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O'Malley v. Royal Caribbean Cruises, Ltd.

United States District Court, S.D. Florida

June 13, 2018



          EDWIN G. TORRES, United States Magistrate Judge

         This matter is before the Court on Royal Caribbean Cruises, Ltd.'s (“Defendant”) Daubert motion to strike and preclude the testimony of Doreen O'Malley's (“Plaintiff”) expert witness Edward Gras (“Mr. Gras”). [D.E. 44]. On May 31, 2018, Plaintiff timely filed her response [D.E. 48] and Defendant replied on June 7, 2018. [D.E. 50]. Therefore, Defendant's motion is now ripe for disposition. Having reviewed the motion, response, reply, and relevant authority, and for the reasons discussed below, Defendant's motion is GRANTED.

         I. BACKGROUND

         This case is a personal injury action in which the Plaintiff seeks to recover for physical injuries sustained as a result of an accident onboard Defendant's vessel, Anthem of the Seas. Plaintiff has asserted a single count of negligence against Defendant based on a theory that Defendant allowed ping pong balls to collect on a roller skating rink where Plaintiff was roller skating, which resulted in her falling and breaking her ankle. Plaintiff alleges that there was no netting to prevent foreign objects from falling on the skating rink surface or a warning sign to alert for ping pong balls falling on the skating surface. Plaintiff also claims that the ship's crew members did not remedy the dangerous condition. Therefore, Plaintiff demands judgment against Defendant for compensatory damages.


         The decision to admit or exclude expert testimony is within the trial court's discretion and the court enjoys “considerable leeway” when determining the admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed.R.Evid. 702.[1] The party offering the expert testimony carries the burden of laying the proper foundation for its admission, and admissibility must be shown by a preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (“The burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion, whether the proponent is the plaintiff or the defendant in a civil suit, or the government or the accused in a criminal case.”).

         “Under Rule 702 and Daubert, district courts must act as ‘gate keepers' which admit expert testimony only if it is both reliable and relevant.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589). The purpose of this role is “to ensure that speculative, unreliable expert testimony does not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). Also, in its role as “gatekeeper, ” its duty is not “to make ultimate conclusions as to the persuasiveness of the proffered evidence.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)

         To facilitate this process, district courts engage in a three part inquiry to determine the admissibility of expert testimony:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted). The Eleventh Circuit refers to the aforementioned requirements as the “qualification, ” “reliability, ” and “helpfulness” prongs and while they “remain distinct concepts”; “the courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing Quiet Tech, 326 F.3d at 1341).

         Furthermore, in determining the reliability of a scientific expert opinion, the Eleventh Circuit considers the following factors to the extent possible:

(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. Notably, however, these factors do not exhaust the universe of considerations that may bear on the reliability of a given expert opinion, and a federal court should consider any additional factors that may advance its Rule 702 analysis.

Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are not “a definitive checklist or test, ” Daubert, 509 U.S. at 593, but are “applied in case-specific evidentiary circumstances, ” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus “solely on principles and methodology, not on conclusions that they generate.” Daubert, 509 U.S. at 594-95. It is also important to note that a “district court's gatekeeper role under Daubert ‘is not intended to supplant the adversary system or the role of the jury.'” Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001)). Rather, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580; see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must do 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.'”) (quoting Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010)).

         III. ANALYSIS

         Defendant's motion seeks to exclude the opinions and testimony of Plaintiff's liability expert, Mr. Gras, because he is unqualified to testify in this case and his methodology - or lack thereof - is not sufficiently reliable. According to Defendant, Mr. Gras proffers the following opinions in his report:

1. Passengers aboard an oceangoing vessel are afforded a heightened duty of care in protecting them ...

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