United States District Court, S.D. Florida
SHERILYN J. LEROUX, Plaintiff,
NCL (BAHAMAS) LTD., Defendant.
ORDER ON DEFENDANT'S DAUBERT MOTION TO STRIKE
PLAINTIFF'S EXPERT WITNESSES RANDALL JAQUES AND JOHN
M. SIMONTON, CHIEF UNITED STATES MAGISTRATE JUDGE.
matter came before the Court upon Defendant's Daubert
Motion to Strike Plaintiff's Expert Witnesses Randall
Jaques and John Laughlin, ECF. No. . The Plaintiff has
filed a Response to the Motion, ECF No. , and the
Defendant has filed a Reply, ECF No. . The Honorable
Kathleen M. Williams has referred the Motion to the
undersigned Magistrate Judge, ECF No. . For the following
reasons, the undersigned concludes that the Motion should be
granted, in part, and denied, in part. Specifically, to the
extent that the Defendant seeks to strike the testimony of
Randall Jaques, the Motion is Granted, and to the extent that
Defendant seeks to strike the testimony of John Laughlin, the
Motion is Denied, except as to those opinions regarding
personal injury action was initiated when Plaintiff Sherilyn
LeRoux (“Plaintiff” or “LeRoux”)
filed a Complaint against Defendant NCL (Bahamas) Ltd.,
(“Norwegian” or “NCL”) related to
injuries the Plaintiff suffered while aboard a cruise ship
operated by Defendant Norwegian, ECF No. . In the
Complaint, Plaintiff alleges that on or about May 31, 2015,
while she was a fare paying passenger aboard the M/V
Norwegian Epic, she sustained serious and disabling injuries
to her right knee, hip and foot when she tripped over the
threshold between her suite and patio, ECF No.  at 2.
Plaintiff contends that her injuries were caused by the
negligence of NCL by: 1) failing to adequately warn
passengers of the dangers associated with a raised threshold;
and, 2) not having a threshold that was designed and built to
not constitute a tripping hazard, ECF No.  at 2. In the
Defendant's Answer and Affirmative Defenses, the
Defendant contends, inter alia, that the
Plaintiff's own negligence contributed to the accident,
that the Defendant had no notice or knowledge of the alleged
unreasonably dangerous condition and therefore had no duty to
warn the Plaintiff, and that the condition was open and
obvious and should have been observed by Plaintiff through
the ordinary use of her senses, ECF No.  at 2-3.
Supplemental Disclosures, the Plaintiff has identified
several experts, two of whom are at issue in the
Defendant's Daubert Motion to Strike, Randall Jaques, a
Maritime Safety Consultant, and John Laughlin, an engineer,
ECF No. . The Plaintiff has filed a Response to the
Motion to Strike, which includes amended reports from the
witnesses at issue, ECF Nos. [38-2] [38-3]. The Defendant has
filed a Reply, ECF No. .
MOTION TO STRIKE
Defendant has filed a Motion to Strike seeking to exclude
Randall Jaques (“Jaques”), from testifying as a
maritime safety expert in this action contending that Jaques
is unqualified to render opinions that are beyond issues of
safety and security, ECF No.  at 2. The Defendant
contends that Jaques' opinions are bare and anecdotal and
are not support by any methodology. Defendant further argues
that the opinions consist of conclusory statements that are
not helpful and thus fail to satisfy the requirements of
Federal Rules of Evidence 702 and 703, as well as the
requirements set forth in Daubert v. Merrell Dow Pharms,
Inc., 509 U.S. 579 (1993). In support of its Motion, the
Defendant notes that Jaques' testimony has been stricken
or limited by courts in the past.
Defendant has also moved to strike the testimony of John
Laughlin, ECF No. . Defendant contends that Mr.
