LeRoux v. NCL (Bahamas) Ltd.

Filing 84

ORDER Granting in part and Denying in part 37 Defendant's Daubert Motion to Strike Plaintiff's Expert Witnesses Randall Jaques and John Laughlin. Signed by Ch. Magistrate Judge Andrea M. Simonton on 6/19/2017. (par)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 15-23095-CIV-WILLIAMS/SIMONTON
SHERILYN J. LEROUX,
Plaintiff,
v.
NCL (BAHAMAS) LTD.,
Defendant.
_________________________/
ORDER ON DEFENDANT’S DAUBERT MOTION TO STRIKE
PLAINTIFF’S EXPERT WITNESSES
RANDALL JAQUES AND JOHN LAUGHLIN
This matter came before the Court upon Defendant’s Daubert Motion to Strike
Plaintiff’s Expert Witnesses Randall Jaques and John Laughlin, ECF. No. [37]. The
Plaintiff has filed a Response to the Motion, ECF No. [38], and the Defendant has filed a
Reply, ECF No. [42]. The Honorable Kathleen M. Williams has referred the Motion to the
undersigned Magistrate Judge, ECF No. [72]. For the following reasons, the undersigned
concludes that the Motion should be granted, in part, and denied, in part. Specifically, to
the extent that the Defendant seeks to strike the testimony of Randall Jaques, the Motion
is Granted, and to the extent that Defendant seeks to strike the testimony of John
Laughlin, the Motion is Denied, except as to those opinions regarding adequate lighting.
I.

BACKGROUND

This personal injury action was initiated when Plaintiff Sherilyn LeRoux (“Plaintiff”
or “LeRoux”) filed a Complaint against Defendant NCL (Bahamas) Ltd., (“Norwegian” or
“NCL”) related to injuries the Plaintiff suffered while aboard a cruise ship operated by
Defendant Norwegian, ECF No. [1]. In the Complaint, Plaintiff alleges that on or about
May 31, 2015, while she was a fare paying passenger aboard the M/V Norwegian Epic, she

sustained serious and disabling injuries to her right knee, hip and foot when she tripped
over the threshold between her suite and patio, ECF No. [1] at 2. Plaintiff contends that
her injuries were caused by the negligence of NCL by: 1) failing to adequately warn
passengers of the dangers associated with a raised threshold; and, 2) not having a
threshold that was designed and built to not constitute a tripping hazard, ECF No. [1] at 2.
In the Defendant’s Answer and Affirmative Defenses, the Defendant contends, inter alia,
that the Plaintiff’s own negligence contributed to the accident, that the Defendant had no
notice or knowledge of the alleged unreasonably dangerous condition and therefore had
no duty to warn the Plaintiff, and that the condition was open and obvious and should
have been observed by Plaintiff through the ordinary use of her senses, ECF No. [6] at 23.
In her Supplemental Disclosures, the Plaintiff has identified several experts, two of
whom are at issue in the Defendant’s Daubert Motion to Strike, Randall Jaques, a
Maritime Safety Consultant, and John Laughlin, an engineer, ECF No. [37]. The Plaintiff
has filed a Response to the Motion to Strike, which includes amended reports from the
witnesses at issue, ECF Nos. [38-2] [38-3]. The Defendant has filed a Reply, ECF No. [42].
II.

MOTION TO STRIKE

The Defendant has filed a Motion to Strike seeking to exclude Randall Jaques
(“Jaques”), from testifying as a maritime safety expert in this action contending that
Jaques is unqualified to render opinions that are beyond issues of safety and security,
ECF No. [37] at 2. The Defendant contends that Jaques’ opinions are bare and anecdotal
and are not support by any methodology. Defendant further argues that the opinions
consist of conclusory statements that are not helpful and thus fail to satisfy the
requirements of Federal Rules of Evidence 702 and 703, as well as the requirements set
2

forth in Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993). In support of its Motion,
the Defendant notes that Jaques’ testimony has been stricken or limited by courts in the
past.
The Defendant has also moved to strike the testimony of John Laughlin, ECF No.
[37]. Defendant contends that Mr. Laughlin’s testimony should be excluded because it is
unreliable and lacks discernible methodology, ECF No. [37] at 11. Defendant contends
that Laughlin fails to cite any statistics, reports or publications to support his contention
that the placement of stickers or striping on the threshold could eliminate a trip hazard
and that the placement of such materials is a common method of marking step nosing to
make them more visible. Defendant also criticizes Laughlin’s opinion regarding
adequate lighting and contends that Laughlin did not perform any type of lighting testing
and did not examine the threshold under similar lighting conditions, but instead merely
opines that the lighting was inadequate because it occurred at dusk. Finally, the
Defendant contends that Laughlin’s testimony will not assist the trier of fact because the
opinion that a sticker or stripe on the threshold would have warned passengers of a trip
hazard is not beyond the understanding of an average lay person.
The Plaintiff has submitted a response in opposition to the Defendant’s Motion as
well as amended reports from both Jaques and Laughlin, ECF No. [38]. In the written
response, the Plaintiff contends that Jaques has worked as a security officer for 15 years
on several different cruise lines where his principal duty was to personally investigate
“every accident and its cause that occurred on the vessel, on the pier and during shore
excursions.” ECF No. [38] at 3. Plaintiff contends that he is therefore qualified to render
opinions regarding ship industry standards. In support of this contention, after noting
that a witness may be deemed to be an expert based upon his/her experience and/or
3

