Stewart-Patterson v. Celebrity Cruises, Inc.

Filing 67

ORDER granting 39 Defendant's Motion for Partial Summary Judgment; denying 40 Defendant's Motion to Exclude Expert Testimony; granting in part and denying in part 41 Defendant's Motion to Exclude Expert Testimony. Please see Order for details. Signed by Judge James I. Cohn on 11/19/2012. (sry)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-20902-CIV-COHN/SELTZER
ELIZABETH STEWART-PATTERSON,
Plaintiff,
v.
CELEBRITY CRUISES, INC.,
Defendant.
_________________________________/
ORDER ON DEFENDANT’S MOTIONS FOR PARTIAL SUMMARY JUDGMENT
AND TO EXCLUDE EXPERT TESTIMONY
THIS CAUSE is before the Court upon Defendant’s Motion for Summary
Judgment as to Count I of Amended Complaint [DE 39], Defendant’s Motion to Strike
Incompetent/Unreliable Opinions of David Alexander, M.D. [DE 40], and Defendant’s
Motion to Strike Incompetent/Unreliable Opinions of James Losito, M.D. [DE 41].
The Court has carefully reviewed Defendant’s Motions, all related filings, and the record
in this case, and the Court is otherwise fully advised in the premises.
I.

Background
A.

Material Facts1

On March 25, 2011, Plaintiff Elizabeth Stewart-Patterson (“Plaintiff”) was a
passenger aboard a cruise ship owned and operated by Defendant Celebrity Cruises,

1

Plaintiff’s response to Defendant’s summary-judgment motion does not include
the statement of material facts required by Local Rule 56.1(a). Consequently, all
material facts recited by Defendant and supported by evidence of record are deemed
admitted. See S.D. Fla. L.R. 56.1(b). Nevertheless, the Court views the facts in the
light most favorable to Plaintiff, the non-moving party. See Davis v. Williams, 451 F.3d
759, 763 (11th Cir. 2006).

Inc. (“Defendant”). See DE 39 at 2, ¶¶ 1-2. Plaintiff claims that as she was walking
down a carpeted staircase on the ship that afternoon, she slipped on a wet substance
and fell down the stairs, fracturing her left ankle. See id. at 3-4, ¶¶ 3, 5; DE 1 at 2-3,
¶ 9. At her deposition, Plaintiff testified that she did not know what type of liquid was on
the stairs or the source of the liquid. See DE 39-4 at 17. Plaintiff stated that the liquid
“seem[ed] like it had been there quite a long time” and that it was “greasy, soapy,
slippery.” Id. at 17-18. She also stated that there was “quite a bit” of liquid because
she felt it “splash up [her] legs and arms and [her] feet” when she fell. Id. at 17.
According to Plaintiff, no signs were posted warning of the wet steps. See id. at 18.
Shortly after her fall, Plaintiff visited the ship’s infirmary, where the onboard
physician performed x-rays and diagnosed Plaintiff with a fractured ankle. See DE 391; DE 39-4 at 19. The doctor placed a soft wrapping around Plaintiff’s lower leg and
prescribed her pain medication. See id. Plaintiff testified that while she was in the
infirmary,
there was an officer of the ship, and he had a navy blue, like
a dark blue officer suit with the braiding and everything, so
he was like an official that worked for the ship, and . . . he
came, he seemed very concerned that I had hurt myself.
And he was there, and then he left. And I don’t know how
long he was gone for while I was in the clinic, but when he
came back, he said, you know, “We’re so sorry.” Something
to — I can’t remember word for word, but something to the
effect that “We had opinion cleaning in that area, and we’re
very sorry. If there is something we can do,” that sort of
thing.
DE 39-4 at 18.
In addition to treating Plaintiff’s ankle injury, the onboard physician referred her
to an orthopedist in Cartagena, Colombia, apparently a port of call for the ship. See DE
39-1; DE 39-4 at 20. More, Plaintiff alleges that Defendant required her to undergo an
2

orthopedic consultation with the Colombian doctor or to sign a form releasing
Defendant from liability. See DE 39-4 at 21. According to Plaintiff, the onboard doctor
assured her that the Colombian orthopedist was highly qualified. See id. at 20.
Although Plaintiff ultimately agreed to see the orthopedist, she contends that the
Colombian doctor failed to properly treat her ankle fracture, thereby aggravating her
injury. See id. at 21-23, 31. Plaintiff claims that as a result of her fall and the
inadequate medical care in Colombia, she later had to undergo two surgeries on her
ankle. See DE 1 at 3, ¶ 14; DE 50 at 2, ¶ 2.
B.

