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McBride v. Carnival Corporation

United States District Court, S.D. Florida, Miami Division

July 25, 2019




         THIS MATTER comes before the Court upon Defendant Carnival Corporation's ("Carnival") Daubert Objection to Plaintiffs Expert Frank Fore (D.E. 76); Plaintiffs Daubert Objection to Defendant's Expert Zdenek Hejzlar (D.E. 82); and Carnival's Motion to Strike or Limit Testimony of Plaintiff s Expert Dr. Thomas Roush (D.E. 77), all timely filed by the July 8, 2019 motions deadline.[1]

         I. BACKGROUND

         This personal injury case arises from Plaintiffs fall from her wheelchair on November 23, 2015, while disembarking Carnival's vessel at a ramp within a gangway leading into the terminal building at the Port of Miami.

         Plaintiff proffers Frank Fore to testify as an expert on Carnival's liability for Plaintiffs fall. Mr. Fore is a mechanical engineer who has been a "forensic accident investigator" since 1985 (D.E. 67-2, at 4). On May 6, 2019, Mr. Fore "inspected, measured, and photographed the scene of the incident" (id. at 9), reviewed materials from the case, safety regulations and standards, [2] and various scientific and technical literature on biomechanics (id. at 5). Mr. Fore dedicates 15 pages of his expert report to "biometric analysis" of Plaintiff Ms. McBride, including "torso acceleration analysis" and "back shear force analysis" (see Id. at 20-35). He then lists eleven opinions, including (a) that "[t]he abrupt vertical change in pathway elevation and the steeply sloped Ramps represent known safety hazards ... out of compliance with . . . safety regulations" and "was a substantial contributing cause of the mishap;" (b) that Fritz Charles's (an employee of Carnival's independent contractor) rapid pushing of the wheelchair was "a decisive component of the ejection as shown by . . . ejection calculations;" (c) that there were "[Reasonable cost-effective solutions that Carnival could have performed to remedy" the hazardous condition; (d) that it "was and is technically feasible to have the subject Ramp flush with the adjoining walkway surfaces on both sides of the ramp, as is done in countless jetway passenger boarding bridges;" and (e) that the safety regulations and standards he relied on (see supra n.2) are widely followed "in public venues, including maritime" (id. at 18-19).

         Moreover, Carnival proffers Zdenek Hejzlar to testify as an expert regarding its liability for Plaintiffs fall. Mr. Hejzlar has "over 28 years of experience in premises/occupational safety" and "is involved in .. . risk mitigation consulting with major cruise lines and resorts" (D.E. 66-3, at 17). He inspected the gangway ramp that was the site of the accident "when the Carnival Ecstasy came to the Port of Miami on July 26, 2018" (id. at 4), and took numerous photographs and measurements (see Id. at 35-37). Mr. Hejzlar lists nine opinions, including (a) that "the passenger bridge, including transition ramps, compl[ies] with applicable industry standards;" (b) that "[Plaintiffs] fall was not caused by the design, installation or use of the passenger bridge or the transition ramp;" (c) that the "design, material and weight [of the ramp in question] do[es] not create a gap as described by [Plaintiff];" and (d) that neither Carnival nor its contractor had "notice or reason to believe that anything about the design, construction or use of the passenger bridge was unreasonable or dangerous" (id. at 15).

         In addition, Plaintiff proffers Dr. Thomas Roush, an orthopedic spinal surgeon who she first visited on November 1, 2017, to testify both as a fact witness regarding his care and as an expert witness regarding the extent of Plaintiff s injuries, the cause of her injuries, and the cost of future procedures she might need. Specifically, Dr. Roush's expert opinions contained in his March 1, 2019 "narrative report" are (a) that Plaintiff sustained a "33% permanent partial impairment of the whole person" according to the AMA Guidelines Evaluation of Permanent Impairment Sixth Edition, based on 21% impairment for lumbar spine, 8% for "SI joint," 3% for right shoulder, 2% for hips, and 3% for knees; (b) "that the injury sustained to [Plaintiffs] back, SI joint, hips, knees and shoulders are [a] direct result of the injury sustained on the incident on 11/23/2015" based on comparing MRIs taken of Plaintiff in 2009 and 2017 and reviewing her prior medical history; and (c) that Plaintiff is estimated to incur additional future costs for follow-up imaging and therapies and "may require invasive procedures to help control her chronic pain" with estimated costs of "$55, 000 for the right shoulder, $50, 000 for the right hip, $65, 000 for the right and left knee and $150, 000 for the lumbar spine . . . based on hospital fees, physician fees, and anesthesia fees" (D.E. 77-1, at 6-8). Carnival moves to strike or limit Dr. Roush's testimony on the cause of Plaintiff s injuries, and some of the estimated future costs, including that she may need invasive procedures (D.E. 77, at 2-3).


         A. Legal Standard

         The admission of expert testimony is governed by Federal Rule of Evidence 702, which provides as follows:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         "The inquiry envisioned by Rule 702 ... is a flexible one.... The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594-95 (1993). The importance of Daubert's gatekeeping requirement cannot be overstated. See United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). As the Supreme Court framed it in Kumho Tire: "[T]he objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Frazier, 387 F.3d at 1260 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)). The district court's role is especially significant since the expert's opinion can be both powerful and quite misleading because of the difficulty in evaluating it. See Id. (internal quotations and citations omitted). Indeed, no other kind of witness is free to opine about a matter without any firsthand knowledge of the facts in the case, and based upon otherwise inadmissible hearsay if the facts or data are "of a type reasonably relied upon by experts in the particular field In forming opinions or inferences upon the subject." Id. (quoting Federal Rule of Evidence 703).

         Thus, in determining the admissibility of expert testimony under Rule 702, courts engage in a rigorous three-part inquiry. Id. Trial courts must consider whether:

(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 v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.1998) (citing Daubert, 509 U.S. at 589). Regarding reliability, a trial court may consider: "(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." Frazier, 387 F.3d at 1262 (internal citations omitted). The burden of ...

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