training, the Plaintiff cites an opinion from the case of Joyce Higgs v. Costa Crociere, No.
15-cv-60280-JIC (S.D. Fla. Jan. 12, 2016) wherein the Court permitted Jaques to testify on
industry standards for cruise ship safety practices and causation. Plaintiff further
contends that Jaques’ opinions are reliable because he reviewed various materials,
including NCL’s photos and measurements and photos of identical thresholds on similar
cruise ships. The Plaintiff thus asserts that Jaques’ opinions on the standard of care
concerning floor-level obstructions meets the standards under Daubert and Federal Rule
of Evidence 702. Further, Plaintiff contends that Jaques’ opinions will be helpful to the
trier of fact and do not offer improper legal conclusions, but rather are opinions regarding
NCL’s violation of industry standards. Finally, Plaintiff contends that any deficiencies in
Jaques’ opinions go to the weight and not admissibility of those opinions and should be
challenged on cross-examination and not through a motion to strike.
As to Laughlin, the Plaintiffs emphasize his education, training and experience as
a forensics engineer who has reconstructed various accidents including those involving
walking surfaces. Plaintiff argues that given Laughlin’s extensive expertise, his opinions
are not required to provide citations, statistics or reports, but may be based on his own
skill, education and experience. Further, Plaintiff argues that to the extent that the
International Building Code that is referenced in Laughlin’s opinions is not applicable to
ships, information related to that Code is admissible to demonstrate how a reasonable
person may have acted based upon the standards in the Code. Plaintiff further dismisses
Defendant’s contention regarding Laughlin’s opinions regarding adequate lighting by
arguing that Laughlin is entitled to assume the disputed fact that the incident occurred at
dusk in concluding that the lighting was inadequate. Plaintiff additionally argues that
engineering and human factors are not within the common knowledge of a lay juror.
4

Plaintiff requests that if the Court deems that the Plaintiff’s expert reports are
deficient, in the alternative to striking the opinions of Jaques and Laughlin, the Plaintiff
be permitted to supplement those disclosures and reports, ECF No. [38] at 18.
In Reply, the Defendant first contends that the amended reports from the experts
submitted for the first time with Plaintiff’s opposition should be stricken because they are
untimely and were filed after the Defendant had filed its Motion to Strike, ECF No. [42]. In
addition, as to Jaques, the Defendant contends that he is not qualified to render any
engineering opinions or opinions related to the use and placement of warning signs
because his experience is in security and law enforcement. The Defendant then cites
various other opinions in which Jaques has been excluded as an expert as to certain
topics including Mendel v. Royal Caribbean Cruises Ltd., 10-cv-23398 (S.D. Fla. 2010),
Fraley v. Oceania Cruise, Inc., No. 13-20244-CIV, 2015 WL 1131015 (S.D. Fla. March 12,
2015), and Umana–Fowler v. NCL (Bahamas), Ltd., No. 13–cv–23491, 2014 WL 4832297, at
*1 (S.D. Fla. 2013). The Defendant further contends that because Jaques did not inspect
the ship and relied on photographs from another ship which displayed a different
doorway than Plaintiff’s cabin doorway, his opinions are not based upon a reliable
methodology. Finally the Defendant contends that Jaques’ opinions are not helpful to
the trier of fact because those opinions only provide impermissible legal conclusions
disguised as expert testimony.
As to Laughlin, in its Reply, the Defendant only contends that his opinions are
unreliable because he relied, in part, on the International Building Code, which does not
apply to cruise ships, ECF No. [42] at 6.

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III.

LEGAL FRAMEWORK AND ANALYSIS
A.

Admissibility of Expert Testimony

Federal Evidence Rule 702 governs the admission of expert testimony in federal
court, and provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.
District courts have a duty under Rule 702 to “ensure that any and all scientific testimony
or evidence admitted is not only relevant, but reliable.” Wilson v. Taser Int'l, Inc., 303 F.
App’x 708, 714 (11th Cir. 2008) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993)). Thus, a Court performs a “gatekeeping role” regarding admissibility of
expert testimony, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).
The Eleventh Circuit has set out three requirements that an expert must meet
before his or her opinions may be admitted. Hughes v. Kia Motors Corp., 766 F.3d 1317,
1328 (11th Cir. 2014). First, the expert must be qualified on the matter about which he or
she intends to testify. Id., citing City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d
548, 562 (11th Cir. 1998). Second, the expert must employ reliable methodology. Id. 1

1

In Daubert, the Supreme Court set out four non-exclusive criteria for reliability
determinations: “(1) whether the expert's methodology has been tested or is capable of
being tested; (2) whether the technique has been subjected to peer review and
publication; (3) the known and potential error rate of the methodology; and (4) whether
the technique has been generally accepted in the proper scientific community.” Wilson v.
Taser Int'l, Inc., 303 Fed. Appx. 708, 714 (11th Cir. 2008) (citing McDowell v. Brown, 392
F.3d 1283, 1298 (11th Cir. 2004) (citing Daubert, 509 U.S. at 595. These factors may guide
6

