Holderbaum v. Carnival Corporation
ORDER AND REPORT AND RECOMMENDATIONS re 64 Defendant's MOTION in Limine to Preclude Testimony of Frank Fore; and 63 Defendant's MOTION in Limine to Preclude Testimony of Dr. Lichtblau. Signed by Magistrate Judge Jonathan Goodman on 8/23/2015. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13‐24216‐CIV‐LENARD/GOODMAN
ORDER AND REPORT AND RECOMMENDATIONS
ON DEFENDANT’S DAUBERT MOTIONS
United States District Judge Joan A. Lenard referred [ECF No. 67] Defendant
Carnival Corporation’s (“Carnival”) two Daubert1 motions [ECF Nos. 63; 64] to the
Undersigned. For the reasons outlined below, the Undersigned orders and respectfully
recommends the following.
The Undersigned denies without prejudice Carnival’s Daubert motion
[ECF No. 63] to preclude testimony and opinions of Plaintiff LeeAnn Holderbaum’s
(“Holderbaum) medical expert, Dr. Craig H. Lichtblau, MD (“Lichtblau”), because of
District Judge Joan A. Lenard’s subsequent Order [ECF No. 145] granting the motion to
continue the trial so that the parties’ medical experts can reexamine Holderbaum, issue
supplemental expert reports, and undergo supplemental depositions. The medical
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
expert discovery is presently scheduled to be completed by August 31, 2015, so as of
now, Lichtblau’s analysis of Holderbaum’s medical condition is incomplete and not yet
ripe for review. Carnival may refile the motion once expert discovery is complete.
The Undersigned respectfully recommends that Carnival’s Daubert
motion [ECF No. 64] to strike and preclude the testimony of Holderbaum’s liability
expert, Frank Fore, P.E., be granted in part and denied in part. Specifically, (1) the
statement that a lack of warning signs significantly contributed to Holderbaum’s fall, (2)
the “Pertinent Facts from Depositions of Defendant” section, (3) the first three
paragraphs of the “Executive Summary” of his expert report, (4) the opinion that
Holderbaum’s “body movements are indicative of a trip, rather than a fall,” and (5) the
statement that Holderbaum “had just successfully negotiated the upper, identical flights
of stairs without difficulty, making it unlikely that she stumbled without an external
cause,” should be stricken, and Fore should be precluded from offering opinion
testimony about these subjects. The Undersigned recommends denial of all other
aspects of Defendant’s challenge to Fore.
By way of summary, the challenges to Fore’s opinions largely relate ‐‐ except in
the portions that the Undersigned recommends striking ‐‐ to the weight of his expert
opinion, not its admissibility. Carnival will have ample opportunity to pursue its
challenges at trial through vigorous cross‐examination and impeachment. Although
Daubert and its progeny require the Court to serve as “gatekeepers” for the
admissibility of expert opinion testimony, they do not mandate that the analysis focus
on the substance of the conclusions ‐‐ only the qualifications, methodology and
helpfulness of the expert and the expert’s opinions. Carnival says it is challenging
qualifications, methodology and helpfulness, and it does, to some extent, but the
experts’ qualifications and methodologies are sufficient to permit a fact‐finder to
Nevertheless, some of Fore’s purported opinions are based on little more than
rank speculation, and they should be excluded, along with his opinion testimony which
tries to tell the fact‐finder how to interpret facts or when to deem certain facts as
important. These opinions fail the Daubert evaluation and should not be permitted.
This maritime negligence action arises from injuries Holderbaum allegedly
sustained as a passenger aboard the cruise ship M/S Carnival Paradise (the “Paradise”),
which is owned and operated by Defendant Carnival Corporation (“Carnival”).
According to Holderbaum, she was about to descend the main mid‐ship stairway on
August 29, 2013 when her shoe caught on the metal “wear strip” on the nose of the top
stair, causing her to fall down the stairs and suffer a lower leg and ankle injury. She
contends that there is a gap between the bottom edge of the metal strip and the carpet
that projects a sharp “lip” toward passengers descending the stairway.
Holderbaum retained an engineer and general contractor, Fore, to measure the
stair landing, nosing, and lip in question, and to analyze the circumstances of
Holderbaum’s fall. Carnival moves [ECF No. 64] to strike Fore’s expert report and
preclude him from testifying at trial. Holderbaum opposes [ECF No. 103] the motion,
and Carnival has filed a reply [ECF No. 109].
The admission of expert testimony is governed by Federal Rule of Evidence 702,
as explained and refined by the United States Supreme Court in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999). Under this framework, district courts are charged with a gatekeeping function
“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).
