NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 20-2516

__________

JILL TOLEDO,

 Appellant

v.

MGM RESORTS INTERNATIONAL, DBA Borgata Hotel Casino & Spa; 

JOHN DOE 1-10; ABC CORPORATIONS 1-10; MARINA DISTRICT 

DEVELOPMENT COMPANY, LLC, DBA Borgata Hotel Casino and Spa

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1:17-cv-04218)

Honorable Robert B. Kugler, U.S. District Judge

__________

Submitted Under Third Circuit L.A.R. 34.1(a)

on November 18, 2021

Before: CHAGARES, BIBAS, and FUENTES, Circuit Judges

(Opinion filed: December 10, 2021)

__________

OPINION*

__________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

FUENTES, Circuit Judge.

Plaintiff-Appellant Jill Toledo appeals the District Court’s grant of summary 

judgment to Defendant-Appellee Marina District Development Company LLC d/b/a 

Borgata Hotel Casino & Spa (“Borgata”) on her negligence claim. She argues that the 

District Court erred in excluding her expert witness, and that even if the expert was 

properly excluded, Borgata is not entitled to summary judgment because genuine issues 

of material fact remain. For the following reasons, we will affirm.

I.

At approximately 10:00 a.m. on the morning of Saturday, June 20, 2015, Toledo 

tripped while walking through a retail area of Borgata. Although the exact details of 

what happened are in dispute, Toledo was wearing flip flops and testified that her left 

foot got stuck on something on the floor, causing her to stumble forward. When she went 

back to look at the area, she observed a metal expansion joint raised above the tile. 

Toledo sued Borgata for negligence in the United States District Court for the District of 

New Jersey, claiming that she tripped on a hazardous condition that Borgata had a duty to 

repair or to warn her about.

1

To support her claim, Toledo retained James Kay, a retired general contractor and 

high school carpentry teacher. After inspecting the floor at Borgata in April 2019 (almost 

1 Toledo originally named MGM Resorts International as the company doing business as 

Borgata but later amended her complaint to name Marina District Development Company 

LLC as the proper Borgata defendant. Toledo’s amended complaint also names as 

defendants a number of fictitious individuals and corporations allegedly responsible for 

her injuries.
3

four years after the incident), Kay authored a two-page expert report that focuses on a

grout joint between the tile surface of the floor and the metal expansion joint in the area 

where Toledo tripped. The report states that, at the time of the inspection, the grout joint 

was 5/16 of an inch wide and the expansion joint was elevated 3/16 of an inch above the 

surface of the floor. This elevation was up to code. As Kay acknowledged in his report 

and a later deposition, several sources, including the Americans with Disabilities Act, 

permit up to a quarter-inch change in elevation in a walking surface. The report goes on 

to find, however, that the grout joint created a tripping hazard in 2015 because two 

pictures taken at the time of the incident indicate that “the grout in the joint . . . had 

deteriorated to an unacceptable depth,” creating an “exposed channel” as deep as 1/2 of 

an inch.

2 And in his deposition testimony, Kay identified an additional problem with the 

grout joint: it was not “up to standard” because it was wider than 1/8 of an inch.3 When 

asked where that standard came from, Kay testified that it is not a code requirement but 

rather an industry standard based on his experience in the industry.

Following Kay’s deposition, Borgata moved to exclude his testimony under Rule 

702 of the Federal Rules of Evidence, arguing that he was not qualified to testify as an 

expert and that his opinions were not based on reliable principles and methods. And 

because Borgata argued that Toledo has no evidence to support her claim of negligence 

without Kay’s testimony, it moved for summary judgment in the same filing. After 

hearing argument on the motion, the District Court agreed with Borgata, excluding Kay’s 

2 A056. 

3 A084–85. 
4

proposed expert testimony and granting summary judgment to the defendants on all 

claims. Toledo timely appealed.

II.4

Toledo first argues that “[t]he District Court erred when deciding [Kay] is not 

qualified” to testify as an expert witness.5 The problem with this argument is that it is 

predicated on a misunderstanding of the record below. The District Court did not 

exclude Kay for lack of sufficient qualifications under Rule 702. In fact, it explicitly 

declined to decide that issue. Instead, the District Court excluded Kay’s expert testimony 

because it found no support for his assertion that the grout joint at Borgata violated an 

industry standard by being wider than 1/8 of an inch. The District Court explained that 

there is “nothing in the record . . . that demonstrates that this is a violation of any industry 

standard” because Toledo could not locate a source for the purported standard and there 

4 The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under 

28 U.S.C. § 1291. We exercise “plenary review over a District Court’s grant of summary 

judgment.” Razak v. Uber Techs., 951 F.3d 137, 144 (3d Cir. 2019). A party is entitled 

to summary judgment if there is “no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual 

dispute is “genuine” if the “evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A 

factual dispute is “material” if it “might affect the outcome of the suit under the 

governing law.” Id. A court reviewing a motion for summary judgment must view the 

evidence in the light most favorable to the nonmoving party. Razak, 951 F.3d at 144.

But the court must grant the motion if, “after adequate time for discovery,” the 

nonmoving party has failed to “make a showing sufficient to establish the existence of an 

element essential to [its] case, and on which [it] will bear the burden of proof at trial.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We review a district court’s decision 

to admit or exclude expert testimony for abuse of discretion. Pineda v. Ford Motor Co., 

520 F.3d 237, 243 (3d Cir. 2008) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 

152 (1999)).