Third, the expert's testimony must be able to assist the trier of fact through the
application of expertise to understand the evidence or fact in issue. Id.
However, it is not the role of the district court to make ultimate conclusions as to
the persuasiveness of the proffered evidence.” Rosenfeld v. Oceania Cruises, Inc., 654 F.
3d 1190 (11th Cir. 2011) (quoting Quiet Tech. DC–8, Inc. v. Hurel–Dubois UK Ltd., 326 F.3d
1333, 1341 (11th Cir. 2003). “Quite the contrary, ‘vigorous 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.’” Quiet
Tech., 326 F.3d at 1341 (quoting Daubert, 509 U.S. at 596). Indeed, “in most cases,
objections to the inadequacies of a study are more appropriately considered an objection
going to the weight of the evidence rather than its admissibility.” Hemmings v. Tidyman's
Inc., 285 F.3d 1174, 1188 (9th Cir. 2002). See also Quiet Tech., 326 F.3d at 1345 (noting
that, “[n]ormally, failure to include variables will affect the analysis' probativeness, not its
admissibility” (quoting Bazemore v. Friday, 478 U.S. 385, 400 (1986)).

a district court's reliability inquiry, but the district court ultimately has “broad latitude” as
to how it determines reliability. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

7

B.

Application of Daubert and Rule 702 to Jaques’ Testimony
1.

Randall Jaques’ Preliminary Rule 26 Report

2

As stated above, the Defendant seeks to exclude the testimony of Plaintiff’s expert
Jaques based upon his lack of qualifications, the unreliable methodology he utilized in
arriving at his opinions, and because his testimony is not helpful to the trier of fact.
In the first paragraph of the Preliminary Rule 26 report, Jaques states that he was
retained by the Chaffin Law firm to provide opinions in the LeRoux case related to why
Mrs. LeRoux tripped and fell when coming inside of her cabin from the balcony, and to
formulate opinions as to why NCL failed to place proper warning signs on the glass
balcony doors, and warning yellow “Watch your step” striping along the base of the
threshold, ECF No. [37-1] at 29. Jaques further states that he was asked to conduct a site
inspection onboard the Norwegian EPIC but was unable to do so because the vessel was
located in Europe. Jaques’ Initial Preliminary Report offers the following opinions:
1. Norwegian cruise lines failed to apply or attach any
kind of visual warning sign to the glass door, both on the
inside of the stateroom and on the outside. This lack of visual
2

As stated above, the Plaintiff has submitted Amended Reports for both Jaques and
Laughlin which the Defendant has sought to strike as being untimely. The undersigned
has reviewed the Amended Reports. For purposes of resolving the instant Motion to
Strike, the undersigned has only considered the Preliminary Reports because the
analysis regarding whether Jaques and Laughlin should be excluded is unaltered by the
additional material included in the Amended Reports. In other words, the amendments to
the Jaques’ Report do not provide a basis for finding that Jaques has satisfied any of the
requirements of Daubert; and the amendments to the Laughlin Report do not change the
undersigned’s determination that Laughlin is qualified to render the opinions he offers as
to the hazard of the threshold and the need for signage, applied reliable methodology in
reaching those opinions, and his opinions will assist the trier of fact. To the extent that
the Plaintiff requests that she be permitted to amend her expert reports, the undersigned
denies that request because the Plaintiff has offered no good reason for failing to provide
such opinions prior to the expiration of the expert opinion deadline and prior to the
Defendant filing its Motion to Strike.
8

safety warning to “Watch your Step, High Threshold” if
mounted can be seen by the passenger immediately prior to
exiting and entering the balcony door. Because of the carless
(sic) act NCL is at fault for Mrs. LeRoux tripping and falling as
she entered the stateroom.
2. Norwegian Cruise Lines is at fault for failing to place
additional yellow striping with black lettering on the threshold
warning the passenger to “Watch your Step”. NCL is aware of
this type of safety warning because they place these warning
stripes throughout their vessels. Had they placed this yellow
warning striping Mrs. LeRoux could have and would have
seen the high threshold and not tripped.
3. Norwegian Cruise lines is at fault for not following
within the industry standard as other cruise line companies
do, such as Disney, Crystal, and Celebrity. Placing these
signs is a (sic) industry standard to prevent this type of
accident from happening and warning the passenger of the
safety hazard in front of them.
ECF No. [37-1] at 34. The Report also discusses the photographs from another trip and
fall case (Lamar v. Carnival) and explains that the Lamar case demonstrates that when
the foot strikes the threshold of a door, the passenger vaults forward, ECF NO. [37-1] at
35. Jaques posits that it is for this reason that cruise lines, including NCL, place warning
signs on all doors leading out to open decks, ECF No. [37-1] at 7. Jaques states that NCL
fails to place those signs on the stateroom balcony which makes the threshold an
unforeseen hazard and states that as a maritime expert in maritime industry standards
that he knows that the steel deck surface is tremendously hard.
The undersigned addresses each of the three Daubert requirements as challenged
by the Defendant, in turn.
2. Jaques Is Not Qualified to Render the Opinions Offered in his
Preliminary Report
The Defendant contends that Jaques is unqualified to render his opinions because
his background in security and law enforcement provide no basis for Jaques to provide
9