Laughlin's testimony should be excluded because it is
unreliable and lacks discernible methodology, ECF No.  at
11. Defendant contends that Laughlin fails to cite any
statistics, reports or publications to support his contention
that the placement of stickers or striping on the threshold
could eliminate a trip hazard and that the placement of such
materials is a common method of marking step nosing to make
them more visible. Defendant also criticizes Laughlin's
opinion regarding adequate lighting and contends that
Laughlin did not perform any type of lighting testing and did
not examine the threshold under similar lighting conditions,
but instead merely opines that the lighting was inadequate
because it occurred at dusk. Finally, the Defendant contends
that Laughlin's testimony will not assist the trier of
fact because the opinion that a sticker or stripe on the
threshold would have warned passengers of a trip hazard is
not beyond the understanding of an average lay person.
Plaintiff has submitted a response in opposition to the
Defendant's Motion as well as amended reports from both
Jaques and Laughlin, ECF No. . In the written response,
the Plaintiff contends that Jaques has worked as a security
officer for 15 years on several different cruise lines where
his principal duty was to personally investigate “every
accident and its cause that occurred on the vessel, on the
pier and during shore excursions.” ECF No.  at 3.
Plaintiff contends that he is therefore qualified to render
opinions regarding ship industry standards. In support of
this contention, after noting that a witness may be deemed to
be an expert based upon his/her experience and/or training,
the Plaintiff cites an opinion from the case of Joyce
Higgs v. Costa Crociere, No. 15-cv-60280-JIC (S.D. Fla.
Jan. 12, 2016) wherein the Court permitted Jaques to testify
on industry standards for cruise ship safety practices and
causation. Plaintiff further contends that Jaques'
opinions are reliable because he reviewed various materials,
including NCL's photos and measurements and photos of
identical thresholds on similar cruise ships. The Plaintiff
thus asserts that Jaques' opinions on the standard of
care concerning floor-level obstructions meets the standards
under Daubert and Federal Rule of Evidence 702.
Further, Plaintiff contends that Jaques' opinions will be
helpful to the trier of fact and do not offer improper legal
conclusions, but rather are opinions regarding NCL's
violation of industry standards. Finally, Plaintiff contends
that any deficiencies in Jaques' opinions go to the
weight and not admissibility of those opinions and should be
challenged on cross-examination and not through a motion to
Laughlin, the Plaintiffs emphasize his education, training
and experience as a forensics engineer who has reconstructed
various accidents including those involving walking surfaces.
Plaintiff argues that given Laughlin's extensive
expertise, his opinions are not required to provide
citations, statistics or reports, but may be based on his own
skill, education and experience. Further, Plaintiff argues
that to the extent that the International Building Code that
is referenced in Laughlin's opinions is not applicable to
ships, information related to that Code is admissible to
demonstrate how a reasonable person may have acted based upon
the standards in the Code. Plaintiff further dismisses
Defendant's contention regarding Laughlin's opinions
regarding adequate lighting by arguing that Laughlin is
entitled to assume the disputed fact that the incident
occurred at dusk in concluding that the lighting was
inadequate. Plaintiff additionally argues that engineering
and human factors are not within the common knowledge of a
requests that if the Court deems that the Plaintiff's
expert reports are deficient, in the alternative to striking
the opinions of Jaques and Laughlin, the Plaintiff be
permitted to supplement those disclosures and reports, ECF
No.  at 18.
Reply, the Defendant first contends that the amended reports
from the experts submitted for the first time with
Plaintiff's opposition should be stricken because they
are untimely and were filed after the Defendant had filed its
Motion to Strike, ECF No. . In addition, as to Jaques,
the Defendant contends that he is not qualified to render any
engineering opinions or opinions related to the use and
placement of warning signs because his experience is in
security and law enforcement. The Defendant then cites
various other opinions in which Jaques has been excluded as
an expert as to certain topics including Mendel v. Royal
Caribbean Cruises Ltd., 10-cv-23398 (S.D. Fla. 2010),
Fraley v. Oceania Cruise, Inc., No. 13-20244-CIV,
2015 WL 1131015 (S.D. Fla. March 12, 2015), and
Umana-Fowler v. NCL (Bahamas), Ltd., No.
