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Leroux v. NCL (Bahamas) Ltd.

United States District Court, S.D. Florida

June 19, 2017

SHERILYN J. LEROUX, Plaintiff,
v.
NCL (BAHAMAS) LTD., Defendant.

          ORDER ON DEFENDANT'S DAUBERT MOTION TO STRIKE PLAINTIFF'S EXPERT WITNESSES RANDALL JAQUES AND JOHN LAUGHLIN

          ANDREA M. SIMONTON, CHIEF UNITED STATES MAGISTRATE JUDGE.

         This matter came before the Court upon Defendant's Daubert Motion to Strike Plaintiff's Expert Witnesses Randall Jaques and John Laughlin, ECF. No. [37]. The Plaintiff has filed a Response to the Motion, ECF No. [38], and the Defendant has filed a Reply, ECF No. [42]. The Honorable Kathleen M. Williams has referred the Motion to the undersigned Magistrate Judge, ECF No. [72]. 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 adequate lighting.

         I. BACKGROUND

         This 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. [1]. 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. [1] 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. [1] 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. [6] at 2-3.

         In her 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. [37]. 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. [42].

         II. MOTION TO STRIKE

         The 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. [37] 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.

         The Defendant has also moved to strike the testimony of John Laughlin, ECF No. [37]. Defendant contends that Mr. Laughlin's testimony should be excluded because it is unreliable and lacks discernible methodology, ECF No. [37] 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.

         The Plaintiff has submitted a response in opposition to the Defendant's Motion as well as amended reports from both Jaques and Laughlin, ECF No. [38]. 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. [38] 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 strike.

         As 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 lay juror.

         Plaintiff 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. [38] at 18.

         In 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. [42]. 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.

         As to 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. [42] at 6.

         III. LEGAL FRAMEWORK AND ANALYSIS

         A. Admissibility of Expert Testimony

         Federal 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.

         District 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)).

         The 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.[1] 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. Id.

         However, 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 (1986)).

         B. Application of Daubert and Rule 702 to Jaques' Testimony

         1. Randall Jaques' Preliminary Rule 26 Report[2]

         As 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.

         In the 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 ...

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