opinions as a liability/maritime safety expert relevant to the facts of this case, ECF No.
[37] at 7. The undersigned agrees.
In the Preliminary Report, Jaques states that he has a background in the U.S.
military, in law enforcement as chief of security and safety officer aboard multiple cruise
ships, and as a private marine safety consultant, ECF No. [37-1] at 30. With regard to his
duties as a Chief Security Officer, Jaques states that he was employed by Carnival
Corporation upon his return from the Gulf War sometime after 1990, until sometime in the
early 2000s, ECF No. [37-1]. In that capacity, he was responsible for supervising tender
operations in ports, and was trained for emergency situations such as fire and evacuation
as a lifeboat commander. Jaques began to work for NCL in 2001 as full-time security
chief aboard various NCL vessels until he was deployed to Afghanistan in 2003. Between
March 2005 and July 2006, Jaques worked as a security manager and safety officer
aboard Holland America Line vessels, ECF No. [37-1] at 31. In his various on-board
vessel security officer positions, Jaques describes his scope of duties as follows:
As security officer I investigated every accident and its cause
that occurred on the vessel, on the pier, and during shore
excursions. These accident (sic) numbered approximately 15
to 25 per voyage. My estimated total accidents and injuries
investigated surpass 3,000 cases, both at sea and on land(sic)
Accidents ranged from slip and falls, trip and falls, stairwells,
head injuries, waterborne accidents, slide accidents, water
park accidents, limb amputations, death at sea, man over
board, criminal assaults, sexual assaults, tenders, gangways,
ramps, engine room falls, burns, fires, food allergies, bike
accidents, bus accidents, drowning, slide injuries, & scooter
accidents, propeller accidents, and emergency medical
evacuations at sea.
ECF No. [37-1] at 31. Jaques also states that since 2008 he has owned and operated his
own marine/maritime security and safety consultancy, ECF No. [37-1] at 31. In that
capacity, he states that the has performed hundreds of investigations and evaluations of
10

marine casualties involving cruise ships, and states that he is extremely well versed in
the emergency operations, and capabilities of the United States Coast Guard during an
air/sea emergency situation, ECF No. [37-1] at 31.
After a thorough review of Jaques’ personal background, for the following reasons
the undersigned concludes there is nothing in Jaques’ qualifications that would indicate
that he is an expert as to the cause and/or prevention of trip and falls related to the
construction and/or warnings of door thresholds on ships, or whether there is an industry
wide practice related to those warnings. While the Report indicates that Jaques has
investigated over 3,000 accidents and injuries, including slips and falls and trip and falls,
the Report fails to explain what actions Jaques took during the course of those
“investigations.” There is no statement that Jaques performed any type of analysis, either
forensic or reconstructive, or did anything other than responding to and reporting such
incidents. This point is made even clearer when the scope of the incidents which Jaques
investigated is considered. It is difficult to believe that Jaques is an expert in all
accidents and incidents that he has investigated which range from trips and falls to
sexual assaults, to food allergies, limb amputations, and engine room fires, as described
in his Report. In other words, that fact that Jaques may have responded to, collected
facts related to and created a report for a host of different incidents on a ship, which
reasonably could constitute an “investigation”, does not mean that he is qualified to
render an opinion on what constitutes industry standards to prevent trips on ships, or
proper signage related to those accidents.
To be clear, the express language of Rule 702, provides that a witness does not
need any particularized scientific training in order to be qualified to render an expert
opinion but rather may be qualified as an expert by knowledge, skill or experience.
11

However in this case, the Plaintiff has failed to sufficiently explain Jaques’ experience
with the type of injury at issue or with regard to industry standards related to the incident
at hand. In this regard, the Report is devoid of any statements regarding Jaques’
experience or training in examining signage or causation at the site of slip and fall
accidents, the number of slip and falls (as opposed to other incidents), or in industry
standards related to signage and slip/trip and falls. As such, Jaques is not qualified to
render an opinion on proper signage, NCL’s knowledge of the need for such signage, and
Ms. LeRoux’s likely reaction to the placement of such signage. Further, the Plaintiff has
failed to demonstrate that Randall Jaques is qualified to render an opinion on acceptable
visual warnings, inadequate ship threshold construction or standards, and/or the causes
of trips and falls.
Although Plaintiff is correct that Jaques has been qualified to testify as an expert
in the past, this is not the end of the qualification analysis because the proffered expert
must be an expert in the subject matter about which he proposes to testify. United States
v. Frazier, 387 F. 3d 1244, 1260 (11th Cir. 2004). As noted by the Defendant, Jaques'
testimony was excluded in Mendel v. Royal Caribbean Cruises, Ltd., Case No. 10–23398CIV-KING/MCALILEY, ECF No. [145], (S.D. Fla. 2012) as to all topics except his
measurement of distances using a tape measure. In that case, Magistrate Judge McAliley
recommended finding that Jaques was not qualified to testify regarding a hand railing
because Jaques’ experience as a security manager, safety officer, homicide investigator,
and expert witness in maritime crime and accidents, failed to establish that Jaques was
qualified to testify regarding the functionality of the design of handrail or on the necessity
for instruction on the use of handrails; rather, Jaques had no expertise in the area of

