Webb v. Carnival Corporation

Filing 112

ORDER granting in part and denying in part 53 Defendant's Motion to Strike Plaintiff's Expert Witness Randall Jaques under Daubert. Signed by Magistrate Judge Edwin G. Torres on 7/6/2017. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-24230-Civ-TORRES
NICOLE WEBB, individually and
as Personal Representative for the
Estate of Phillip Webb, Deceased,
Plaintiff,
v.
CARNIVAL CORPORATION,
Defendant.
_________________________________________/
ORDER ON DEFENDANT’S DAUBERT MOTION
TO STRIKE PLAINTIFF’S EXPERT WITNESS RANDALL JAQUES
This matter is before the Court on Carnival Corporation’s (“Defendant”)
Daubert Motion to Strike (“Motion”) Nicole Webb’s (“Plaintiff”) expert witness
Randall Jaques (“Mr. Jaques”).

[D.E. 53]. On November 10, 2016, Plaintiff timely

filed her response [D.E. 74] and Defendant replied on November 21, 2016.
75].

Therefore, this Motion is now ripe for disposition.

[D.E.

Having reviewed the

Motion, response, reply, and relevant authority, and for the reasons discussed below,
Defendant’s Motion is GRANTED in part and DENIED in part.
I.

BACKGROUND

This case involves the unfortunate and tragic death of Phillip “Aaron” Webb
(the “Decedent”) while cruising aboard the Carnival Dream. Prior to his passing,
the Decedent (30 years of age) resided in Missouri with his ex-wife, Plaintiff, and
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their three children, Brayden Alijah (12 years old), Addison (7 years old), and Destiny
(3 years old). In January 2015, the Decedent and Plaintiff went on a cruise with two
friends to Cozumel, Mexico. During the first day at sea, in a span of twelve hours,
twenty-two alcoholic beverages were purportedly served to Plaintiff and the
Decedent.

Fifteen of the twenty-two alcoholic beverages were Long Island Iced

Teas, which includes gin, tequila, vodka, rum and triple sec, totaling approximately
2.5 ounces of alcohol per drink. At around 12:00 am, the Decedent, Plaintiff and
their two friends were in the casino bar watching a live musical performer. At some
point, the Decedent fell off of his barstool due to his intoxication. After the fall,
Plaintiff and two friends purportedly told the bartender to stop serving the Decedent.
At this moment, the Decedent allegedly became aggressive and requested the
bartender to serve another drink, to which the bartender served the Decedent
another Long Island Iced Tea.
Shortly thereafter, Plaintiff and the two friends went to an adjacent club to
dance, leaving the Decedent at the casino bar because he wanted to smoke a
cigarette. At approximately 12:30 am, the Decedent went back to his cabin alone.
At approximately 1:05 am, the Decedent fell over his cabin balcony railing, striking
his head on the deck below. At 1:35 am, Carnival Security found the Decedent lying
lifeless on the deck. The Decedent’s blood alcohol content was .369 g/dl, over four
times the legal limit. As a result, Plaintiff contends that Defendant negligently
overserved the Decedent alcohol and brings this negligence claim under the Death on
the High Seas Act.
2

II.

APPLICABLE PRINCIPLES AND LAW

The decision to admit or exclude expert testimony is within the trial court’s
discretion and the court enjoys “considerable leeway” when determining the
admissibility of this testimony.

See Cook v. Sheriff of Monroe County, Fla., 402

F.3d 1092, 1103 (11th Cir. 2005).

As explained in Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R.
Evid. 702.1 The party offering the expert testimony carries the burden of laying the
proper foundation for its admission, and admissibility must be shown by a
preponderance of the evidence.

See Allison v. McGhan Med. Corp., 184 F.3d 1300,

1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th
Cir. 2004) (“The burden of establishing qualification, reliability, and helpfulness
rests on the proponent of the expert opinion, whether the proponent is the plaintiff or
the defendant in a civil suit, or the government or the accused in a criminal case.”).
“Under Rule 702 and Daubert, district courts must act as ‘gate keepers’ which
admit expert testimony only if it is both reliable and relevant.”

