Serrano et al v. American Airlines, Inc.

Filing 70

ORDER GRANTING DAUBERT MOTION granting 47 Motion to Strike. Signed by Judge Marcia G. Cooke on 11/8/2016. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-23382-Civ-COOKE/TORRES
ESTHER SERRANO,
Plaintiff,
vs.
AMERICAN AIRLINES, INC.,
Defendant.
___________________________________________/
ORDER GRANTING DAUBERT MOTION
Plaintiff Esther Serrano (“Plaintiff” or “Serrano”) brings this action against Defendant
American Airlines, Inc. (“Defendant” or “American”) for injuries she allegedly suffered after
falling from a mobile stairway while disembarking from an American flight. Defendant filed a
Daubert Motion (ECF No. 47) to exclude the testimony of Plaintiff’s expert. For the reasons
below, Defendant’s Daubert Motion is granted.
I.

BACKGROUND

Serrano was a fare-paying passenger on an American flight traveling from Miami,
Florida to Paris, France on October 2, 2013. The flight arrived at Charles de Gaulle Airport
the next morning, where Serrano and her fellow passengers were directed to exit the plane via
a mobile stairway. American’s ground handling agent, Alyzia Airport Services (“Alyzia”),
operated and secured the stairway. Serrano allegedly fell and suffered injuries while
descending from the mobile stairway. Parties disagree about whether Serrano’s fall was an
accident as required under the Convention for the Unification of Certain Rules Relating to
International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, 2242 U.N.T.S. 350
(“Montreal Convention”),1 or the result of her own error.

1

The Supreme Court has defined accident under the Montreal Convention as “an unexpected
or unusual event or happening that is external to the passenger,” which is “flexibly applied
after assessment of all the circumstances surrounding a passenger's injuries.” Air France v. Saks,
470 U.S. 392, 405 (1985) (referring to the Montreal Convention’s predecessor, the Warsaw
Convention).
1

To support her claims, Serrano wishes to submit expert testimony from forensic
engineer Paul M. Getty (“Getty”). Getty believes Serrano fell on at least one partially lifted,
lower stairway step during her descent and criticizes the recordkeeping surrounding Serrano’s
accident.
II.

LEGAL STANDARDS

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony.
It states the following:
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 if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702.
A district court has the responsibility of acting as a gatekeeper to exclude unreliable
expert testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). This
gatekeeping function applies to “all expert testimony,” whether based on “scientific
knowledge” or “based on technical and other specialized knowledge.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999). In performing this function, the district court’s role is not
“to make ultimate conclusions as to the persuasiveness of the proffered evidence.” Quiet Tech.
DC-8, Inc. v. Hurel-Dubois U.K. Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). “Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of proof
are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert,
509 U.S. at 596.
In order to determine the admissibility of expert testimony, a district court must
consider three issues: (1) whether the expert is qualified to testify competently about the subject
matter he intends to address, (2) whether the expert’s methodology is sufficiently reliable, and
(3) whether the testimony assists the trier of fact to understand the evidence through the
application of the witness’s expertise. Quiet Tech. DC-8, 326 F.3d at 1340 – 41. The party
seeking to introduce expert testimony must satisfy these criteria by a preponderance of the
evidence. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).

2

As for reliability, a purported expert opinion must meet three factors: “(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.” Cincinnati Ins. Co. v. Cochran, No. CIV.A. 99-0552-WS-C, 2005 WL
2179799, at *2 (S.D. Ala. Sept. 2, 2005) (internal quotation marks omitted). “For nonscientific
expert testimony, the trial judge must have considerable leeway in deciding in a particular case
how to go about determining whether particular expert testimony is reliable. . . . A district
court may decide that nonscientific expert testimony is reliable based upon personal knowledge
or experience.” Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331, 1338 (11th Cir.
2009) (internal quotation marks omitted). “In the context of an expert witness testifying on the
basis of specialized experience, a reliable methodology means that the witness must explain
how [his] 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 [of the case].” Lopez v.
Allstate Fire & Cas. Ins. Co., No. 14-20654-Civ-MGC, 2015 WL 5584898, at *6 (S.D. Fla. S.D.
Fla. Sept. 23, 2015) (alterations in original) (internal quotation marks omitted).
III.

DISCUSSION

While Getty’s engineering credentials are unquestioned, his opinions are either
unreliable or unhelpful for a jury. Thus, all of his opinions are inadmissible.
Based on his review of certain record evidence, Getty proffers opinions on the cause of
Serrano’s fall and the recordkeeping therein. See generally ECF Nos. 38-1, 47-4. He surmises
that the possible stairway model used during Serrano’s fall was either a TLD ABS 580 or a
Sovam SPS 9.19 model. Getty concludes that Serrano fell on, and was injured by, at least one
partially lifted, lower stairway step. In particular, Getty asserts Serrano placed her foot and
bodyweight on at least one elevated lower step, causing both the lower step to return to an
even-leveled position and Serrano to lose her balance and fall. Getty believes a step could have
been partially lifted because of a mechanical defect, or because someone unlatched a safety
barrier on the lower step by nicking their heel or luggage on it during disembarkment. Further,
Getty opines that American and Alyzia’s lack of records specifying the stairway model used on
Serrano’s flight contravenes airline industry standards for recordkeeping, which demands
airline records contain manufacturer names, models, serial numbers, and other pertinent
stairway information for each flight.