Rule 702 provides that:
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
(a) the expertʹs scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
(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.
Fed. R. Evid. 702. The Supreme Court has stated that “[t]he inquiry envisioned by Rule
702 is . . . a flexible one.” Daubert, 509 U.S. at 594. “Many factors will bear on the
inquiry,” and no “definitive checklist or test” exists. Id. at 593.
To fulfill its obligation under Daubert, a trial court engages in a three‐part inquiry
and considers “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.’” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291‐92 (11th Cir. 2005) (quoting
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.1998)).
Although there is inevitably some overlap among these three basic factors of
qualifications, reliability and helpfulness, they are distinct concepts and should not be
merged together. See generally United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.
The second area of inquiry referenced above requires “an exacting analysis of the
proffered expert’s methodology.” McCorvey, 298 F.3d at 1257. That analysis takes into
consideration a number of factors, including: (1) whether the expertʹs methodology can
be, and has been, tested; (2) whether the expert’s scientific technique has been subjected
to peer review and publication; (3) whether the method employed has a known rate of
error; and (4) whether the technique is generally accepted in the scientific community.
Quiet Tech. DC‐8, Inc. v. Hurel‐Dubois UK, Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003); Rink,
400 F.3d at 1292. These factors, however, are non‐exhaustive. Kumho Tire, 526 U.S. at
150; Rink, 400 F.3d at 1292. Thus, “[i]n evaluating the reliability of an expert’s method . .
. a district court may properly consider whether the expert’s methodology has been
contrived to reach a particular result.” Rink, 400 F.3d at 1293 n.7 (citing Gen. Elec. Co. v.
Joiner, 522 U.S. 136 (1997)).
The burden of establishing the reliability of an expert’s opinions rests on the
proponent of that expert’s testimony. Frazier, 387 F.3d 1244.
As part of its gatekeeper role, the district court has “broad discretion in
determining whether to admit or exclude expert testimony, and its decision will be
disturbed on appeal only if it is manifestly erroneous.” Evans v. Mathis Funeral Home,
996 F.2d 266, 268 (11th Cir. 1993) (citing, inter alia, Salem v. U.S. Lines Co., 370 U.S. 31, 35
(1962)). “To warrant or permit the use of expert testimony, two conditions must be met:
first, the subject matter must be closely related to a particular profession, business or
science and not within the common knowledge of the average layman; second, the
witness must have such skill, experience or knowledge in that particular field as to
make it appear that his opinion would rest on substantial foundation and would tend to
aid the trier of fact in his search for truth.” Faircloth v. Lamb‐Grays Harbor Co., 467 F.2d
685, 694 (5th Cir. 1972) (internal quotation omitted).
Analysis of Carnival’s Challenges to Frank Fore
On September 22, 2014, Fore completed his Rule 26 report. [ECF No. 64‐1].
Carnival took Fore’s deposition on November 18, 2014. [ECF Nos. 64‐2]. Carnival seeks
to exclude all of Fore’s expert testimony for seven broad reasons: (1) Fore is unqualified
to render some of his opinions; (2) Fore fails to meet the methodology standards of
Daubert; (3) Fore’s opinion that the nosing fell below the standard of care is
unsupported; (4) Fore’s opinion that the handrail fell below the applicable standard of
care is also unreliable and unsupported; (5) Fore’s opinion that a lack of warning signs
contributed to Holderbaum’s fall is unsupported; (6) Fore’s testimony is not helpful to
the trier of fact; and (7) Fore’s opinions include improper and inaccurate conclusions of
law. The Undersigned will address each of the categories in turn.
Fore is qualified to render certain opinions.
Carnival first argues that Fore’s education, training and experience do not
qualify him to render opinions related to the selection, installation and maintenance of
carpeting, nosings, and handrails on a passenger cruise line. [ECF No. 64, p. 3]. Carnival
does not pinpoint any specific statements from Fore’s expert report as being beyond
Fore’s expertise. Instead, it merely broadly states that Fore’s C.V. does not reference any
education or experience that would qualify him to proffer any opinion about these
subjects. This argument is not convincing.
Fore’s educational background is as a Professional Engineer and a licensed
General Contractor in the state of Florida. [ECF No. 64‐1, p. 6]. As part of his experience
in the field of general contracting, he designed, constructed and maintained stairways.
[ECF No. 52‐1, p. 2]. Since 1991, Fore has owned and operated an engineering
consulting firm, for which he has “investigated and analyzed numerous accidents and
mishaps, including trips, slips, and falls, including on stairs and/or cruise ships.” [Id.].