Rink v. Cheminova,

Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589). The

1

Rule 702 states:
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.
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purpose of this role is “to ensure that speculative, unreliable expert testimony does
not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th
Cir. 2002). Also, in its role as Agatekeeper,@ its duty is not Ato make ultimate
conclusions as to the persuasiveness of the proffered evidence.@

Quiet Tech. DC-8,

Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)
To facilitate this process, district courts engage in a three part inquiry to
determine the admissibility of expert testimony:
(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert reaches
his conclusions is sufficiently reliable as determined by the sort of
inquiry mandated in Daubert; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or specialized
expertise, to understand the evidence or to determine a fact in issue.
City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted).

The

Eleventh Circuit refers to the aforementioned requirements as the “qualification,”
“reliability,” and “helpfulness” prongs and while they “remain distinct concepts”; “the
courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing Quiet
Tech, 326 F.3d at 1341).
Furthermore, in determining the reliability of a scientific expert opinion, the
Eleventh Circuit considers the following factors to the extent possible:
(1) whether the expert’s theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of the particular scientific technique;
and (4) whether the technique is generally accepted in the scientific
community. Notably, however, these factors do not exhaust the
universe of considerations that may bear on the reliability of a given
expert opinion, and a federal court should consider any additional
factors that may advance its Rule 702 analysis.
4

Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are not
“a definitive checklist or test,” Daubert, 509 U.S. at 593, but are “applied in
case-specific evidentiary circumstances,” United States v. Brown, 415 F.3d 1257,
1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus “solely on
principles and methodology, not on conclusions that they generate.” Daubert, 509
U.S. at 594-95. It is also important to note that a “district court’s gatekeeper role
under Daubert ‘is not intended to supplant the adversary system or the role of the
jury.’” Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666 (11th
Cir. 2001)).

Rather, “[v]igorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580;
see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir.
2014) (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must
do a preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.’”) (quoting Kilpatrick v. Breg, Inc., 613
F.3d 1329, 1335 (11th Cir. 2010)).
III.

ANALYSIS

The focus of Defendant’s Motion is that Plaintiff’s expert, Mr. Jaques, presents
himself as a maritime safety expert, but is allegedly unqualified to render any
opinions in this case because they venture far beyond issues of safety and security.

5

Defendant further argues that Mr. Jaques’ bare anecdotal opinions are not supported
by any methodology and contain conclusory statements that simply mirror an
attorney’s arguments. Therefore, Defendant claims that Mr. Jaques’ opinions are
inadmissible because (1) they will not assist the trier of fact, (2) they are unreliable
and unsupported by any methodology, and (3) Mr. Jaques is unqualified.
Accordingly, Defendant seeks to strike Mr. Jaques’ as an expert witness because he
fails to satisfy any of the requirements of FED. R. EVID. 702, 703, and Daubert.2
Before discussing the parties’ respective arguments, a brief review of Mr.
Jaques’ professional background will be pertinent to the disposition of Defendant’s
Motion. Mr. Jaques’ experience has been primarily in law enforcement. [D.E. 53-1
at 2]. Mr. Jaques began his career in the maritime industry in 1991 as a chief
shipboard security officer for Carnival Corporation, working on approximately four
different vessels. As a chief security officer, Mr. Jaques was in charge of training
new crew members, training in shipboard policies and procedures, overviewing and
overseeing the shipboard safety of all passengers and crew, as well as ensuring that
the shipboard management system was followed.
At the beginning of his career, Mr. Jaques trained under the STCW-95 of the
United States Coast Guard and became a qualified seaman. STCW-95 is a form of
training required by all crew members servicing passengers on cruise vessels. Any
service-oriented crew member that has direct interaction with passengers goes

Defendant points out that Mr. Jaques is no stranger to Daubert challenges as
his testimony is frequently limited or stricken by courts in this District.
2