5 Toledo Amend. Br. at 7.
5

has been “no acknowledgment whatsoever” of the standard by someone in the relevant 

industry.6 

By only raising the issue of Kay’s qualifications on appeal, Toledo has waived any 

other arguments about the District Court’s decision to exclude him as an expert witness.7 

But even if we construe Toledo’s arguments more broadly, we find no abuse of 

discretion. The District Court was within its discretion to exclude Kay’s testimony about 

the 1/8-of-an-inch industry standard because that opinion is neither “based on sufficient 

facts or data” nor “the product of reliable principles and methods” under Rule 702.8 Kay 

testified, for example, that he had never personally installed tile next to an expansion 

joint and had not measured a gap between tile and an expansion joint prior to his work on

this case. The fact that Kay has “seen” expansion joints over the years and believes the 

grout joints abutting those expansion joints were 1/8 of an inch based on his “eye” is not 

a sufficiently reliable methodology.

9

 And although the District Court failed to explain its 

reason for excluding Kay’s additional opinion that the grout in the joint had deteriorated 

to an “unacceptable depth” in 2015, thereby creating an “exposed channel” as deep as 1/2 

6 A37.

7 See, e.g., In re: Asbestos Prods. Liab. Litig. (No. VI), 873 F.3d 232, 237 (3d Cir. 2017) 

(“As a general matter, an appellant waives an argument in support of reversal if it is not 

raised in the opening brief.”); Barna v. Board of Sch. Dirs. of Panther Valley Sch. Dist., 

877 F.3d 136, 145 (3d Cir. 2017) (“We have long recognized, consistent with Federal 

Rule of Appellate Procedure 28(a) and Third Circuit Local Appellate Rule 28.1, that an 

appellant’s opening brief must set forth and address each argument the appellant wishes 

to pursue in an appeal.”).

8 Fed. R. Evid. 702(b) and (c).

9 A083.
6

of an inch,10 that opinion also runs afoul of Rule 702 for similar reasons: it is based on 

insufficient facts and data, and is the product of an unreliable methodology, because it is 

based solely on Kay’s review of two photographs taken at the time of the incident (almost 

four years prior to his inspection of the floor in April 2019).

11

 We therefore find no 

abuse of discretion in the District Court’s decision to exclude Kay’s expert testimony.

Toledo also argues that the District Court erred in granting summary judgment to 

Borgata because genuine issues of material fact remain even without Kay’s excluded 

expert testimony. We disagree. To prevail on a claim of negligence in New Jersey, a 

plaintiff must establish: “(1) that the defendant owed a duty of care; (2) that the defendant 

breached that duty; (3) actual and proximate causation; and (4) damages.”

12

 Toledo has 

satisfied the first element of her claim because, as Borgata concedes, it owed her a duty 

of care as a business invitee. More specifically, Borgata owed Toledo a duty to “guard 

against any dangerous conditions on the property that [it] either [knew] about or should 

have discovered.”13 

The problem for Toledo’s claim is the second element. The District Court found 

that without Kay’s expert testimony, Toledo has no evidence that there was a defect in 

10 A056. 

11 Although the District Court failed to explain its basis for excluding this part of Kay’s 

testimony, we may affirm on any ground supported by the record. See Bradley v. West 

Chester Univ. of Pa. State Sys. of Higher Educ., 880 F.3d 643, 650 (3d Cir. 2018) (citing 

Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)).

12 Fernandes v. DAR Dev. Corp., 119 A.3d 878, 885–86 (N.J. 2015).

13 Stelluti v. Casapenn Enters., LLC, 1 A.3d 678, 691 (N.J. 2010) (cleaned up) (internal 

quotations omitted) (quoting Hopkins v. Fox & Lazo Realtors, 625 A.2d 1110, 1113 (N.J. 

1993)).
7

the floor at the time of the incident that breached Borgata’s duty of care. On appeal, 

Toledo argues that her claim should be allowed to proceed on the basis of the two 

photographs taken at the time of the incident, surveillance video that shows her tripping, 

and the fact that Borgata was required to keep the floor in good condition under 

applicable code. But even when viewed in the light most favorable to Toledo, this 

evidence is insufficient for a reasonable jury to find that Borgata breached its duty of 

care.14 The fact that Toledo tripped while walking through a retail area of the resort does 

not, by itself, establish that a dangerous condition existed, especially given that she was 

wearing flip flops at the time.

15 And although the two photographs taken at the time of 

the incident show the condition of the metal expansion joint and the adjacent grout joint 

at the time Toledo tripped, they cannot support a reasonable finding of negligence on 

their own because they are facially ambiguous and lack critical information, such as the 

scale of the objects depicted. It is therefore impossible to tell from the photographs

whether the portion of the floor depicted was safe and compliant with code at the time 

Toledo tripped, or whether it created a tripping hazard that breached Borgata’s duty of 

care. Although it is ultimately not our role to weigh the evidence at this stage, to

overcome Borgata’s motion for summary judgment, Toledo needed to produce “evidence 

14 Anderson, 477 U.S. at 248.

15 Toledo has not argued that Borgata’s negligence can be inferred under the doctrine of 

res ipsa loquitur, which under New Jersey law permits a jury to infer negligence where 

“(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was 

within the defendant’s exclusive control; and (c) there is no indication in the 

circumstances that the injury was the result of the plaintiff’s own voluntary act or 

neglect.” Jerista v. Murray, 883 A.2d 350, 360 (N.J. 2005).
8

on which the jury could reasonably find for [her].”16 Because she failed to do so, the 

District Court properly granted summary judgment to Borgata.17

IV. 

For these reasons, we will affirm the District Court’s order granting summary 

judgment to the defendants.

16 Anderson, 477 U.S. at 252.

17 The District Court also found that Toledo failed to produce sufficient evidence of 

causation, the third element of her negligence claim. But because we find that she failed 

to make a sufficient showing on the second element—breach of duty—we do not reach the 

issue of causation.