This combination of educational and practical experience sufficiently qualifies Fore to
offer opinions and testimony on the selection, installation and maintenance of
carpeting, nosings, and handrails on a passenger cruise line.
Accordingly, the Undersigned recommends that the district court deny this part
of Carnival’s in limine motion and not preclude Fore from rendering opinions related to
the selection, installation and maintenance of carpeting, nosings, and handrails on a
passenger cruise line.
Fore meets Daubert’s methodology standards.
Carnival next argues that there is no identifiable scientific method which
objectively explains how Fore reached his conclusions. [ECF No. 64, pp. 3‐6]. Carnival
primarily focuses on the fact that Fore’s proffered methodology employs the factor of
“plausible alternative explanations,” but, in his analysis, Fore apparently did not
consider alternative scenarios as to how Holderbaum may have fallen. [Id., at pp. 3‐5].
Additionally, Carnival presents two specific statements from Fore’s report that it claims
are pure speculation and not based on a reliable methodology.
Although certain statements pointed to by Carnival in Fore’s report are pure
speculation and should be stricken, the Undersigned finds that overall, Fore does base
his opinions on sufficiently reliable methodology.
In an affidavit, Fore provides a generalized description of his methodology when
he is contracted as a consultant in matters such as this. “This process involves
hypothesizing the plausible alternative explanations presented by the human‐
equipment interface in question and then taking into account the relevant literature and
equipment performance standards, evaluating the known physical evidence, visiting
accident scenes, interviewing available witnesses, if any ‐ to see if conclusions can
reached to a reasonable degree of probability.” (sic) [ECF No. 52‐1, p. 2].
Carnival first narrows in on the “hypothesizing alternative explanations” aspect
of this methodology. Specifically, Carnival focuses on Fore’s lack of analysis of the
alternative explanations that Carnival believes may explain Holderbaum’s fall. Carnival
contends that because Fore’s report does not analyze “whether Plaintiff mis‐stepped,
whether she wore improper footwear, whether she had any medical problems, or
whether she had any problems with her gait prior to the subject incident[,]” Fore’s
report is therefore based upon a faulty methodology. [ECF No. 64, p. 4]. To support this
argument, Carnival cites to Fore’s deposition testimony, where he admits to not having
performed an independent analysis of Holderbaum’s shoes, as well as to never having
reviewed Holderbaum’s medical records or gait at the time of the incident. [Id., at pp. 4‐
5]. The Undersigned does not find this to be sufficient evidence to find that Fore’s entire
methodology is flawed. In fact, it appears that Fore engaged in a thorough, methodical
investigation in order to reach his conclusions. There are parts of his opinion which are
not permissible, to be sure, and they will be outlined below, but the Undersigned is not
prepared to recommend that all his opinions be excluded based on a defective
Fore identifies and quotes expert‐consensus safety standards that apply to
stairways on vessels and which are published by respected organizations such as the
International Maritime Organization (IMO), American Society for Testing and Materials
(ASTM), National Fire Protection Association (NFPA), and U.S. Access Board. [ECF No.
52‐1, pp. 7‐10]. These published, expert‐consensus vessel stairway safety norms and
Carnival’s own internal flooring standards assisted Fore in his determination of the
standard of care for the safety of a vessel stairway. [Id., at p. 9]. Fore also references
scientific studies on how people walk on stairs and why they fall on them. [Id., at pp. 3‐
6]. Fore inspected, measured, photographed, and assessed the scene of the plaintiff’s
mishap aboard the M/S Carnival Paradise. [Id., at pp. 12‐16]. Fore brought along the
plaintiff and Michael Longino (the plaintiff’s companion, who was present when she
fell). [Id., at p. 12]. Fore had Holderbaum demonstrate what she was doing and where
she tripped. [ECF Nos. 52‐1, p. 13; 64‐2, pp. 23‐24, 30].
It is clear that Fore engaged in an adequate scientific investigation of the incident
itself, as well as investigating various scientific literature and vessel regulations. The
fact that Fore did not consider Carnival’s specific hypotheticals in his report does not
undermine the methodology enough to justify a wholescale Order precluding him from
offering any expert opinion testimony. Carnival will, of course, be able to bring out the
alleged deficiencies it perceives in Fore’s methodology during cross examination.
Carnival may well be able to convince the fact‐finder that Fore’s methodology is too
incomplete and inadequate to rely upon, but that is a potential development which
must await trial. Accordingly, the Undersigned recommends that Fore’s analysis as a
whole not be precluded on the basis of his methodology.