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through STCW-95 training. The training allows service-oriented crew members to
interact with passengers and spot human behavior problems. In 2015, Mr. Jaques
earned updated STCW-95 certificates in human behavior and safety at sea.
While employed with Carnival as a security officer in the early 1990s, Mr.
Jaques was a safety instructor, dive instructor, swimming instructor and a new
employee instructor under the executive committee. Mr. Jaques was tasked with
teaching new Carnival employees various STCW-95 courses that had to do with
human behavior, drugs, fights, passengers requiring immediate detention, and
passengers that needed to be monitored. In 2000, Mr. Jaques became a security
manager for Norwegian Cruise Lines, working on three different vessels. In 2006,
Mr. Jaques worked for Disney Cruise Lines as a safety officer and shipboard security
manager. In 2008, Mr. Jaques worked for Holland America Line as a safety officer
and shipboard security officer.
In addition to his experience in cruise line safety and security, Mr. Jaques
served as a police officer in Miami, Florida. Specifically, Mr. Jaques was a drug,
alcohol and recognition officer, as well as a traffic homicide officer. Since 2008, Mr.
Jaques has exclusively engaged in expert work and consulting. [D.E. 53-1 at 3, D.E.
53-2, at 17]. Mr. Jaques has also served as an expert or consultant in cases with
Plaintiff’s counsel on 40-60 prior occasions. [D.E. 1, at 3]. In light of Mr. Jaques
professional background, we will discuss the parties’ arguments in turn.

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A.

Helpfulness

Defendant’s first argument, in support of its Motion, is that Mr. Jaques’
opinions will not assist or help the trier of fact. “[E]xpert testimony is admissible if
it concerns matters that are beyond the understanding of the average lay person” and
offers something “more than what lawyers for the parties can argue in closing
arguments.” Frazier, 387 F.3d at 1262-63 (citations omitted). Furthermore, while
“[a]n expert may testify as to his opinions on an ultimate issue of fact . . . he ‘may not
testify as to his opinion regarding ultimate legal conclusions.’” Umana-Fowler v.
NCL (Bahamas) Ltd., 49 F. Supp. 3d 1120, 1122 (S.D. Fla. 2014) (quoting United
States v. Delatorre, 308 Fed. Appx. 380, 383 (11th Cir. 2009)). The Eleventh Circuit
has also made clear that “merely telling the jury what result to reach is unhelpful
and inappropriate.” Umana-Fowler, 49 F. Supp. 3d at 1122 (citing Montgomery v.
Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)).
Here, Defendant contends that Mr. Jaques’ opinions are no different than an
attorney’s closing arguments because they merely opine on whether the Defendant
breached its duty of care. Defendant takes issue with these opinions because Mr.
Jaques is purportedly attempting to usurp the role of a jury and go far beyond the
realm of an admissible expert opinion. Defendant also argues that parts of Mr.
Jaques’ expert report – with respect to allegations that the Defendant is hiding
surveillance footage – are unhelpful because it is false, confusing, and unfairly
prejudicial. Defendant claims that it produced all known surveillance footage of the
Decedent on the night of the incident to law enforcement and Plaintiff, and that there
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has been no indication of spoliation. Defendant argues that there is no evidence
that any additional video footage exists and that Mr. Jaques knows nothing of the
surveillance cameras on the cruise ship. Therefore, Mr. Jaques’ opinions should
allegedly be stricken because they lack the proper foundation and are impermissible
under well-settled Eleventh Circuit precedent.
Plaintiff’s response is that Mr. Jaques’ testimony is crucial in several ways.
First, Plaintiff argues that Mr. Jaques’ testimony will help explain the maritime
regulations to the trier of fact and how such regulations correlate with the details of
this case. Second, Plaintiff contends that Mr. Jaques’ testimony and insight as to
the responsibilities and training of shipboard bartenders goes beyond the knowledge
of a layperson and what is required by Carnival’s policies and procedures. Third,
Mr. Jaques purportedly has intimate knowledge concerning the required training on
cruise ships and how crew members spot human behavior problems stemming from
intoxication. As for Defendant’s allegation that Mr. Jaques’ expert report regarding
surveillance footage is false, confusing, and unfairly prejudicial, Plaintiff argues that
Mr. Jaques’ testimony is actually quite helpful because of his intimate knowledge of
internal policies and procedures.
Yet, Plaintiff’s arguments are, in part, unpersuasive because Mr. Jaques’
opinions are replete with impermissible legal conclusions. For example, in the first
paragraph of Mr. Jaques’ expert report, he asserts that Carnival breached its duty of
care and was the direct cause of the Decedent being grossly overserved with alcohol
and falling to his death. [D.E. 53-1]. The second paragraph further contends that
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“Carnival Corporation is at fault for failing to provide reasonable safe conditions for
the decedent during his voyage aboard the Carnival Dream.” Id. Nearly every
subsequent paragraph in Mr. Jaques’ expert report follows this trend with
statements that “Carnival Corporation is at fault” for failing to meet certain duties or
procedures with respect to the Decedent’s death.
The Eleventh Circuit has made clear that legal conclusions or statements
instructing what conclusion the jury should reach are impermissible to pass muster
under Daubert. See Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402
F.3d 1092, 1112 n.8 (11th Cir. 2005) (“[C]ourts must remain vigilant against the
admission of legal conclusions”) (citations & quotations omitted); see also
Montgomery, 898 F.2d 1541 (11th Cir. 1990) (“An expert may not . . . merely tell the
jury what result to reach.”). “A witness also may not testify to the legal implications
of conduct; the court must be the jury’s only source of law.” Montgomery, 898 F.2d
1541 (citing United States v. Poschwatta, 829 F.2d 1477, 1483 (9th Cir. 1987); United
States v. Baskes, 649 F.2d 471, 479 (7th Cir. 1980)).
Here, Mr. Jaques’ expert report suffers from the same deficiencies as in Higgs
v. Costa Crociere S.p.A. Co., 2016 WL 4370012 (S.D. Fla. Jan. 12, 2016). In Higgs,
Judge Cohn found that Mr. Jaques’ expert report contained impermissible legal
conclusions because it included statements that “Costa is at fault” and that the crew
“was careless.” As a result, Judge Cohn struck all of those statements because they
ran afoul of Eleventh Circuit precedent and Daubert. The same reasoning applies
here. Mr. Jaques rehashes the same opinions in this case with nearly identical legal
10