12

kinematics, biomechanics, human factors or ergonomics. 3 The undersigned reaches the
same conclusion in this case.
The cases cited by Plaintiff wherein the Jaques testimony was not excluded are
not helpful to the resolution of this case because none of those cases found that Jaques
was qualified to opine on the industry standards for design, safety and signage related to
the physical structure of the ship. Rather, in Meyer v. Carnival Corporation, the Court
cited Jaques for his knowledge of the existence of certain accidents that had previously
occurred on excursions for passengers aboard Carnival cruises. Meyer v. Carnival
Corporation, Case No. 12-20321-CIV-ZLOCH (S.D. Fla. Sept. 4, 2013). In Lancaster v.
Carnival Corp., Case No. 14-cv-20332-KMM (S.D. Fla. Feb. 22. 2015), Jaques was offered
and accepted as an expert in crowd control. Finally, although the Court in Higgs v. Costa
Crociere S.p.A. Company, 15-60280-CIV-COHN/SELTZER (S.D. Fla. January 11, 2016),
found that Jaques was qualified to testify about industry standards for safety practices
aboard cruise ships related to injuries sustained by a passenger when she tripped and
fell over a cleaning bucket while walking from the buffet, the undersigned respectfully
reaches a different conclusion as to whether Jaques’ security and safety experience are
sufficient for him to qualify as an expert regarding industry wide standards for signage
for thresholds in cabins and whether such signage would have prevented the Plaintiff’s
fall.
Simply put, Jaques is not qualified to render the opinions for which Plaintiff has

3

The Plaintiff contends that Mendel is inapposite because Jaques’ exclusion in that case
was because Jaques reviewed a different class of vessels and not the entire Royal
Caribbean fleet. Plaintiff however fails to address the issues regarding the court’s
determination in Mendel that Jaques was not qualified to render some of the opinions
that he offered related to the design and signage of the handrail because he lacked the
requisite experience.
13

offered him in this case.
3. The Methodology Utilized by Jaques is Unreliable and
His Opinions are Not Helpful to the Trier of Fact
The Defendant contends that Jaques has failed to provide any discernable
methodology in rendering his opinions. The question of whether an expert's testimony is
reliable depends on the facts and circumstances of the particular case. Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 158, (1999). Given the facts of this case, Jaques’
opinions lack the reliability required under Daubert.
Jaques states that for purposes of rendering an opinion in this case he: 1)
reviewed the complaint and the Defendant’s photographs taken aboard the Norwegian
Epic; and, 2) conducted a telephonic interview with Mrs. Sherilyn J. LaRoux. In his
Preliminary Report, Jaques states that he was asked to provide opinions as to why Ms.
LeRoux tripped and fell when coming inside her cabin from the balcony and to formulate
opinions as to why NCL failed to place proper warning signed on the glass balcony doors
and long the base of the threshold, ECF No. [37-1] at 1. The undersigned concludes that
Jaques’ opinions on these topics do not provide reliable methodology to withstand the
Defendant’s Daubert challenge. In fact, Mr. Jaques’ Report fails to explain any
methodology utilized in arriving at his opinions. 4 Mr. Jaques’ first opinion that NCL’s

4

At the outset, the undersigned notes that the Amended Report was prepared after the
expiration of the deadline for serving expert reports, and without seeking an extension of
this deadline. Thus, to the extent that the expert report offers new opinions regarding
industry standards, it is not permissible. Nevertheless, the undersigned will address
these opinions in an abundance of caution. Although the Plaintiff’s Amended Report
discusses industry standards in greater depth, (since the original report barely discussed
them) the undersigned reaches similar conclusions regarding the deficient methodology
utilized as to those opinions as well. The first of Jaques’ four opinions in the Amended
Report is that NCL’s decision to not apply warning signs on the balcony glass door fails
to comply with industry standards, ECF No. [38-2]. However, Mr. Jaques does not state
what the industry standards are for this particular stateroom configuration, how he
14

failure to apply or attach any kind of visual warning sign to the glass door is at fault for
Mrs. LeRoux tripping and falling as she entered the stateroom, provides absolutely no
explanation for his methodology in arriving at his conclusion, ECF No. [37-1] at 34. There
is no evidence that Jaques has any experience with the placement of such signs, or that
he has any particular expertise regarding the human kinetics and the ability to avoid a fall
if such signs are so placed, and thus his failure to cite any literature, studies or other
support renders the opinion unreliable. Similarly, Jaques’ second opinion that
Norwegian Cruise Lines is at fault for failing to place additional yellow striping with black
lettering on the threshold warning the passenger to “Watch your Step” and that NCL is
aware of this type of safety warning because “they place these warning stripes
throughout their vessels,” fails to make any distinction between thresholds in cabins and
patios and/or other doorways, and fails to specify where in the ship other step warnings
are placed. Again, Jaques fails to explain his basis for contending, other than
presumably common sense, that if such a strip was placed at the threshold that Ms.
LeRoux would have seen the high threshold and not tripped. Finally, Jaques’ statement

