessarily nor exclusively applies to all experts 
or in every case." Restivo v. Hessemann, 846 F.3d 547,576 (2d Cir. 2017), cert. denied, 
138 S. Ct. 644 (2018) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)) 
(internal quotation marks omitted). 
In applying Rule 702, the district court functions as a gatekeeper, ensuring "that an 
expert's testimony both rests on a reliable foundation and is relevant to the task at hand." 
Amorgianos v. Nat'/ R.R. Passenger Corp., 303 F.3d 256,265 (2d Cir. 2002) (citing 
Daubert, 509 U.S. at 597) (internal quotation marks omitted). "The consideration has 
been aptly described ... as one of 'fit.' 'Fit' is not always obvious, and scientific validity 
for one purpose is not necessarily scientific validity for other, unrelated purposes." 
Daubert, 509 U.S. at 591 (citation omitted). The party proffering expert testimony bears 
the burden of establishing its admissibility "by a preponderance of proof." Id. at 592 n.10. 
Mr. Melchior's opinion regarding Hampton Inn's duty to Plaintiffs is grounded in 
his education and experience in operational risk management rather than his expertise in 
architecture and engineering. Relying on that expertise, Mr. Melchior forms his opinion 
by applying operational risk management methodology and frameworks formalized and 
standardized by the ISO and ANSI, which are considered reliable principles and methods. 
See, e.g., Nike, Inc. v. StockX LLC, 2024 WL 3361411, at* 11 (S.D.N.Y. July 10, 2024) 
( characterizing the ISO as "a sufficiently reliable source" when determining whether to 
admit expert testimony); Del Cid v. Beloit Corp., 901 F. Supp. 539, 545 (E.D.N.Y. 1995) 
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("ANSI standards are relied upon by the manufacturers of machinery and by experts in 
various fields to conduct evaluations of the safety of machinery and processes[.]"). 
In their opposition to Hampton Inn's motion, Plaintiffs characterize Hampton Inn 
as "part of the chain of operational control for safety in the parking garage." (Doc. 44 at 
4.) The Expert Report, however, states that "St. Albans was in exclusive control over the 
operational infrastructure of the parking facility[.]" (Doc. 44-2 at 15.) Mr. Melchior's 
opinion with respect to Hampton Inn's duty therefore does not represent "a reliable 
application of the principles and methods to the facts of the case." Fed. R. Evid. 702. It 
also does not appear to be based on his expertise but is, instead, a generalized opinion as 
to what a hotel owner should do when it knows of a physical risk to its hotel guests. In 
this respect, there is no "fit" between Mr. Melchior's expertise and his opinion. Daubert, 
509 U.S. at 591 (internal quotation marks and citation omitted). 
"Rule 702 requires the district court to make a third inquiry: whether the expert's 
testimony ( as to a particular matter) will 'assist the trier of fact."' Nimely v. City of New 
York, 414 F.3d 381, 397 (2d Cir. 2005). "[E]xpert testimony that seeks to address lay 
matters which the jury is capable of understanding and deciding without the expert's help 
is not relevant and is therefore inadmissible[.]" United States v. Jiau, 734 F.3d 147, 154 
(2d Cir. 2013) (alterations adopted) (internal quotation marks and citation omitted); see 
also In re Dig. Music Antitrust Litig., 321 F.R.D. 64, 75 (S.D.N.Y. 2017) ("[E]xpert 
testimony is not helpful if it simply addresses 'lay matters which a jury is capable of 
understanding and deciding without the expert's help."') (quoting United States v. 
Mulder, 273 F.3d 91, 101 (2d Cir. 2001)). 
