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Lebron v. Royal Caribbean Cruises Ltd.

United States District Court, S.D. Florida

July 26, 2018




         This matter came before the Court upon Defendant's Motion to Strike/Daubert Motion Regarding Plaintiff's Expert Terry MacLaughlin, ECF No. [127]. The Motion is fully briefed, ECF Nos. [160] [162]. Also pending before the Court is Defendant's Motion to Exclude the Proposed Testimony of Dr. Ying Lu, Pursuant to Federal Rules of Evidence 403, 702, Daubert, ECF No. [126]. That Motion has also been fully briefed, ECF Nos. [161] [163]. The Honorable Kathleen M. Williams, United States District Judge, has referred the Motions to the undersigned Magistrate Judge, ECF No. [154]. For the following reasons, the Motion to Strike Terry MacLaughlin is granted in part, and denied in part, and the Motion to Exclude Dr. Lu's testimony is denied.

         I. BACKGROUND

         This personal injury action was initiated when Plaintiff Edgardo Lebron (“Lebron”) filed a Complaint against Defendant Royal Caribbean Cruises, Ltd., (“RCL”) alleging various causes of action sounding in negligence related to injuries sustained by Plaintiff when he fell and broke his ankle while ice skating aboard the Adventure of the Seas, a cruise ship operated by Defendant RCL, ECF No. [1].

         In its Answer, the Defendant has generally denied the substantive allegations in the Complaint and has raised several affirmative defenses including, comparative negligence and waiver of liability by the Plaintiff, ECF No. [67].

         The Defendant has filed the instant Motions seeking to exclude the Plaintiff's two experts in this action, Terry MacLaughlin and Dr. Ying Lu, generally contending that the experts are unqualified to offer their opinions on certain subjects, did not utilize reliable methodology in forming their opinions, and have offered opinions that are not helpful to the trier of fact. In addition, as to Terry MacLaughlin, the Defendant contends that several of his opinions were belatedly disclosed and should be stricken on that basis. Defendant further argues that Dr. Ying Lu's testimony would be unfairly prejudicial pursuant to Federal Rule of Civil Procedure 403 because it will likely mislead the jury.

         For the following reasons, the Defendant's Motion to Strike Terry MacLaughlin is granted in part, as set forth below, and denied as to his remaining opinions; and the Defendant's Motion to Exclude Dr. Lu's testimony is denied in its entirety.[1]


         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 Fed.Appx. 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 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 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.[2] 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.

         The burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence. Daubert, 509 U.S. at 592 n. 10, (citing Bourjaily v. United States, 483 U.S. 171, 175-76, (1987)).

         B. Qualifications

         As to the first of the these requirements, determining an expert's qualifications is not a stringent inquiry “and so long as the expert is minimally qualified, objections to the level of the expert's expertise [go] to credibility and weight, not admissibility.” Vision I Homeowners Ass'n, Inc. v. Aspen Specialty Ins. Co., 674 F.Supp.2d 1321, 1325 (S.D. Fla. 2009) (citations omitted); see also Johnson v. Big Lots Stores, Inc., 2008 WL 1930681, *14 (E. D. La. Apr. 29, 2008) (summarizing Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507 n.10 (5th Cir. 1999), and “explaining that after an individual satisfies the relatively low threshold for qualification, the depth of one's qualification may be the subject of vigorous cross-examination”); Martinez v. Altec Indus., Inc., 2005 WL 1862677, *3 (M.D. Fla. Aug. 3, 2005) (quoting Rushing, 185 F.3d at 507, “As long as some reasonable indication of qualifications is adduced ... qualifications become an issue for the trier of fact rather than for the court in its gate-keeping capacity”). After a review of the relevant issues and an expert's qualifications, “the determination regarding qualification to testify rests within the district court's discretion.” Clena Investments, Inc., 280 F.R.D. 653, 661 (S.D. Fla. 2012) (citing Berdeaux v. Gamble Alden Life Ins. Co., 528 F.2d 987, 990 (5th Cir. 1976).

         C. Methodology

         Proposed expert testimony must be supported by appropriate validation, what the Supreme Court has characterized as “good grounds based on what is known.” United States v. Frazier, 387 F.3d 1244, 1261 (11th Cir. 2004) (quoting Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, (1993)). A court cannot admit an expert who simply states that he used the “scientific method” to reach his conclusions; more is required. See Hughes v. Kia Motors Corp., 766 F.3d 1317 (11th Cir. 2014) (affirming district court's exclusion of expert testimony).