Procedural History

On March 5, 2012, Plaintiff filed this personal-injury action against Defendant.
See DE 1. Plaintiff’s Complaint alleged three counts. First, Plaintiff pleaded a
negligence claim asserting that Defendant failed to maintain the ship’s staircase in a
safe manner and to warn passengers of its slippery condition. See id. at 3-4. Second,
Plaintiff asserted a claim for negligent mode of operation, alleging that Defendant failed
to reduce or eliminate the dangerous condition before it occurred. See id. at 5-6. Third,
Plaintiff pleaded a claim for medical negligence, contending that Defendant did not use
reasonable care in selecting, and requiring Plaintiff to be treated by, the doctor in
Colombia. See id. at 6-7. Plaintiff’s Complaint sought compensatory damages for
physical and mental injuries, including ongoing medical expenses. See id. at 5-7.
In response to Plaintiff’s Complaint, Defendant moved to dismiss the negligentmode-of-operation and medical-negligence claims for failure to state a claim upon
which relief can be granted. See DE 9; Fed. R. Civ. P. 12(b)(6). The Court dismissed
Plaintiff’s claim for negligent mode of operation, holding that federal admiralty law does

3

not recognize such a claim. See DE 20 at 4-6. But the Court declined to dismiss the
medical-negligence claim, finding that Plaintiff had “adequately pleaded that Defendant
failed to exercise reasonable care in choosing the Colombian doctor and thus is liable
for any injuries resulting from that decision.” Id. at 7. The Court therefore allowed
Plaintiff to proceed on her negligence and medical-negligence claims. See id.
Defendant subsequently filed an Answer to the remaining claims in Plaintiff’s
Complaint, denying liability and asserting several affirmative defenses. See DE 21.
On October 3, 2012, Defendant filed its present motion seeking summary
judgment on Plaintiff’s negligence claim. See DE 39. Defendant argues that it cannot
be held liable for Plaintiff’s slip-and-fall accident because Plaintiff has not shown that
Defendant had actual or constructive knowledge of a slippery liquid on the ship’s stairs.
Further, on October 5, 2012, Defendant filed two motions to exclude expert testimony
by Drs. David Alexander and James Losito, physicians who treated or examined
Plaintiff after her injury. See DE 40, 41. Defendant maintains that both doctors’
opinions are unreliable and thus inadmissible under the standards for expert testimony.
All three of Defendant’s motions are now fully briefed and ripe for decision.
II.

Discussion
A.

Motion for Partial Summary Judgment
1.

Summary Judgment Standard

The Court may grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The moving party “always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying

4

those portions of [the record] which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy
this burden, the movant must point out to the Court that “there is an absence of
evidence to support the nonmoving party’s case.” Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production
shifts, and the non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). As Rule 56 explains, “[i]f a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact . . . the court may . . . grant summary judgment if the motion and
supporting materials—including the facts considered undisputed—show that the movant
is entitled to it.” Fed. R. Civ. P. 56(e)(3). Therefore, the non-moving party “may not rest
upon the mere allegations or denials in its pleadings” but instead must present “specific
facts showing that there is a genuine issue for trial.” Walker v. Darby, 911 F.2d 1573,
1576-77 (11th Cir. 1990).
Essentially, so long as the non-moving party has had an ample opportunity to
conduct discovery, it must come forward with affirmative evidence to support its claim.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). “A mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be enough
of a showing that the jury could reasonably find for that party.” Walker, 911 F.2d at
1577. If the evidence advanced by the non-moving party “is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249-50 (citations omitted).