However, Carnival points to two specific statements in Fore’s report which are
pure speculation and should be precluded because they lack an adequate scientific basis.
First, Fore’s report states that “Ms. Holderbaum’s body movements are
indicative of a trip, rather than a slip.” [ECF No. 64‐1, p. 28]. As noted above, Fore never
inquired into Holderbaum’s medical records or her gait at the time of the accident [ECF
No. 64‐2, p. 32]. Furthermore, this statement is made in the conclusion of Fore’s report,
under the title “factors contributing to this fall,” with no description of what analysis
actually led to it. Accordingly, the Undersigned recommends that Fore’s statement that
“Ms. Holderbaum’s body movements are indicative of a trip, rather than a slip” be
stricken and Fore be precluded from testifying to that at trial.
Second, Fore makes the unsupported statement that “[Holderbaum] had just
successfully negotiated the upper, identical flight of stairs without difficulty, making it
unlikely that she just stumbled without any external cause.” [ECF No. 64‐1, p. 28]. This
statement, also listed at the end of the report in the “factors contributing to this fall”
section, is also pure speculation. Fore presents no scientific methodology for how he
came to such a conclusion. Accordingly, the Undersigned recommends that Fore’s
statement that “[Holderbaum] had just successfully negotiated the upper, identical
flight of stairs without difficulty, making it unlikely that she just stumbled without any
external cause” be stricken and that Fore be precluded from testifying to that at trial.
Fore’s opinion on the nosing and the standard of care is supported.
Carnival next argues that because Fore’s opinion on the nosing of the stairs is
based upon non‐binding regulations and guidelines, it is speculation and conjecture.
[ECF No. 64, p. 10]. This argument is not persuasive.
First, “[d]istrict court judges in the Eleventh Circuit have followed the rule that
‘failure to follow recognized rules that are not mandatory is admissible to show how a
reasonable person might have acted.’” Cook v. Royal Caribbean Cruises, Ltd., No. 11–
20723–CIV, 2012 WL 1792628, at *3 (S.D. Fla. May 15, 2012) (citing Darville v. Rahming
Shipping, Ltd., No. 85–1282–CIV–MARCUS, 1987 WL 48393, at *10 (S.D. Fla. Dec. 17,
1987) (rejecting argument that regulations for vessel of one size were irrelevant to one of
a smaller size because “it is arguable that [defendantʹs] failure to fulfill [non‐binding]
Coast Guard or other maritime requirements still constituted some evidence of
negligence”).2 Thus, the fact that the regulations Fore cites to may be non‐binding is
insufficient to resolve the issue of whether his testimony is based upon a supportable
methodology. Fore’s testimony applies various regulations and guidelines (that may or
may not be binding; that is not the issue being decided in this motion) to the facts of the
conditions at the location where Holderbaum fell. In a broad sense, there is nothing
inappropriate about following this methodology.
Other federal districts and circuits (and state courts) have followed this
evidentiary rule, as have state appellate courts. See, e.g., Robertson v. Burlington N. R.R.
Co., 32 F.3d 408 (9th Cir. 1994) (holding trial court did not err by admitting federal
OSHA noise‐level standards and advising the jury that they were not binding and could
not, standing alone, be used to establish negligence as a matter of law); Giorgio v.
Holland Am. Line, Inc., No. C05–0038JLR, 2006 WL 1042003, at *2 (D. Wash. Apr. 4, 2006)
(“[r]egulations that are not binding by force of law, and therefore do not establish
negligence per se, may nonetheless be admitted for the purpose of aiding the finder of
fact in determining the applicable standard of care”); Donlon v. Gluck Grp., LLC, No. 09–
5379 (JEI/KMW), 2011 WL 6020574, at *6 (D.N.J. Dec. 2, 2011) (denying summary
judgment motion filed by houseboat manufacturer in lawsuit filed by person who fell
down the stairs of a houseboat, holding that non‐binding standards promulgated by the
American Society for Testing and Materials were admissible because a jury could use
the evidence to conclude that the stairs “were defectively designed” and because the
standards put defendant “on constructive notice of the potential danger of the stairs”);
Alderman v. Wysong & Miles Co., 486 So. 2d 673 (Fla. 1st DCA 1986) (affirming judgment
entered in defendantʹs favor in a products liability action and rejecting argument that
trial court improperly admitted evidence of industry standards provided by a private,
Substantively, Carnival’s motion frequently attacks the weight of Fore’s opinion
concerning the analysis of the nosing and regulations, rather than Fore’s actual
methodology. For instance, concerning the SOLAS regulations, which Fore states are
binding on Carnival and require that walkways be free of tripping hazards and that
stairway treads be kept to minimum dimensions in order to reduce the risk of people
tripping over them, Carnival emphasizes that the SOLAS regulations do not define
tripping hazard and do not give specific dimensions or values for stairway treads. [ECF
No. 64, p. 7]. However, this type of inquiry bears more on the weight of Fore’s
testimony, rather than on the methodology that he uses. Fore’s purpose as an expert is
to present “testimony [that] 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.’” Rink, 400 F.3d at 1291‐92.