         To determine the reliability of an expert's testimony, the Supreme Court identified four factors that district courts should consider: 1) whether the expert's methodology has been tested or is capable of being tested; 2) whether the theory or technique used by the expert has been subjected to peer review and publication; 3) whether there is a known or potential error rate of the methodology; and 4) whether the technique has been generally accepted in the relevant scientific community. Daubert v. Merrell Dow Pharms., 509 U.S. 593-94, (1993). Such factors, however, are not exhaustive and are intended to be applied in a “flexible” manner. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). Courts within the Eleventh Circuit have recognized that in cases with non-scientific expert opinions, the Daubert factors may not be helpful in determining the reliability of an expert's methodology. See Regions Bank v. Kaplan, 8:12-cv-1837-T-17MAP, 2017 WL 1148322, at * 3 (M.D. Fla. Mar. 24, 2017) (“The opinions at issue are not scientific opinions and do not apply scientific techniques or theories; the Daubert factors as to reliability are not helpful in determining the reliability of the methodology.”); Clena Invs., Inc., 280 F.R.D. at 663 (“Turning to the area of non-scientific, experience-based testimony, while these same criteria may be used to evaluate its reliability, sometimes other factors may prove more useful.”). Thus, a “district court has considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004) (internal quotations and citations omitted).

         Further, the proponent of expert testimony need not show that the opinion proffered is scientifically correct, but only, based upon a preponderance of the evidence, that the opinion is reliable. Allison v. McGhan Medical Corp., 184 F.3d 1300, 1312 (11th Cir. 1999). Although, an expert must know “facts which enable him to express a reasonably accurate conclusion instead of mere conjecture or speculation, ” absolute certainty is not required. Jones v. Otis Elevator Co., 861 F.2d 655, 662 (11th Cir. 1988). Whether this logical basis has been established is within the discretion of the trial judge and the weaknesses in the underpinnings of the expert's opinion go to its weight rather than its admissibility. Id. Daubert requires that the proposed expert testimony be relevant and advance a material aspect of the case. McDowell v. Brown, 392 F.3d 1283, 1289-1290 (11th Cir. 2004).

         Finally, in assessing the validity of the expert's methodology, the district court may not “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). “The gatekeeper role ... is not intended to supplant the adversary system or the role of the jury.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311 (11th Cir. 1999) (alteration added). Instead, “[v]igorous 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.” Daubert, 509 U.S. at 596 (alteration added). The court's role is limited to analyzing if the evidence is unreliable and irrelevant “because of its inability to assist in factual determinations, its potential to create confusion, and its lack of probative value.” Allison, 184 F.3d at 1311-12.

         D. Helpfulness to the Trier of Fact

         The helpfulness prong of the inquiry requires that an expert's testimony involve matters beyond the understanding of the average lay person. Frazier, 387 F.3d at 1262. The opinion must also have a “valid scientific connection to the disputed facts in the case.” Daubert, 509 U.S. at 591. The party offering the expert bears the burden of establishing reliability and helpfulness. Frazier, 387 F.3d at 1260. The expert may be qualified and the basis for his opinion may be reliable, but if his opinion is not necessary for resolving the issues in the case, then the opinion is not relevant and should not be admitted. See Id. The Eleventh Circuit has stated that this prong “goes primarily to relevance.” Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 987 (11th Cir. 2016) (citing Daubert, 509 U.S., at 591). The basic standard of relevance . . . is a liberal one, but if an expert opinion does not have a valid scientific connection to the pertinent inquiry it should be excluded because there is no fit. Id. Stated another way, expert testimony is considered relevant when “it logically advances a material aspect of the proposing party's case.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (quotations and citation omitted).


         A. Defendant's Motion to Strike/Daubert Motion Regarding Plaintiff's Expert Terry MacLaughlin

         In its Motion, Defendant requests that the Court strike Plaintiff's expert, Terry MacLaughlin, and exclude his opinions at trial pursuant to Daubert, Federal Rule of Evidence 702, Federal Rule of Civil Procedure 26, and Federal Rule of Civil Procedure 37(c).[3]

         First, Defendant contends that MacLaughlin's opinions should be stricken pursuant to the Supreme Court's ruling in Daubert v. Merrell Dow Pharms., Inc., 509, U.S. 579, (1993) because, according to Defendant, MacLaughlin offers opinions regarding the cause of other skaters falling which requires an analysis of human factors/biomechanics that MacLaughlin is unqualified to give, ECF No. [127] at 3. Defendant next challenges the methodology utilized by MacLaughlin as unreliable regarding MacLaughlin's opinions related to: 1) the condition of the skates; 2) the instructions provided to the Plaintiff; 3) the condition of the ice; 4) the presence of a “skate guard”; and, 5) the cause of other skaters falling, ECF No. [127] at 4-16. Defendant further contends that MacLaughlin's opinions are irrelevant to the facts of this case and are unhelpful to the trier of fact, and thus should be stricken, ECF No. [127] at 16-17. Finally, Defendant argues that some of MacLaughlin's opinions are untimely and therefore should be stricken.