assesses what is considered industry-standard compliant or otherwise explain how
through his prior experience in investigating these types of incidents he is able to
determine that the failure to place a sign on the door would have prevented Ms. LeRoux
from injuring herself. The second opinion, that NCL is aware of visual safety warnings
because they place safety warning throughout their vessel, appears to only be based on
general observation, rather than a reliable methodology, or sufficient facts or data. As to
his final two opinions, Jaques refers to NCL’s failure to comply with industry standards
and SMS or SEMS shipboard management systems but fails to state what those
standards or systems require and fails to provide any data to support his generalized,
conclusory statements. Further, Jaques’ report refers to another case in which a
passenger “tripped and fell over a ramp threshold on the Norwegian Pearl.” ECF No. [382] at 7. Jaques then describes how NCL thereafter added yellow and black caution tape
to the ramp and added an eye level placard, and states that other cruise lines place
warning signs “on all doors leading out (sic) open decks.” ECF No. [38-2] at 7. However,
neither the prior NCL case cited by Jaques or his statement regarding precautions taken
by other cruise lines, pertain to the situation presented in this case, the requirements or
15

that NCL is at fault for not following the industry standard as other cruise line companies
do to prevent this type of accident from happening and warning the passenger of the
safety hazard in front of them lacks any reference to what constitutes an “industry
standard,” how Jaques determines what that standard is and whether a particular ship
has complied with the industry standard, and how he has determined that the failure to
comply with the industry standard causes the type of accident at issue. Jaques’ opinions
are the very type of ipse dixit that courts in this District have rejected. Geyer v. NCL
Bahamas Ltd., 203 F. Supp. 3d 1212, 1215 (S.D. Fla. Aug. 26, 2016) (citing Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997) and stating “[N]othing in either Daubert or the Federal
Rules of Evidence requires a district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert. . . . A court may conclude that there is
simply too great an analytical gap between the data and the opinion proffered.”). Indeed,
the advisory committee notes for Rule 702 state that:
If the witness is relying solely or primarily on experience, then
the witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied to
the facts. The trial court's gatekeeping function requires more
than simply “taking the expert's word for it.”
Fed. R. Evid. 702 advisory committee notes (2000 amends.) (emphasis added)).
Further, assuming arguendo that that Mr. Jaques’ experience provides an
adequate basis for him to offer opinions related to the issues at hand, and his
methodology utilized in reaching those opinions is sound, those opinions still should not
be admitted because they are not helpful to the trier of fact. Testimony is considered
helpful when it illuminates matters beyond the understanding of the average lay person.

industry standards for thresholds between cabins and balconies aboard a cruise ship.
16

United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004). Generally, expert testimony
will not assist the trier of fact and will be excluded if it “offers nothing more than what
lawyers for the parties can argue in closing arguments.” Id. at 1262–63. An expert
witness may testify as to his opinion on an ultimate issue of fact, but he “may not testify
as to his opinion regarding ultimate legal conclusions.” United States v. Delatorre, 308
Fed. Appx. 380, 383 (11th Cir. 2009). Furthermore, merely telling the jury what result to
reach is unhelpful and inappropriate. Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d
1537, 1541 (11th Cir. 1990).
Here, Jaques’ opinions fail to provide any information that is helpful to the fact
finder because those opinions generally state that if someone sees a warning sign to
watch his/her step, that he/she is less likely to trip and fall. However, because those
opinions are not based on any particular assessment beyond that of a lay person, and
have not been sufficiently connected to Jaques’ experience, they do not satisfy the
helpfulness prong of Daubert.
Finally, the undersigned notes that other courts in this district have also excluded
Jaques’ testimony based on their conclusion that the methodology utilized by Jaques
was not reliable, and that the opinions offered by Jaques were not helpful to the trier of
fact. In Umana–Fowler v. NCL (Bahamas), Ltd., No. 13–cv–23491, 2014 WL 4832297, at *3
(S.D. Fla. Sept. 19, 2014), Judge Williams excluded Mr. Jaques as an expert in a maritime
case. The plaintiff in Umana–Fowler sought to introduce Mr. Jaques' testimony as a
crowd control expert in a case “where one passenger bumped into another.” Umana–
Fowler, 2014 WL 4832297, at *3. The court found that Mr. Jaques' opinions did not meet
the reliability and helpfulness prongs of Daubert where Jaques failed to elaborate how he
conducted his analysis, and Plaintiff failed to demonstrate that the issue upon which he
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opined was relevant to the issues in the case. Similarly, in Fraley v. Oceania Cruise, Inc.,
No. 13-20244-CIV, 2015 WL 1131015 (S.D. Fla. March 12, 2015), the Court excluded Mr.
Jaques from testifying finding that the methodology employed by Mr. Jaques was not
reliable and that his opinions would not assist the trier of fact. Id. at *8-9. Finally, and as
noted by the Defendant, Jaques' testimony was excluded in Mendel v. Royal Caribbean
Cruises, Ltd., Case No. 10–23398-CIV-KING/MCALILEY (S.D. Fla. 2012) as to all topics
except his measurement of distances using a tape measure. In that case, Magistrate
Judge McAliley recommended excluding Jaques's opinions because they were not based
on a reliable methodology and would not be helpful to the jury because they concerned
issues of common understanding.
Accordingly, the undersigned concludes that Jaques’ opinions and testimony
should be excluded in this case because the Plaintiff has failed to demonstrate that
Jaques is qualified to render such opinions, that the methodology utilized by Jaques was
reliable and that Jaques’ opinions would be helpful to the trier of fact.
C.