The SOLAS standards are not common knowledge to the general public, nor are
the interpretations of any ambiguous phrases found in them. It is thus the expert’s role
in a situation like this to provide the jury with insight and help as to what these
regulations are, what they mean and how they are applied. Carnival’s contention that
certain ambiguities in the regulations render Fore’s testimony as pure speculation is
misplaced, as the ambiguities in these regulations actually reinforce the need for an
expert to assist the jury in sorting through these sources to try to establish the standard
of care in this negligence action. Accordingly, the Undersigned rejects Carnival’s
challenge as an attack concerning the weight of the opinion, not the threshold
Carnival repeats this same theory concerning the National Fire Protection
Association’s (“NFPA”) standards concerning lips on stairs [ECF No. 74, p. 8], the Draft
Passenger Vessel Accessibility Guidelines (“DVPAG”) [Id., at pp. 8‐9], two sets of
guidelines from the American Society for Testing and Materials (“ASTM”) [Id., at p. 9],
and Carnival’s own safety standards [Id., at pp. 9‐10]. Concerning the NFPA standards,
Carnival contends that Fore’s use of these standards is not reliable because they state
only that any nosing should be free of “lips that could trip stair users[,]” and do not
provide a value for stair treads. [Id., at p. 8]. As stated above, this is a situation that
permits an expert to offer an informed opinion on what that regulation actually means,
in practical terms, in order to help the jury understand.
Concerning DVPAG, Carnival dives into the minutiae of the regulations in order
to undermine the strength of Fore’s opinion that the nosing measured outside this
recommended guidelines. [Id., at pp. 8‐9]. Carnival particularly focuses on the fact that
Fore pushed down on the carpet to make his measurement, an action not expressly
called for in the guidelines. For this portion of the argument, Carnival selectively quotes
from Fore’s deposition and leaves out a crucial explanation he provides as to why it is
appropriate to measure the nosing in the manner that he did. Although Fore
acknowledges that the guidelines in question do not specifically state that the carpet
should be compressed when measuring, Fore also explained that compressibility is
known and often considered when discussing carpet against things like nosings. [ECF
No. 64‐1, p. 15]. Carnival’s contentions may surely be addressed during cross
examination, but they are not a reason to strike the expert’s findings or preclude his
testimony at trial.
Carnival raises issues with the ASTM and Carnival’s own safety standards on the
same issue. Each of these guidelines requires that carpet and/or treads be “flush.”
Carnival appears to contest that there is no definition of “flush” provided and then
concludes that there is therefore no reliable standard on which Fore may provide an
opinion. [ECF No. 64, pp. 9‐10]. However, as mentioned above, this is a situation in
which an expert opinion could be helpful. There are allegedly ambiguities in these
guidelines. A jury trying to understand how those in this industry read and interpret
the guidelines (and thus establish a custom which may become the standard of care to
which defendants may be held) may well be assisted by an informed expert opinion.
Carnival attacks only the ambiguity of the regulatory language, and that is insufficient
to find Fore’s opinion to be scientifically deficient.
Finally, Carnival contends that Fore’s reliance on a publication titled IMO/MSC
Circular 735 is inappropriate because it is a recommendation concerning elderly and
disabled persons’ needs, a point Fore acknowledges. There is no contention that
Holderbaum is elderly or disabled, and so Carnival claims that any analysis performed
by Fore using that publication is not based upon a reliable methodology. However,
there is no accusation that Fore misused the standards in that publication or misapplied
the facts. Thus, Carnival’s accusation, again, boils down to a challenge to the weight of
In Darville, the district court rejected the argument that regulations for a vessel of
one size were irrelevant to one of a smaller size because “it is arguable that
[defendantʹs] failure to fulfill [non‐binding] Coast Guard or other maritime
requirements still constituted some evidence of negligence.” 1987 WL 48393, at *10. And
in Sorrels v. NCL (Bahamas) Ltd., No. 14‐14467, 2015 WL 4619887, at *4 (11th Cir. Aug. 4,
2015), the Eleventh Circuit similarly found that even though a non‐binding standard for
flooring on a passenger cruise line generally discussed standards for workers, it did not
follow that the standard was automatically inapplicable in a case where a passenger was
injured on the floor.