         In Response, the Plaintiff contends that that MacLaughlin has extensive experience in ice rink management, design, operation and safety, and is thereby qualified to make an observation of another skater's skate catching the ice and falling in the same area where the Plaintiff fell. Plaintiff contends that such an observation supports MacLaughlin's opinions about the defective condition of the ice. Plaintiff argues that if the Court determines that MacLaughlin is unqualified to render an opinion about another skater's fall, that the Defendant's expert, David Wescott, is also unqualified to offer his rebuttal opinion that the Plaintiff would have fallen forward rather than backwards if he encountered a groove in the ice, ECF No. [160] at 6.

         Plaintiff further contends that MacLaughlin explained the methodology that he employed in arriving at his other opinions, which included speaking to Plaintiff Lebron about the defective conditions of the ice and skates, and inspecting the ship for deficiencies in the ice and determining whether those conditions failed to meet industry standards. According to Plaintiff, MacLaughlin then determined whether those deficiencies were causative factors in Lebron's fall. Plaintiff further suggests that even if MacLaughlin's opinions about the cause of the Plaintiff's fall are not reliable, those opinions are severable from MacLaughlin's opinions regarding Defendant's failures to meet applicable industry standards. Plaintiff thus suggests that if the Court determines that MacLaughlin's causation opinions should be excluded, MacLaughlin's other opinions should still be admitted.

         Plaintiff further asserts that MacLaughlin's specific opinions on the various subjects challenged by the Defendant are reliable and thus admissible because, although MacLaughlin did not inspect the ice rink at the time of the Plaintiff's fall, Defendant represented to him that when he did inspect the ice rink, it was in the same condition as when the Plaintiff's accident occurred. Plaintiff also argues that MacLaughlin has inspected over a hundred ice rinks in his career and thus he is capable of rendering opinions on the presence of debris and defects in the ice, as well as, the temperature of the ice as falling below ice rink industry standards. Plaintiff further asserts that although on direct examination by Defendant's Counsel MacLaughlin was not able to state whether Defendant's maintenance of the rink fell below recognized industry standards, on cross-examination, MacLaughlin clarified that there were industry standards or industry best practices that he relied on in arriving at his opinions. Plaintiff further contends that, to the extent that Defendant challenges the credibility of MacLaughlin's opinions, those challenges go to the weight rather than the admissibility of those opinions.

         1. Expert MacLaughlin's Qualifications

         Plaintiff's expert Terry MacLaughlin is the president of MacLaughlin Management & Design, (“MMD”), an ice skating and sports facility consulting company founded in 1993, that provides consulting services to assist in the design, construction management and renovation of ice rinks, ECF No. [127-1] at 8. The company bills itself as a firm that consults with owners to insure that their facilities are managed and operated effectively in order to provide skaters with a safe environment and a high quality skating experience. The company states that its services include safety engineering, staffing, training ice rink personnel in ice making and ice maintenance, and developing realistic operational budgets with ice schedules. The company has consulted on several municipal ice skating rink projects in Massachusetts. Prior to becoming the President of MMD, MacLaughlin graduated from Colgate University and served for 7 years as the Vice President of Ice Pro, an ice rink construction company, and 6 years as President of U.S. Arena Supply, an ice rink design and material supplier, ECF No. [127-1] at 10. In addition, at his deposition, MacLaughlin estimated that he has conducted between sixty and eighty inspections of ice arenas throughout the course of his career, ECF No. [127-5] at 158. MacLaughlin also testified that he has been employed by various insurance carriers at various time to inspect ice arenas for renewal policies to ensure that the arenas are well managed, there are safety procedures in place, and the operation of the equipment is proper, ECF No. [127-5] at 158. MacLaughlin testified that he is often engaged to evaluate existing ice rink conditions, including the conditions of the ice floor, ECF No. [127-5] at 158.