Hampton Inn claims that "Mr. Melchior's proffered testimony ... is based solely 
on the conflicting deposition testimony of [Hampton Inn] and the City of St. Albans" and 
thereby usurps the jury's role of weighing the credibility of conflicting witnesses and 
applying the law to the facts. (Doc. 43 at 4.) A conditional opinion dependent on the 
jury's determination of witness credibility is permissible. See Williams v. Illinois, 567 
U.S. 50, 57 (2012) ("Under settled evidence law, an expert may express an opinion that is 
based on facts that the expert assumes, but does not know, to be true."); see also 
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McCormick v. Cleaver Brooks Co., Inc., 561 F. App'x 121, 123 (2d Cir. 2014) (finding 
that "[i]t is well within the district court's discretion to permit expert testimony" in 
response to hypothetical questions); United States v. Asare, 2019 WL 5693477, at *5 
(S.D.N.Y. Nov. 4, 2019) ("[T]here is nothing improper about [an expert witness] forming 
an opinion contingent on certain facts being true."). Even "[w]here the credibility of [a] 
witness is an issue, [an] expert may assume the truth of [the witness'] trial testimony and 
thereafter offer an opinion based on the substance of the testimony." United States v. 
Scop, 846 F.2d 135, 143 (2d Cir. 1988). As Plaintiffs correctly point out, Mr. Melchior 
"offers no opinion on what [Hampton Inn] knew or did not know, only what operational 
risk management princip[le]s require depending on the state of knowledge." (Doc. 44 at 
5.) Accordingly, provided Mr. Melchior assumes credibility rather than weighing it, his 
opinion is not inadmissible as a usurpation of the jury's function. 
Although Plaintiffs contend that Mr. Melchior's "opinion will assist the jury in 
understanding what reasonable facility operators do ( or should do) when they have 
knowledge of hazards affecting their guests[,]" (Doc. 44 at 4), if the jury were presented 
with evidence of Hampton Inn's knowledge of either the garage's prohibition on 
motorcycles or the access gate's danger to motorcyclists, it would not need the help of an 
expert witness to understand those facts. See Rivers v. Kroger Texas L.P., 2009 WL 
2596601, at *2 (N.D. Tex. Aug. 21, 2009) ("Expert testimony is not necessary for a jury 
to find that it is unreasonable for a grocery store, with actual knowledge that a water 
puddle exists in an aisle traversed by customers, to leave the puddle in place or to fail to 
warn customers of its presence. This fact is within the ken of lay jurors."). 
Moreover, it is the court, not an expert witness, who instructs the jury on whether a 
duty exists and, if so, the law governing that duty. See Montague v. Hundred Acre 
Homestead, LLC, 2019 VT 16,114,209 Vt. 514,520,208 A.3d 609,614 ("The existence 
of a duty is a question of law to be decided by the court.") (internal quotation marks and 
citation omitted); Malaney v. Hannaford Bros. Co., 2004 VT 76,121, 177 Vt. 123, 133, 
861 A.2d 1069, 107 6 ("The trial court has the duty to instruct the jury on all issues 
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essential to the case, including the standard of care that applies in a negligence action.") 
(internal quotation marks and citation omitted). 
Because the jury can determine for itself whether it was reasonable for Hampton 
Inn to direct Plaintiffs to the garage if it knew the garage prohibited or posed a danger to 
motorcyclists, and because it is the court's responsibility to decide whether a duty exists, 
Mr. Melchior's opinion regarding Hampton Inn's duty is not helpful to the jury, usurps 
the role of the court, and is therefore inadmissible. See Fed. R. Evid. 702; see also Ojeda 
v. Metro. Transp. Auth., 41 F.4th 56, 70 (2d Cir. 2022) ("It is well settled that expert 
testimony is unnecessary in cases where jurors are as capable of comprehending the 
primary facts and of drawing correct conclusions from them as are witnesses possessed of 
special or peculiar training.") (internal quotation marks and citation omitted). 
CONCLUSION 
For the foregoing reasons, Hampton Inn's motion in limine to exclude the opinion 
of George W. Melchior with respect to any duty Hampton Inn had to warn Plaintiffs not 
to park in the garage is GRANTED. (Doc. 43.) 
SO ORDERED. 
~ Dated at Burlington, in the District of Vermont, this IS day of June, 2026. 
c~1ud;e 
United States District Court 
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