13-cv-23491, 2014 WL 4832297, at *1 (S.D. Fla. 2013). The
Defendant further contends that because Jaques did not
inspect the ship and relied on photographs from another ship
which displayed a different doorway than Plaintiff's
cabin doorway, his opinions are not based upon a reliable
methodology. Finally the Defendant contends that Jaques'
opinions are not helpful to the trier of fact because those
opinions only provide impermissible legal conclusions
disguised as expert testimony.
Laughlin, in its Reply, the Defendant only contends that his
opinions are unreliable because he relied, in part, on the
International Building Code, which does not apply to cruise
ships, ECF No.  at 6.
LEGAL FRAMEWORK AND ANALYSIS
Admissibility of Expert Testimony
Evidence Rule 702 governs the admission of expert testimony
in federal court, and provides:
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, if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
courts have a duty under Rule 702 to “ensure that any
and all scientific testimony or evidence admitted is not only
relevant, but reliable.” Wilson v. Taser Int'l,
Inc., 303 F.App'x 708, 714 (11th Cir. 2008) (citing
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993)). Thus, a Court performs a “gatekeeping
role” regarding admissibility of expert testimony,
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993)).
Eleventh Circuit has set out three requirements that an
expert must meet before his or her opinions may be admitted.
Hughes v. Kia Motors Corp., 766 F.3d 1317, 1328
(11th Cir. 2014). First, the expert must be qualified on the
matter about which he or she intends to testify.
Id., citing City of Tuscaloosa v. Harcros
Chemicals, Inc., 158 F.3d 548, 562 (11th Cir. 1998).
Second, the expert must employ reliable methodology.
Id. Third, the expert's testimony must be
able to assist the trier of fact through the application of
expertise to understand the evidence or fact in issue.
it is not the role of the district court to make ultimate
conclusions as to the persuasiveness of the proffered
evidence.” Rosenfeld v. Oceania Cruises, Inc.,
654 F.3d 1190 (11th Cir. 2011) (quoting Quiet Tech. DC-8,
Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th
Cir. 2003). “Quite the contrary, ‘vigorous
cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.'” Quiet Tech., 326
F.3d at 1341 (quoting Daubert, 509 U.S. at 596).
Indeed, “in most cases, objections to the inadequacies
of a study are more appropriately considered an objection
going to the weight of the evidence rather than its
admissibility.” Hemmings v. Tidyman's
Inc., 285 F.3d 1174, 1188 (9th Cir. 2002). See also
Quiet Tech., 326 F.3d at 1345 (noting that,
“[n]ormally, failure to include variables will affect
the analysis' probativeness, not its admissibility”
(quoting Bazemore v. Friday, 478 U.S. 385, 400
Application of Daubert and Rule 702 to Jaques'
Randall Jaques' Preliminary Rule 26 Report
stated above, the Defendant seeks to exclude the testimony of
Plaintiff's expert Jaques based upon his lack of
qualifications, the unreliable methodology he utilized in
arriving at his opinions, and because his testimony is not
helpful to the trier of fact.
first paragraph of the Preliminary Rule 26 report, Jaques
states that he was retained by the Chaffin Law firm to
provide opinions in the LeRoux case related to why Mrs.
LeRoux tripped and fell when coming inside of her cabin from
the balcony, and to formulate opinions as to why NCL failed
to place proper warning signs on the glass balcony doors, and
warning yellow “Watch your step” striping along
the base of the threshold, ECF No. [37-1] at 29. Jaques
further states that he was asked to conduct a site inspection
onboard the Norwegian EPIC but was unable to do so because
the vessel was located in Europe. Jaques' Initial
Preliminary Report offers the following opinions:
1. Norwegian cruise lines failed to apply or attach any kind
of visual warning sign to the glass door, both on the inside
of the stateroom and on the outside. This lack of visual
safety warning to “Watch your Step, High
Threshold” if mounted can be seen by the passenger
immediately prior to exiting and entering the balcony door.
Because of the carless ...