         The Eleventh Circuit has made clear, “While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status.” Frazier, 387 F.3d at 1260. Rule 702 provides that an expert's opinion may be based on their knowledge, skill, experience, training, or education. Fed.R.Evid. 702. Indeed, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. The 2000 Advisory Committee Notes to Rule 702, provide,

Nothing in this amendment is intended to suggest that experience alone--or experience in conjunction with other knowledge, skill, training or education--may not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony. See, e.g., United States v. Jones, 107 F.3d 1147 (6th Cir. 1997) (no abuse of discretion in admitting the testimony of a handwriting examiner who had years of practical experience and extensive training, and who explained his methodology in detail); Tassin v. Sears Roebuck, 946 F.Supp. 1241, 1248 (M.D.La. 1996) (design engineer's testimony can be admissible when the expert's opinions “are based on facts, a reasonable investigation, and traditional technical/mechanical expertise, and he provides a reasonable link between the information and procedures he uses and the conclusions he reaches”). See also Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1178 (1999) (stating that “no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.”).

Fed. R. Evid. 702, Advisory Committee Notes (2000). Thus, pursuant to Rule 702, MacLaughlin is clearly qualified to render opinions about the maintenance of ice skating rinks, particularly as to those items which involve the skater's experience on the ice, i.e., requisite skating equipment, temperature of the ice rink, obstruction-free maintenance of the ice, etc.

         Although the Defendant does not challenge MacLaughlin's general qualifications, Defendant contends that MacLaughlin should not be allowed to offer opinions about the cause of the fall of other ice skaters. Specifically, the Defendant argues that because MacLaughlin is not a human factors or biomechanics expert that he should not be allowed to opine about the cause of the fall of another skater in the area near where Lebron fell that was captured on CCTV. The Defendant contends that MacLaughlin testified that he is unable to state what caused the other person on the CCTV video to fall and cannot confirm that the skater caught his skate on something prior to his fall.

         In his September 25, 2017 Amended Supplement to Expert Witness Affidavit, MacLaughlin states that he reviewed the CCTV video and noticed an individual who skated over to Lebron after Lebron's fall and the individual caught the edge of his skate on the ice, which further supports MacLaughlin's belief that, more likely than not, there were hazardous ice conditions in the area of Lebron's fall, ECF No. [127-3] at 3. At his deposition, MacLaughlin testified that he considered himself to be a good judge of how people are skating and what causes people to fall, and stated the following when asked about the cause of the unidentified skater's fall,

It's my observation that he caught an edge on something and almost fell. It wasn't -I didn't-it was my interpretation that he didn't lose his balance, that he actually caught an edge- an edge of his skate and stopped awkwardly as a result of that. That's what I observed, and that's why I put it in my report.

ECF No. [127-5] at 147. Given this testimony and MacLaughlin's qualifications and experience, the undersigned concludes that the Defendant has the better of this argument. It is undisputed that MacLaughlin is not a human factors or biomechanics expert, and there is no evidence that MacLaughlin has any additional experience that would give him expertise in this area.[4] Thus, without more information, he is unable to provide an expert opinion as to the cause of the fall solely based upon the body movement of the unidentified skater. Moreover, the jury will be able to view the other skater's fall and make the same observations as MacLaughlin.

         It is for this reason that MacLaughlin's opinion regarding the unknown skater differs from the opinion MacLaughlin offers regarding Lebron's fall. MacLaughlin's opinion regarding the cause of Lebron's fall was based, in part, upon Lebron's testimony and MacLaughlin's meeting with Lebron and his family regarding the details of his fall, including Lebron's level of experience as an ice skater, the condition of his skates, the condition of the ice, and Lebron's personal observations just prior to his fall, ECF No. [117-8]. On this point, it is worth noting that in his rebuttal report the Defendant's expert, David Wescott, only opined that without knowing the skating experience of the unknown skater, it would be hard to conclude that the ice caused the skater to stumble, ECF No. [128-7] at 11-12. Further, there is no methodology provided by MacLaughlin regarding how he was able to determine what caused the skater on the CCTV video to fall.

         Thus, the undersigned concludes that MacLaughlin is not qualified to render an opinion on the causation of the skater's fall. Accordingly, MacLaughlin's opinion on the cause of the fall of the unknown skater shown on the CCTV video is excluded.[5]MacLaughlin is however qualified to render the other opinions he has offered in this action.

         2. Expert MacLaughlin's Methodology

         Defendant next challenges the methodology employed by MacLaughlin as to the opinions he offered regarding the conditions of the ice rink, the ice skating equipment and safety instructions related to that equipment, and the cause of Lebron's fall. Defendant argues that MacLaughlin's opinions are not grounded in any facts regarding the actual circumstances of the Plaintiff's accident and further ...

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