5

The Court’s function at the summary-judgment stage is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. In making this determination, the Court must discern
which issues are material: “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
Moreover, in deciding a summary-judgment motion, the Court must view the facts in the
light most favorable to the non-moving party and draw all reasonable inferences in that
party’s favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
2.

Analysis of Defendant’s Motion

Because Defendant’s alleged negligence occurred aboard a ship on navigable
waters, federal admiralty law, not state law, governs Plaintiff’s claims. See Kermarec v.
Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959). This is true even
though Plaintiff has alleged diversity of citizenship as the basis for federal jurisdiction
here. See id. at 627-28; see also Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d
1332, 1334 (11th Cir. 1984) (“Plaintiffs alleged diversity of citizenship as the
jurisdictional basis of this suit. Since the complained of injury occurred upon a ship in
navigable waters, admiralty jurisdiction is also present and maritime law governs the
outcome of the suit.” (citing Kermarec, 358 U.S. at 628)). Still, “when neither statutory
nor judicially created maritime principles provide an answer to a specific legal question,
courts may apply state law provided that the application of state law does not frustrate
national interests in having uniformity in admiralty law.” Coastal Fuels Mktg., Inc. v. Fla.
Express Shipping Co., 207 F.3d 1247, 1251 (11th Cir. 2000) (per curiam).

6

Under federal admiralty law, a shipowner owes to all persons properly aboard the
ship “the duty of exercising reasonable care under the circumstances of each case.”
Kermarec, 358 U.S. at 632. When a passenger alleges that she was injured by a
dangerous condition on the ship, this standard of care “requires, as a prerequisite to
imposing liability, that the carrier have had actual or constructive notice of the riskcreating condition . . . .” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th
Cir. 1989) (per curiam). In Keefe, another case brought by a cruise-ship passenger
who slipped and fell on a wet floor, the Eleventh Circuit explained that the shipowner’s
liability “hinge[d] on whether it knew or should have known about the treacherous wet
spot.” Id. Because the district court had “made no express finding as to how long the
particular unsafe condition at issue here existed prior to [plaintiff’s] mishap,” id., the
court of appeals vacated a judgment in favor of the passenger and remanded for
additional fact-finding concerning the shipowner’s knowledge of the slippery condition.
See id. at 1323, 1326.
Here, therefore, to establish that Defendant acted negligently regarding the
alleged slippery condition on the ship’s staircase, Plaintiff must first show that
Defendant had actual or constructive knowledge of that condition at the time of
Plaintiff’s accident. Defendant maintains that Plaintiff cannot meet this burden because
she has offered no competent evidence about what type of liquid was on the stairs,
where the liquid came from, or how long it had been there before she slipped on it.
To prove Defendant’s knowledge of the slippery condition, Plaintiff relies heavily
on video footage of the slip-and-fall incident, taken by one of the ship’s surveillance
cameras. See DE 52. This one-minute video shows a crew member vacuuming a
carpeted landing at the top of three adjacent staircases just before Plaintiff fell down
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one of the outer staircases. Plaintiff asserts that the crew member was also
shampooing the carpet in that area, as demonstrated by a yellow warning sign one side
of the landing (the side opposite the staircase where Plaintiff fell). Plaintiff further
contends that “a light colored substance is visible on the [landing] carpet” and that the
middle stairs “are unevenly colored and appear to be very wet.” DE 50 at 2-3.
The record evidence, however, does not support Plaintiff’s interpretation of the
video footage. First, Defendant has submitted a rebuttal affidavit from Faniel Deliscar,
the crew member who was vacuuming the landing when Plaintiff fell. See DE 55-1 at 1.
Deliscar explains that he was not shampooing the carpet in that area, nor had he
placed any cleaning substance on the landing or stairs, but was instead “performing
routine vacuuming.” Id. Deliscar further states that he placed the yellow sign on the
landing not because the carpet was wet but “to warn passengers of the electric cord for
the vacuum I was using at the time.” Id. Plaintiff offers no evidence to refute this
testimony.2 Moreover, based on the Court’s review of the video footage, no wet areas
or foreign substances are visible on any part of the carpet. While the Court recognizes
that the video’s resolution is limited, the discolorations noted by Plaintiff appear to be
patterns in the carpet, distortions in the video recording, or both.3
Nor has Plaintiff offered any other substantial evidence showing that Defendant
knew or should have known of a wet substance on the staircase. Plaintiff testified that