Application of Daubert and Rule 702 to Laughlin’s Testimony
1.

John Laughlin’s Preliminary Report

The Defendant also challenges whether Mr. Laughlin’s opinions are reliable and
are of assistance to the trier of fact in this case. In his Preliminary Report, Mr. Laughlin
offers the following opinions:
1.
The threshold in Ms. LeRoux’s suite leading to
and from the patio, was a trip hazard.
2.
NCL did not adequately warn patrons of this
hazardous situation.
3.
NCL could have warned of the hazard by
utilizing a warning sticker on the door and noticeable paint on
the threshold.
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4.
NCL could have mitigated the hazardous
situation by installing a ramp on the outside of the doorway
and a code-compliant landing on the inside.
5.
Inadequate lighting on the patio would have
made the threshold lens visible and more likely to cause a
trip.
ECF No. [37-1]. For the following reasons, the undersigned concludes that Laughlin’s
opinions related to whether the threshold in Ms. LeRoux’s suite constituted a hazard for
which NCL failed to adequately warn Ms. LeRoux are admissible. However, Laughlin’s
opinions related to inadequate lighting are not sufficiently reliable and should be
excluded.
2.

Laughlin is Qualified to Offer the Opinions in His
Preliminary Report

Although the Defendant does not challenge whether Mr. Laughlin is qualified to
render an opinion regarding the safety and signage related to the Plaintiff’s ship-board
cabin, the undersigned nevertheless has reviewed Laughlin’s qualifications in assessing
whether his testimony should be excluded. Based on a review of Laughlin’s credentials
and his Report, the undersigned concludes that he is qualified to testify as expert
regarding whether the threshold between the Plaintiff’s cabin and the patio was a hazard
and whether that hazard could have been mitigated by NCL.
According to his Preliminary Report, Mr. Laughlin received a Bachelor of Science
in Bioengineering in 1993, and a Master of Bioengineering in 1995, ECF No. [37-1] at 7.
Laughlin currently works as a biomedical and mechanical engineer at the Laughlin
Engineering Firm, LLC., ECF No. [37-1] at 14. Laughlin’s Curriculum Vitae (“CV”)
identifies a number of areas of expertise including, injury potential/causation, human
factors, including visibility, perception/reaction and ergonomics, Accidents/Mechanical
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Engineering, including slips/trips and falls, and pedestrian incidents, ECF No. [37-1] at 14.
The CV additionally provides that as a forensic engineer, Laughlin has reconstructed
accidents involving, among other things, pedestrians and walking surfaces, ECF No. [371] at 15. The CV states that Laughlin has testified over sixty-five times, and has worked in
the orthopedic biomechanics, studying human kinematics.
3. Laughlin’s Methodology and Helpfulness to Trier of Fact
Similarly, the undersigned concludes that the methodology utilized by Mr.
Laughlin in arriving at his opinions about the safety hazard associated with the threshold
and the failure of NCL to warn of that hazard satisfies the requirements of Daubert and
702. Further, Mr. Laughlin’s opinions regarding the hazards and warnings related to the
threshold will be helpful to the trier for fact.
To prepare his Report, Laughlin reviewed photographs of the incident doorway,
measurements of the incident threshold, photographs of thresholds from similar suites,
examples of warning signage for similar raised thresholds, Plaintiff’s Original Complaint,
Defendant’s Better Response to Plaintiff’s First Request for Production, Plaintiff’s
Answers to First Set of Interrogatories from Defendants, United States Access Board:
Chapter 12 US Coast Guard CFR Report, United States Access Board: Recommendation
for Accessibility Guidelines for Passenger Vessels: Final Report Summary and the
International Building Code, ECF No. [37-1] at 7-8.
As to the methodology applied, the Report states that Laughlin considered
photographic evidence and measurements, conducted an application of building
standards and code to the incident threshold and determined appropriate warnings and
preventative measures, ECF No. [37-1] at 8. The Report states that the methodology
and/or testing is generally accepted and relied on by the engineering community for the
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analysis of slip and fall events, ECF No. [37-1] at 8.
The Report concludes that the threshold at issue was a trip hazard, and that there
were not adequate warnings of the hazardous situation, ECF No. [37-1] at 10. In addition,
the Report concludes that NCL could have warned of the hazard by utilizing a warning
sticker on the door and noticeable paint on the threshold, and/or mitigated the hazardous
situation by installing a ramp on the outside of the doorway and a code-compliant landing
on the inside, ECF No. [37-1] at 10. In addition, the Report concluded that inadequate
lighting on the patio would have made the threshold less visible and more likely to cause
a trip. ECF No. [37-1] at 10.
The Defendant contends that Laughlin’s methodology is unreliable because he
relied, in part, on the International Building Code (“IBC”), which does not apply to cruise
ships. Defendant thus contends that although experts can rely on non-binding
regulations to offer opinions, the expert must still demonstrate how the regulation is
applicable at all. However, Mr. Laughlin’s report did, in fact, explain why the International
Building Code was applicable in this case, as follows:
While [the International Building Code] may not be used for
nautical applications, it illustrates the standard to which most
pedestrians are accustomed. For pedestrians unaccustomed
to nautical construction, the 5 ½ inch elevation change is a
trip hazard, because it rises far above the expectation that a
land-based pedestrian would have at a doorway threshold.
[37-1] at 9. District 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. Holderbaum v. Carnival Corp., No. 13-24216-CIV,
2015 WL 5006071, at *5 (S.D. Fla. Aug. 23, 2015) (citing Cook v. Royal Caribbean Cruises,
Ltd., No. 11-20723-CIV, 2012 WL 1792628, at *3 (S.D. Fla. May 15, 2012); Darville v.