Carnival argues that Fore’s analysis of IMO/MSC Circular 735 is not based on a
reliable methodology because the standards concern the needs of the elderly and
disabled. However, the fact that the standards concern people of a different
classification than Holderbaum does not make those standards completely irrelevant to
establish the standard of care that a cruise line owes to its passengers of all
classifications. See Sorrels, 2015 WL 4619887, at *4. To be sure, those standards may be
accorded less weight than some other set of guidelines or regulations that are generally
applicable, but that is an issue to be weighed by the trier‐of‐fact, not conclusively
determined as excludable by the Court based on a Daubert motion.
Accordingly, the Undersigned recommends that the District Court reject
Carnival’s argument and not preclude Fore from offering opinions and testimony
concerning the standard of care for nosings based upon various binding and non‐
Fore’s opinion that the handrail fell below the standard of care is
supported by a sufficiently reliable methodology.
Carnival next argues that Fore’s opinion on handrails is not supported by a
reliable methodology because all of the standards, regulations and guidelines are non‐
binding. The Undersigned addressed this very issue above concerning the standard of
care of the nosings on the stairs. The Undersigned applies the same reasoning
concerning handrails. To repeat, “[d]istrict court judges in the Eleventh Circuit have
followed the rule that ‘failure to follow recognized rules that are not mandatory is
admissible to show how a reasonable person might have acted.’” Cook v. Royal Caribbean
Cruises, Ltd., No. 11–20723–CIV, 2012 WL 1792628, at *3 (S.D. Fla. May 15, 2012) (citing
Darville v. Rahming Shipping, Ltd., No. 85–1282–CIV–MARCUS, 1987 WL 48393, at *10
(S.D. Fla. Dec. 17, 1987) (rejecting argument that regulations for vessel of one size were
irrelevant to one of a smaller size because “it is arguable that [defendantʹs] failure to
fulfill [non‐binding] Coast Guard or other maritime requirements still constituted some
evidence of negligence”).
So, even if the standards are non‐binding (and the Undersigned is not making
any judgment on whether they are or not), they still may be used by an expert and
presented to a jury in assessing the standard of care owed in a negligence case.
Accordingly, the Undersigned recommends that the District Court reject Carnival’s
argument and not preclude Fore from offering opinions and testimony concerning the
standard of care for handrails based upon various binding and non‐binding standards.
Fore’s opinion that a lack of warning signs contributed to Holderbaum’s
fall is unsupported by any scientific methodology.
Carnival next objects to Fore’s statement in his report that “Holderbaum
probably would not have fallen had the cruise line . . . posted a warning or crew to alert
her to the hazards involved . . . [and] Carnival’s failure to do so, more likely than not,
was a substantial contributing cause to her fall.” [ECF No. 64‐1, p. 28]. Carnival
contends that this statement is offered without any evidence or scientific analysis to
explain how the presence of warning signs would have prevented Holderbaum’s fall.
The Undersigned agrees that this statement lacks any supportable methodology, and is
also completely unhelpful to the trier‐of‐fact by offering nothing more than pure
It is clear that Fore offers no reasoning to explain his jump in logic from the lack
of warning signs to it being more likely than not that this incident would not have
occurred. There are no studies or any evidence whatsoever presented to support this
conclusion. “Expertise is a rational process and a rational process implies expressed
reasons for judgment. ‘An expert who supplies nothing but a bottom line supplies
nothing of value to the judicial process.’ʺ Miller v. Bayer Corp. (In re Trasylol Prods. Liab.
Litig.), Case No. 09‐81262, 2013 U.S. Dist. LEXIS 93552, at *11 (S.D. Fla. June 20, 2013)
(quoting Mid‐State Fertilizer Co. v. Exch. Nat. Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir.
1989)). Fore offers nothing but a bottom line assertion that warning signs would have
had some sort of effect on this incident, and without more, that statement must be
Accordingly, the Undersigned recommends that the District Court strike Fore’s
statement concerning the hypothetical effect of warning signs on the stairs and preclude
Fore from testifying as to that opinion.
Fore’s testimony is helpful to the trier of fact, but certain statements from
his report should still be stricken.
Carnival next contests that, as a whole, Fore’s testimony is not helpful to the trier
of fact. This argument is not persuasive for many of the reasons already expressed
above. The Undersigned has already found that portions of Fore’s testimony concern
helpful opinions based upon adequate scientific methodology. Additionally, in its
efforts to generally discredit Fore’s testimony as a whole, Carnival offers unconvincing
arguments which the Undersigned finds unpersuasive.