2

Although Plaintiff requested to depose Deliscar, the record indicates that the
parties were not able to schedule his deposition before the discovery cutoff. See DE
55-1 at 2-9.
3

Plaintiff argues that Deliscar was looking at the wet area of the stairs before
Plaintiff fell but did nothing to warn her of the slippery condition. The video footage
shows, however, that Deliscar looked in Plaintiff’s direction on the staircase only after
she fell.
8

while she was in the ship’s infirmary, an unidentified officer of the ship expressed regret
for Plaintiff’s accident and stated that there had been “opinion cleaning in that area.”
DE 39-4 at 18. But Plaintiff has provided no other information about the identity of this
officer or his specific role with Defendant, and there is no indication that Plaintiff sought
discovery concerning the officer. Therefore, Plaintiff has not shown that the officer’s
alleged statements—which are otherwise hearsay—would be admissible at trial.
See, e.g., Fed. R. Evid. 801(d)(2)(C), (D) (providing that a statement is not hearsay if it
is offered against an opposing party and was made by either “a person whom the party
authorized to make a statement on the subject” or “the party’s agent or employee on a
matter within the scope of that relationship”). Further, Plaintiff could remember the
officer’s statements only in general terms, calling into question the reliability of this
evidence. And even if the officer’s statements were admissible, they are not
significantly probative of whether Defendant knew or should have known of a slippery
condition on the stairs. The officer’s reference to “opinion cleaning” in the area of
Plaintiff’s accident does not indicate what type of cleaning was being performed,
whether the cleaning included the particular staircase where Plaintiff fell, or how long
before the accident the cleaning occurred.
Plaintiff also points to her deposition testimony that the liquid on the steps
“seem[ed] like it had been there quite a long time.” DE 39-4 at 17. Plaintiff, though,
does not explain the basis for this conclusion. To the contrary, her testimony that she
felt the liquid “splash up [her] legs and arms and [her] feet” suggests that the substance
had not been there long enough to be fully absorbed into the carpet or dry naturally. Id.
Also, this is not a case where Defendant’s knowledge of the slippery condition
can be inferred from the nature of the substance and its location. Cf. Castellanos v.
9

Target Corp., No. 10-62456-CIV, 2011 WL 5178334, at *4-*5 (S.D. Fla. Oct. 14, 2011)
(finding a disputed issue of fact on retailer’s constructive knowledge of spilled bleach
because there were track marks in the bleach puddle and store employees nearby who
could have seen the spill). The presence of an apparently invisible liquid on a carpeted
stairwell of a cruise ship—one of three staircases on a single landing alone—does not
inherently show that Defendant should have known of the slippery condition. Indeed, it
appears that Plaintiff herself did not see the liquid before she slipped on it, and no wet
substance is visible on the surveillance video. And though Plaintiff described the liquid
as “greasy, soapy, slippery,” DE 39-4 at 17-18, there is no proof of what the substance
was or how it got on the steps. Last, no evidence indicates that Defendant’s employees
frequently travel the staircase where Plaintiff fell, and the video footage suggests that
the area is not particularly busy.
For all these reasons, the Court finds that Plaintiff has not demonstrated a
genuine dispute of material fact about whether Defendant had actual or constructive
knowledge of the alleged slippery condition on the staircase. See Keefe, 867 F.2d at
1322. Defendant’s motion for summary judgment on Plaintiff’s negligence claim is
therefore granted.
B.

Motions to Exclude Expert Testimony
1.

