United States District Court, S.D. Florida, Miami Division
OMNIBUS ORDER ON DAUBERT MOTIONS
LAWRENCE KING UNITED STATES DISTRICT JUDGE
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.
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.
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,
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).
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).
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).
admission of expert testimony is governed by Federal Rule of
Evidence 702, which provides as follows:
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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).
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 ...