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Rahming Shipping, Ltd., No. 85-1282-CIV, 1987 WL 48393, at *10 (S.D. Fla. Dec. 17, 1987)).
Thus, in this case, even if the IBC is not mandatory on cruise ships, Laughlin’s
explanation regarding the Plaintiff’s expectation pertaining to the height of the doorway
threshold based on the standard IBC-complaint doorways is reliable. To the extent that
the Defendant disagrees with whether a land-based pedestrian would hold such an
expectation is an issue that goes to the weight of the testimony and is not a basis for
excluding Laughlin’s conclusion.
Moreover, based upon the photographs provided to Mr. Laughlin, and the
measurements of the doorway and threshold reflected in those photographs, the Report
discusses the height of the threshold and the warning stickers on the door of the
threshold. In addition, the Report then goes on to discuss the United States Access
Board, Chapter 13 US Coast Guard Report section 404.2.5, and the threshold height and
ramp requirements outlined in that section, ECF No. [37-1] at 9. The Report concludes
that the threshold at issue is a trip hazard based on the change in elevation and the
absence of a ramp. Further, the Report refers to a United States Access Board published
document regarding high thresholds on ship. Finally, the Report assumes that the raised
threshold was an unavoidable characteristic of the subject doorway and therefore NCL
should have provided an adequate warning to the patrons. Thus, the Report sets forth a
methodology and analysis regarding the safety of the threshold sufficient to satisfy the
reliability prong of Daubert.
Further, such determinations clearly would be helpful to the trier of fact because
the average lay person likely is unfamiliar with the construction, design, and warnings
necessary to provide a passenger with safe egress/ingress into a cabin with a particularly
high threshold and certainly is unfamiliar with the various standards that discuss those
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issues. Mr. Laughlin’s opinions regarding the hazards associated with the threshold
leading from the suite to the patio, the warnings related to that threshold and NCL’s
potential mitigation of the hazard should not be excluded based upon the Daubert
analysis.
However, the undersigned finds that Mr. Laughlin’s conclusions regarding the
inadequate lighting are not supported by a reliable methodology. On this point the
Report states, “Reportedly, the accident occurred at dusk and the patio was not
adequately illuminated at the time of the accident. Inadequate lighting only serves to
make the incident threshold less visible and more likely to cause a trip.” [37-1] at 10.
There is no reference to any scientific or industry standards in the Report on this
issue, or any description of any methodology to determine what would constitute
adequate lighting on the patio given the threshold. In addition, presumably not all
lighting is the same throughout the period described as “dusk” and there likely are a
multitude of factors that may alter how much light is available at that time of day. The
Report is devoid of any detail in this regard and also fails to explain how any such
variances were accounted for in arriving at the conclusion that the patio was not
adequately illuminated at the time of the accident.
Further, the conclusion offered by Mr. Laughlin regarding the lighting is not
beyond the knowledge of a lay person and thus is not helpful to the trier of fact because
Laughlin did not provide any scientific-based, or literature-based analysis related to this
issue and most people are aware that inadequate lighting makes walkways less visible
and increases the likelihood of a trip. Accordingly, the undersigned concludes that Mr.
Laughlin’s opinions regarding adequate lighting should be excluded.

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IV.

CONCLUSION

Accordingly, it is
ORDRED that Defendant’s Daubert Motion to Strike Plaintiff’s Expert Witnesses
Randall Jaques and John Laughlin, ECF No. [37] is GRANTED, in part, and DENIED, in
part, as set forth above in this Order. To the extent that the Defendant seeks to exclude
the testimony of Randall Jaques, the Motion is GRANTED. To the extent that the
Defendant seeks to exclude the testimony of John Laughlin, the Motion should is
DENIED, except as to Mr. Lauhglin’s opinions regarding the lack of adequate lighting.
DONE AND ORDERED in Chambers in Miami-Dade County, Florida, this 19th day
of June, 2017.
____________________________________
ANDREA M. SIMONTON
CHIEF UNITED STATES MAGISTRATE JUDGE

Copies via CM/ECF to:
The Honorable Kathleen M. Williams
All parties of record

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