Standards for Expert Testimony

Federal Rule of Evidence 702 governs the admission of expert testimony.
See Fed. R. Evid. 702; see Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir.
2005). To determine if expert testimony is admissible under Rule 702, district 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
10

conclusions is sufficiently reliable . . . ; 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.” Rosenfeld v. Oceania Cruises, Inc.,
654 F.3d 1190, 1193 (11th Cir. 2011) (internal quotation marks omitted). “The party
offering the expert has the burden of satisfying each of these three elements by a
preponderance of the evidence.” Rink, 400 F.3d at 1292.
In assessing the reliability of an expert’s methodology, courts may consider the
following factors regarding the expert’s theory or technique: (1) whether it can be (and
has been) tested; (2) whether it has been subjected to peer review and publication;
(3) its known or potential rate of error; and (4) whether it is generally accepted in the
relevant field. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-50 (1999) (citing
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-94 (1993)). This “test of
reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor
exclusively applies to all experts or in every case.” Id. at 141. Indeed, “[d]istrict courts
have substantial discretion in deciding how to test an expert’s reliability.” Rink, 400
F.3d at 1292 (internal quotation marks omitted).
In applying these standards, “district courts must act as ‘gatekeepers’ which
admit expert testimony only if it is both reliable and relevant. ” Id. at 1291 (citing
Daubert, 509 U.S. at 589). Yet “it is not the role of the district court to make ultimate
conclusions as to the persuasiveness of the proffered evidence.” Quiet Tech. DC-8,
Inc. v. Huerl-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). “Quite the contrary,
‘[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.’” Id. (quoting Daubert, 509 U.S. at 596 (alteration in original)).
11

2.

Dr. David Alexander

Defendant moves to exclude certain expert testimony by Dr. David Alexander,
the orthopedic surgeon who performed two operations on Plaintiff’s ankle following her
injury aboard the cruise ship. Defendant argues that two of Dr. Alexander’s opinions
concerning Plaintiff’s medical-negligence claim are unreliable: (1) that Dr. Ramon
Hernandez, the physician who treated Plaintiff in Colombia, failed to meet the
appropriate standard of care because he did not perform a closed reduction of
Plaintiff’s ankle fracture;4 and (2) that if Dr. Hernandez had properly treated Plaintiff’s
fracture, she likely could have avoided surgery. Defendant claims that these opinions
are speculative because they are “premised solely on information received from
Plaintiff, a lay person with no medical training.” DE 40 at 2 (emphasis omitted).
The Court finds this argument meritless.
Federal Rule of Evidence 703 permits an expert to base his opinions on “facts or
data in the case that the expert has been made aware of or personally observed.” Fed.
R. Evid. 703. Even if the facts or data underlying the expert’s opinion would be
inadmissible, the opinion itself may be admitted “[i]f experts in the particular field would
reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Id.
The advisory committee notes to Rule 703 specifically explain that a physician may rely
on wide range of sources in forming medical opinions, including facts that the doctor
learns “other than by his own perception”:
[A] physician in his own practice bases his diagnosis on
information from numerous sources and of considerable
4

According to Dr. Alexander, a closed reduction involves manipulating the
fractured extremity and thereby “chang[ing] the position of the fracture to an acceptable
position.” DE 53-1 at 9.
12

variety, including statements by patients and relatives,
reports and opinions from nurses, technicians and other
doctors, hospital records, and X rays. Most of them are
admissible in evidence, but only with the expenditure of
substantial time in producing and examining various
authenticating witnesses. The physician makes life-anddeath decisions in reliance upon them. His validation,
expertly performed and subject to cross-examination, ought
to suffice for judicial purposes.
Fed. R. Evid. 703 advisory committee notes (1972) (citations omitted).
Here, Dr. Alexander relied on multiple sources in forming his opinions about
Dr. Hernandez’s treatment of Plaintiff’s injury. First, Dr. Alexander considered
information that his patient, Plaintiff, provided about the earlier treatment. Although
Defendant argues that this was improper because Plaintiff lacked medical training,
physicians commonly base their medical opinions on statements from patients. See id.
In addition, Dr. Alexander examined Plaintiff’s injured ankle, reviewed several x-rays of
the ankle (taken at various times), and performed two surgeries on the ankle. Based on
all this information, Dr. Alexander concluded that Dr. Hernandez had failed to perform a
closed reduction of Plaintiff’s fracture and that if he had done so, Plaintiff could have
avoided surgery. See McGuire v. Davis, 437 F.2d 570, 572 (5th Cir. 1971) (applying
the “well-settled proposition that a physician who has examined an injured party may
describe what he has seen and give his expert inferences therefrom”).5 While
Defendant is free to challenge Dr. Alexander’s opinions by cross-examining him or by
offering competing expert testimony, nothing suggests that the process by which
Dr. Alexander formed his opinions is unreliable. See id. at 572-73 (rejecting argument