First, Carnival lists a series of alleged conclusions that Fore reached in his report
and claims that each of them is unhelpful to a fact‐finder. [ECF No. 64, p. 13]. Carnival
alleges that Fore’s conclusion that the step Holderbaum allegedly tripped on was an
unreasonably dangerous condition and that the handrail was not graspable are factual
conclusions to be left to the jury. [Id.] Carnival also alleges that Fore made improperly
conclusive arguments about the nature and condition of the stairs, and that those too
should be excluded as unhelpful to the trier‐of‐fact. [Id.].
Carnival does not however, pinpoint where these conclusions can actually be
found in the report and/or Fore’s extensive deposition testimony. Thus, the
Undersigned does not have any concrete statements to analyze under the appropriate
standards. Any opinion the Undersigned reaches on the subject of what Carnival claims
are improper conclusions by Fore would be an advisory opinion that Fore’s testimony
must remain within certain bounds. There are ample federal rules that the parties can
look to for guidance on what is and is not proper testimony. It is not necessary for this
Court to issue an advisory opinion reiterating one or more rules in the absence of an
actual controversy. Accordingly, the Undersigned rejects this argument.
However, there are certain opinions and statements that Carnival does
specifically mention in its argument that the Undersigned does deem unhelpful to a fact‐
finder and should be stricken.
First, in his expert report, Fore includes a section titled “Pertinent Facts from
Depositions of Defendant.” All he does here is repeat certain sections of testimony from
Defendant and draw conclusions from them. [ECF No. 64‐1, p. 16]. All of the facts in
this section (judging by the title) are presumably pulled directly from depositions of
Carnival’s representative(s). These facts are not used in combination with independent
findings by Fore to reach any expert‐level conclusion. The only purpose that this serves
is to reiterate, frame, interpret and highlight the testimony of others. In effect, Fore is
attempting to opine on how certain testimony should be assessed and why a fact‐finder
should deem it significant. This segment of the report does not “assist the trier of fact,
through the application of scientific, technical, or specialized expertise, to understand
the evidence or to determine a fact in issue.’” Rink, 400 F.3d at 1291‐92. Accordingly, the
Undersigned recommends that this entire section be stricken.
In the same vein, the first three paragraphs of Fore’s “Executive Summary” in his
report provide no useful information to help the trier‐of‐fact understand or determine a
fact in issue. [ECF No. 64‐1, p. 4]. The paragraphs at issue simply state general statistics
about falls in general, falls on cruise ships, and cruises in general. [Id.]. These statistics
serve no purpose in helping a juror understand any issue or determine any facts
concerning this specific case and incident. Accordingly, the Undersigned recommends
that these statements be stricken as well.
Therefore, overall, the Undersigned finds that a significant part of Fore’s
testimony is generally helpful to the finders of fact, but the “Pertinent Facts from
Depositions of Defendant” section and the first three paragraphs of the “Executive
Summary” of Fore’s expert report should be stricken, and Fore should be precluded
from testifying about the subjects therein.
Fore’s opinions do not include improper or inaccurate conclusions of law.
Finally, Carnival asserts that Fore’s opinions contain improper and inaccurate
conclusions of law. Specifically, Carnival claims that Fore is presenting an inadmissible
legal conclusion when he opines, as he did in his deposition, that SOLAS is
“mandatory” and has “legal effect” on vessel operators (on ships flagged by countries
that have signed the SOLAS convention) [ECF No. 64‐2, p. 27]. [ECF No. 64, p. 15].
Additionally, Carnival claims that Fore’s statements that the various codes and
standards he refers to are “[a]pplicable marine safety regulations, codes, standards,
guidelines, and recommendations” [ECF No. 64‐1, p. 11] are also inappropriate legal
conclusions. This argument is not well taken.
There is no “per se rule against testimony regarding ultimate issues of fact. By
the same token, however, courts must remain vigilant against the admission of legal
conclusions, and an expert witness may not substitute for the court in charging the jury
regarding the applicable law.” United States v. Milton, 555 F.2d 1198, 1203 (5th Cir.
1977).3 And while it is true that Federal Rule of Evidence 704 “states that testimony in
the form of an opinion or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact[,] . . . Rule 704 was not
intended to allow experts to offer opinions embodying legal conclusions.” St. Cyr v.
Flying J Inc., No. 3:06‐cv‐13‐J‐33TEM, 2008 U.S. Dist. LEXIS 107653, at *5 (S.D. Fla. June
29, 2008) (citing Advisory Committee Notes to Rule 704 Fed. R. Evid.).
