(CN) - A man who was brained by a falling pane of glass at a restaurant cannot preclude evidence that a toy slingshot was found on the table where he was sitting, a federal judge ruled.
Richard States Jr., his wife, Amaryllis Roman, and their then-17-year-old son, B.L.S., sued the Fernwood Hotel and Resort in Harrisburg Federal Court in May 2012.
The family sat at a table under a greenhouse-like structure at the Wintergreens Restaurant at the Fernwood Hotel on June 19, 2010, when, much to their surprise, a window shattered and fell onto States' head.
He was severely injured and his wife and son were cut by flying shards, according to the lawsuit.
The family sued the hotel and its operators, Ha Ra Corp. and Resorts Group, alleging negligence, emotional distress and loss of consortium. They seek $75,000 in damages, plus costs and interest.
The defendants testified that a toy slingshot was found on the family's table, and that States' wife or son may have fired it at the overhead glass, causing it to shatter.
The plaintiffs sought to preclude the testimony, and a video demonstration of slingshot experiments conducted by defense expert Paul Verghese, a Ph.D and professional engineer.
U.S. District Judge Joel Slomsky partially denied the plaintiffs' motion, finding that since the jury must decide what caused the glass to fall, reference to the slingshot will be admitted.
"The relevancy of this evidence outweighs any possibility of unfair prejudice in the jury knowing that a toy slingshot was located on the table," Slomsky wrote. "Although the mere presence of the slingshot on the table without proof of an actual projectile may mislead the jury to some extent, a rational jury will be able to differentiate between the presence of the slingshot as a cause of the incident from the other factors that will be advanced by plaintiffs as a cause. For example, plaintiffs' expert, Morris Silberman, who has personal and practical experience over a 40-year career with a similar kind of glass, will testify that, among other reasons, the cause of the accident was defendants' failure to properly maintain the glass."
But the court rejected the video of Verghese using the slingshot to shatter glass, as the conditions are "not at all similar" to those at the time of the accident.
The expert's "modifications significantly altered the capability of the slingshot," Slomsky wrote. "Clipping the band in place serves to secure the rubber band and could allow for extra leverage. Covering the hole in the slingshot would allow the toy to launch smaller, heavier, more solid items. These conditions do not accurately reflect the slingshot on the day of the incident."
In addition, while the restaurant's roof was sloped, the glass panel that Verghese used in his experiment was placed perpendicular to the floor, according to the ruling.
Verghese's use of coins and marbles - though none were found at the scene - rather than the sponge ball found on the table, also weighs in the plaintiffs' favor.
"In fact, no object was found that could be attributed to being expelled from the toy slingshot that caused the accident," Slomsky wrote.
The judge added: "It would not be helpful for the jury to hear that a slingshot that was significantly modified could break a pane of glass if it fired a small, heavier, more solid object at the glass 15 times. Because the video demonstration has no probative value, it will be inadmissible at trial."
The court refused to prevent Verghese from testifying altogether, however.
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