5

Decisions of the former Fifth Circuit issued before October 1, 1981, are binding
precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
13

that physician’s testimony about cause of plaintiff’s leg injury was “hypothetical and
based upon hearsay and conclusions,” because doctor was a “qualified medical expert
with a firsthand knowledge of the material facts” and therefore “well within permissible
bounds in stating his opinion and inferences”). Accordingly, the Court denies
Defendant’s motion to exclude Dr. Alexander’s testimony.6
3.

Dr. James Losito

Defendant also seeks to exclude certain expert testimony by Dr. James Losito, a
podiatrist who examined Plaintiff and reviewed her x-rays and other medical records for
purposes of this case. Defendant contends that several of Dr. Losito’s opinions
regarding Plaintiff’s medical-negligence claim lack a reliable basis:
(1)

that Dr. Hernandez failed to recommend that Plaintiff undergo
surgery on her fractured ankle;

(2)

that Dr. Hernandez failed to advise Plaintiff not to put weight on her
ankle;

(3)

that Dr. Hernandez did not attempt a closed reduction of Plaintiff’s
fracture;

(4)

that Dr. Hernandez did not diagnose a fracture of Plaintiff’s ankle;
and

(5)

that Plaintiff will likely require future rehabilitation, bracing, and
medication and that she may need additional surgery.

See DE 41. With one exception discussed below, the Court finds that these opinions
are based on sufficiently reliable sources and thus are admissible.

6

Because the challenged opinions are admissible as expert testimony, the
Court need not decide whether they would be admissible as lay testimony based on
Dr. Alexander’s treatment of Plaintiff. See Williams v. Mast Biosurgery USA, Inc., 644
F.3d 1312, 1316-18 (11th Cir. 2011) (addressing differences between lay testimony and
expert testimony by treating physicians).
14

Regarding Dr. Hernandez’s alleged failure to recommend surgery, Defendant
emphasizes Dr. Losito’s admissions during deposition that Plaintiff underwent surgery
within two weeks after her injury, the time frame that Dr. Losito considered appropriate.
Defendant therefore argues that Dr. Losito’s testimony fails to show that
Dr. Hernandez’s lack of advice about surgery caused Plaintiff any additional injury.
But even accepting that Dr. Losito’s testimony does not establish damages resulting
from the failure to recommend surgery, his testimony is still relevant to whether
Dr. Hernandez met the appropriate standards of care in Plaintiff’s treatment. This issue
bears directly on Defendant’s liability for “negligently hir[ing] an incompetent doctor.”
Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1371 (5th Cir. 1988).
As to whether Dr. Hernandez (1) advised Plaintiff not to put weight on her ankle
and (2) attempted a closed reduction of her fracture, Defendant argues that Dr. Losito
impermissibly relied on Plaintiff’s statements to him about the treatment she received
from Dr. Hernandez. Again, however, the Court rejects this argument because doctors
normally consider patients’ statements in forming medical opinions. See Fed. R. Evid.
703 advisory committee notes; supra Part II.B.2. More, Dr. Losito noted that
Dr. Hernandez’s treatment records failed to reflect either that he advised Plaintiff not to
put weight on her injured ankle or that he performed a closed reduction of the fracture.
To the extent that Defendant seeks to challenge these bases for Dr. Losito’s opinions, it
may do so though cross-examination or other means at trial.
With respect to Dr. Losito’s opinion that Dr. Hernandez did not diagnose a
fracture of Plaintiff’s ankle, Dr. Losito conceded during his deposition that the medical
records showed that Dr. Hernandez did, in fact, diagnose a fracture. See DE 54-3 at 2.
Dr. Losito therefore agreed that he would not testify about this issue at trial. See DE
15