The St. Cyr court ultimately ruled that an expert was qualified by the court to be
an expert on the cause and origin of a fire at the heart of the case, but that did not
qualify him to make legal conclusions regarding the plaintiffs’ duty to maintain a
propane system or other legal issues. Id. In Brown v. Bray & Gillespie III Mgmt. LLC, the
court concluded that an expert’s opinion that “the operators of the hotel knew, or
should have known, that hotel water systems, including whirlpool spas, present a risk
of Legionnaireʹs Disease and must be maintained to minimize Legionella bacteriaʺ was
an inappropriate legal conclusion because an expert “may not testify as to what these
Defendants knew or should have known.” No. 6:06‐cv‐661‐Orl‐22GJK, 2008 U.S. Dist.
LEXIS 45673, at *5 (M.D. Fla. June 10, 2008). Both of these cases are inapposite to Fore’s
deposition testimony and his expert report.
The Eleventh Circuit has adopted as precedent the decisions of the former Fifth
Circuit rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981).
The applicable law in this case is the civil negligence standards. Specifically, Fore
is testifying to technical issues surrounding causation and the standard of care, in the
civil liability context, to which Carnival is held. In the statements that Carnival has
pinpointed, there are no inappropriate conclusions that substitute the expert’s opinion
on the applicable law in this case for that of the Court.
Concerning the statements on SOLAS, it is perfectly reasonable for an expert to
explain what SOLAS is, which is a convention concerning safety at sea that numerous
nations have signed. It is not common knowledge as to what the convention is and what
its effect is on flagged ships. Thus, an expert explanation as to the nature of that
convention and its effect is relevant, and there is no rule barring a witness from making
such a statement. Fore would not be telling the jury what the specific standard of care is
in this situation. Instead, he would be providing the jury with the information that it
may use to help determine for itself the specific standard of care.
Concerning the references to “[a]pplicable marine safety regulations, codes,
standards, guidelines, and recommendations[,]” the Undersigned reaches the same
conclusion. As stated above concerning the use of non‐binding standards in Fore’s
analysis, such regulations, standards, guidelines and recommendations are all relevant
to determining the standard of care in this negligence action. At no point in his
deposition or in his report did Fore instruct as to what the standard of care actually is,
but, rather, pinpointed relevant pieces of information (certain guidelines and
regulations) that could assist the fact‐finder in determining the standard of care.
Accordingly, the Undersigned recommends that the District Court reject
Carnival’s argument and not preclude Fore from offering opinions and testimony
concerning SOLAS and the applicable marine codes, regulations, standards and
For the reasons set forth above, the Undersigned orders and respectfully
recommends the following.
The Undersigned denies without prejudice Carnival’s Daubert motion
[ECF No. 63] to preclude testimony and opinions of Holderbaum’s medical expert,
Lichtblau, because of District Judge Joan A. Lenard’s subsequent Order [ECF No. 145]
granting the motion to continue the trial so that the parties’ medical experts can
reexamine Holderbaum, issue supplemental expert reports, and undergo supplemental
depositions. The medical expert discovery is presently scheduled to be completed by
August 31, 2015, so, as of now, Lichtblau’s analysis of Holderbaum’s medical condition
is incomplete and not yet ripe for review. Carnival may refile the motion once expert
discovery is complete.
The Undersigned respectfully recommends that Carnival’s Daubert
motion [ECF No. 64] to strike and preclude the testimony of Holderbaum’s liability
expert, Fore, be granted in part and denied in part, as outlined above.
Under 28 U.S.C. § 636(b)(1) and Local Magistrate Rule 4(b), the parties have 10
days after being served with a copy of this Report and Recommendations to serve and
file written objections, if any, with the District Court. Each party may file a response to
the other party’s objection within 5 days of the objection.4 Failure to timely file
objections shall bar the parties from a de novo determination by the District Court of an
issue covered in this Report and Recommendations and bar the parties from attacking
on appeal the factual findings contained herein. LoConte v. Dugger, 847 F.2d 745, 749‐50
(11th Cir. 1988), cert. denied, 488 U.S. 958 (1988).
ORDERED AND RESPECTFULLY RECOMMENDED, in Chambers, in Miami,
Florida, August 23, 2015.
The Undersigned is shortening the usual time for interposing objections and
responses because the issues have been fully briefed and because the District Court will
need sufficient time to review any objections and responses before trial, which is
scheduled for October 5, 2015.
Copies furnished to:
Hon. Joan A. Lenard
All Counsel of Record
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