3

First, Getty’s opinions on Serrano’s fall are inadmissible. His observation about the two
possible stairway models is undisputed, and, thus, would not assist the jury. See Hibiscus Assocs.
Ltd. v. Bd. of Trs. of Policemen & Firemen Ret. Sys. of City of Detroit, 50 F.3d 908, 917 (11th Cir.
1995) (“Expert testimony is properly excluded when it is not needed to clarify facts and issues
of common understanding which jurors are able to comprehend for themselves.”). In addition,
though Getty asserts he used the scientific method and deductive reasoning in general to
analyze Serrano’s fall, he did not perform any testing or consult relevant publications to reach
his conclusions.2 Instead, he used his engineering knowledge and mobile stairway experiences3
to offer three possible reasons for a lifted step, which illustrates how speculative his opinion is.
Cf. Eberli v. Cirrus Design Corp., 615 F. Supp. 2d 1357, 1365 (S.D. Fla. 2009) (finding
inadmissible expert testimony from a witness who did not perform any aircraft engine tests and
offered several possible causes for aircraft engine failure). Getty’s analysis also underplays
contradictory evidence on the record. For one, he relies on some of Serrano’s representations
about her fall and discounts the French gate agent present during Serrano’s disembarkment,
who testified that she did not witness a step malfunction or collapse at the time of Serrano’s
fall. See generally ECF No. 53-1. He also sidesteps portions of Serrano’s deposition that recount
how Serrano fell on at least one step with protruding pieces, and not a lifted step as Getty
propounds. See ECF Nos. 47-7, 47-8. Taken together, I do not find Getty’s opinions on
Serrano’s fall pass Daubert’s reliability analysis.
Getty’s thoughts on American’s recordkeeping are also unreliable. He admits in his
deposition that there is no evidentiary basis to support his notion that a detailed record of the
stairway used during Serrano’s fall existed, and that he could not identify any formal industry
standards regarding stairway recordkeeping. See ECF No. 47-4 at 119 – 121. Though he
purportedly relies on personal knowledge when asserting his views on the need for detailed
2

Serrano blames American’s lack of stairway records for why Getty could not conduct any
tests on the model stairway in question. But nothing foreclosed Getty from testing a similar
TLD ABS 580 or Sovam SPS 9.19 model stairway. Serrano also belatedly attached to her
response a Flight Safety Foundation publication to show the principles Getty relied on to form
his opinions. See ECF No. 48-4. But Serrano fails to explain how or why the publication was
used, and Getty does not reference it in his expert report or deposition. As such, I do not
consider this publication in my analysis.
3
To be sure, a court may find an expert’s experience and knowledge alone sufficiently reliable
in certain contexts. But with his inadequate methods and minimization of conflicting evidence,
Getty’s testimony does not pass the Daubert analysis.
4

stairway information, Getty could not recall a time where an airline in his experience kept
serial number information for each mobile stairway used for each flight. See id. at 142; see also
Kaufman v. Pfizer Pharms., Inc., No. 1:02-CV-22692, 2011 WL 7659333, at *7 (S.D. Fla. Aug. 4,
2011) (stating that a purported expert “must explain how [his] experiences led to the
conclusions [he] reached, why [his] experiences are sufficient bases for [his] opinions, and how
[his] experiences are reliably applied to the facts of the case”). Getty ultimately cites to the
deposition of Alyzia’s ramp operation director, Bruno Meyer (“Meyer”), who raised possible
recordkeeping regulations germane to mobile stairways. See, e.g., ECF 47-4 at 126; see also ECF
No. 54-1. But Getty has no independent experience or knowledge on the topic. His mere
adoption of Meyer’s testimony on this matter is duplicative and would not further assist the
jury. See Hibiscus Assocs., 50 F.3d at 917; Eberli, 615 F. Supp. 2d at 1365.4
IV.

CONCLUSION

For the reasons above, Defendant’s Daubert Motion to Exclude the Opinions and
Testimony of Plaintiff’s Purported Expert Paul M. Getty (ECF No. 47) is GRANTED. Getty’s
expert testimony is excluded in its entirety.
DONE and ORDERED in chambers at Miami, Florida, this 8th day of November 2016.

Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record

4

While I will not entertain discovery disputes at this point of the litigation, the admissibility of
portions of Meyer’s deposition and other evidence related to recordkeeping fall beyond the
scope of this Daubert motion. For now, my ruling on recordkeeping only affects Getty’s
opinions on the topic.
5