54-2 at 16. Further, Plaintiff does not object to excluding Dr. Losito’s opinion about the
fracture diagnosis. See DE 54 at 3 n.1. Thus, the Court grants Defendant’s motion to
exclude that opinion.
Dr. Losito also opined that Plaintiff will likely require future rehabilitation, bracing,
and medication and that she may need additional surgery. Defendant points to
deposition testimony by Dr. Losito indicating that he was not certain about the exact
rehabilitation, bracing, and medications that Plaintiff would require or the specific costs
of those treatments. See DE 54-2 at 19-20. Also, Defendant notes that Dr. Losito
testified only that it was “possible” that Plaintiff would need further surgery. Id. at 20.
While the Court recognizes that Dr. Losito was less than certain about some aspects of
his testimony, he adequately explained, based on his medical training and experience,
that Plaintiff would likely require certain types of rehabilitation, bracing, and
medications. And though Dr. Losito’s testimony about Plaintiff’s “possible” need for
surgery presents a closer question, the Court finds that the jury should be allowed to
hear this testimony, especially since defense counsel did not explore this topic in detail
during Dr. Losito’s deposition. Once again, Defendant may challenge any of
Dr. Losito’s opinions at trial, and the jury will decide what weight his testimony should
be given.7 Therefore, except for the opinion regarding Dr. Hernandez’s diagnosis of
7

Defendant cites cases holding that a medical expert must state his opinions to
a “reasonable degree of certainty” or a “reasonable degree of probability.” See DE 41
at 14-18. The cited decisions, though, are based on state-law standards not applicable
to this federal admiralty action. Here, the admission of Dr. Losito’s testimony is
governed by the Federal Rules of Evidence, as interpreted by Daubert and other cases.
While these authorities require exclusion of unreliable or speculative opinions, they do
not require that expert testimony be given with any degree of “certainty” or “probability.”
See Stutzman v. CRST, Inc., 997 F.2d 291, 296 (7th Cir. 1993); United States v.
Gomes, 2007 WL 708062, at *1 (N.D. Fla. Mar. 1, 2007). Rather, the party offering the
evidence must show that the expert is qualified to testify competently, that his methods
16

Plaintiff’s ankle fracture, the Court denies Defendant’s motion to exclude Dr. Losito’s
testimony.
III.

Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1.

Defendant’s Motion for Summary Judgment as to Count I of Amended Complaint
[DE 39] is GRANTED;

2.

Defendant’s Motion to Strike Incompetent/Unreliable Opinions of David
Alexander, M.D. [DE 40] is DENIED;

3.

Defendant’s Motion to Strike Incompetent/Unreliable Opinions of James Losito,
M.D. [DE 41] is GRANTED with respect to Dr. Losito’s opinion concerning the
failure to diagnose Plaintiff’s ankle fracture, but is otherwise DENIED;

4.

As this case will proceed on Count III of Plaintiff’s Complaint (Medical
Negligence), Calendar Call remains set for December 6, 2012, at 9:00 a.m.;

5.

Trial will begin during the two-week period commencing December 10, 2012, at
9:00 a.m., or as soon thereafter as the case may be called; and

6.

Consistent with the Court’s prior Orders, the following pretrial deadlines remain:
Motions in Limine

November 21, 2012

Responses to Motions in Limine,
Joint Pretrial Stipulation, and
Designation of Deposition
Excerpts for Trial

December 3, 2012

are sufficiently reliable, and that the expert testimony would assist the trier of fact.
See Rosenfeld, 654 F.3d at 1193. Once these requirements are met, the expert
testimony is admissible, and the jurors may weigh that evidence however they see fit.
See Stutzman, 997 F.2d at 296 (“Under the Federal Rules, certainty is an issue for the
jury and does not affect admissibility.”); Gomes, 2007 WL 708062, at *1 (“Even
assuming the expert in this case could not render an opinion to within a reasonable
degree of medical certainty, her testimony is still admissible . . . . Ascribing weight to
her testimony is the province of the jury.”).
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Proposed Jury Instructions and
Verdict Forms, Voir Dire Questions,
and Objections to Deposition
Designations and/or Cross-Designations

Calendar Call

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 19th day of November, 2012.

Copies provided to:
Counsel of record via CM/ECF

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