United States District Court, S.D. Florida
RANDALL NOON, as Personal Representative of the Estate of KAREN NOON, deceased, Plaintiff,
ARNIVAL CORPORATION, a Panamanian Corporation d/b/a CARNIVAL CRUISE LINES, Defendant.
ORDER ON DEFENDANT'S DAUBERT MOTION
G. TORRES United States Magistrate Judge
matter is before the Court on Carnival Corporation's
(“Defendant” or “Carnival”)
Daubert motion to exclude the testimony of Dr.
Robert Myerburg's (“Dr. Myerburg”) opinion as
to the life expectancy of Karen Noon (“Mrs.
Noon”). [D.E. 58]. Plaintiff responded on September 6,
2019 [D.E. 63] to which Defendant replied on September 13,
2019. [D.E. 64]. Therefore, Defendant's motion is now
ripe for disposition. After careful review of the motion,
response, reply, relevant authority, and for the reasons
discussed below, Defendant's Daubert motion is
filed this wrongful death action on behalf of his wife, Mrs.
Noon, on August 3, 2018 because of the negligence of
Defendant's medical and non-medical personnel. [D.E. 1].
Plaintiff alleges that, on July 7, 2017, Mrs. Noon started to
experience shortness of breath and respiratory distress. Mrs.
Noon was then taken to her stateroom in a wheelchair that
Carnival provided. Once Mrs. Noon returned to her stateroom,
her family members called the ship's medical center and
informed them that Mrs. Noon was having difficulty breathing.
The medical staff informed the family that an oxygen tank
could be provided at a cost of $300.00. The medical center
provided the tank but without an examination of Mrs. Noon,
either in the medical center or in her stateroom. Instead,
Mr. Noon picked up the oxygen tankand took it back to the
Noon used the oxygen tank during the remainder of the evening
of July 7, 2017 until the early morning of July 8, 2017. At
approximately 7:00 a.m. on July 8, 2017 (when the ship was
docked in Miami, Florida), the ship's medical center
staff contacted Mr. and Mrs. Noon in their stateroom and
informed them that they had to return the oxygen tank because
it was time to disembark the ship. Plaintiff alleges that,
shortly thereafter, two crewmembers came to the stateroom and
retrieved the oxygen tank without any examination of Mrs.
Noon or any notification to the ship's medical personnel
that a professional medical examination may be necessary.
the ship was docked in port, Mr. Noon and his family members
expressed a desire to keep the oxygen tank until they were
transported to a land-based hospital. Plaintiff alleges that
Carnival's non-medical crewmembers supervising the
disembarkation procedures refused to allow Mrs. Noon to keep
the oxygen tank or to provide a substitute tank. Mrs.
Noon's family then requested that Carnival's
crewmembers arrange for transportation to a land-based
hospital or medical facility. But, Plaintiff claims that
Carnival's crewmembers failed to contact any emergency
service providers. Plaintiff further alleges that crewmembers
refused to allow Mrs. Noon or her husband to contact any
emergency service providers on their own.
Mrs. Noon disembarked the ship - unaccompanied by any of
Carnival's crewmembers or any other medical personnel -
she went into respiratory arrest. Emergency responders
arrived and found Mrs. Noon unresponsive in cardiopulmonary
arrest with no respirations. The Miami-Dade Fire Rescue
Department transported Mrs. Noon to Jackson Memorial
Hospital, where she was pronounced dead on July 9, 2017.
Plaintiff's second amended complaint, Plaintiff asserts
four vicarious liability claims against Carnival: (1)
vicarious liability for negligence breach of a nonmedical
crewmember's duty to provide aid or assistance to a sick
or injured passenger, (2) negligent breach of an assumed or
undertaken duty to obtain medical care by nonmedical
crewmembers, (3) negligent breach of an assumed or undertaken
duty to obtain medical care by medical crewmembers with
actual authority, and (4) negligent breach of an assumed or
undertaken duty to obtain medical care by the medical crew
with apparent authority. Plaintiff limits the negligence
allegations against Defendant to the time period after the
ship reached port in Miami, Florida. Plaintiff also seeks
compensatory damages under the Florida Wrongful Death Act
(and alternatively under Michigan's wrongful death and
survival statutes), including punitive damages in each count.
APPLICABLE PRINCIPLES AND LAW
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. 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.”).
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)
facilitate this process, district courts engage in a
three-part inquiry to determine the admissibility of expert
(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 ...