conclusions, except they apply to Carnival instead of Costa. The Court finds no
reason to depart from the well-reasoned conclusion reached in Higgs. The bulk of
Mr. Jaques’ expert report is essentially boiled down to eight conclusory legal
statements that Defendant is at fault for violating its own internal policies and
procedures regarding alcohol, security, and intoxicated passengers. [D.E. 53-1 at
7-9].

Therefore, Mr. Jaques may not testify that “Carnival is at fault” or that

Carnival breached its duty of care or failed to follow the proper procedures to protect
an intoxicated individual. The statements in the expert report must also be stricken
because they are ultimately legal conclusions. To this extent, Defendant’s Motion is
GRANTED.
However, Mr. Jaques’ testimony and expert report on industry regulations for
cruise safety practices is admissible because it goes “beyond the common knowledge
of the average lay person” and “is helpful in establishing the applicable standard of
care for Plaintiff’s negligence claim.” Higgs, 2016 WL 4370012, at *5. In addition,
Mr. Jaques may testify about the Defendant’s detailed policies and procedures that
are in place to prevent the over service of alcohol to customers, including those
procedures for what to do in the event of dealing with an intoxicated passenger.
Both subjects are helpful to the trier of fact because they “offer[] more than what the
lawyers for the parties can argue in closing arguments.” Bryant v. BGHA, Inc., 9 F.
Supp. 3d 1374, 1390 (M.D. Ga. 2014).

To this extent, Defendant’s Motion is

DENIED. Higgs, 2016 WL 4370012, at *5 (“Jaques may offer expert testimony
regarding industry standards for cruise ship safety practices”).
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As for the opinions in the expert report and testimony that relate to Defendant
being at fault for failing to produce all the required video footage from the California
Dream to Plaintiff, the Court finds that these statements are also improper.
Specifically, Mr. Jaques’ expert report makes the legal conclusion that “Carnival
Corporation is at fault for failing to follow the Cruise Ship [S]ecurity and [S]afety
[A]ct of 2010 . . . .” Id. at 9. Not only is this opinion based on an improper legal
conclusion, Mr. Jaques’ deposition testimony demonstrates that he had no basis for
reaching this conclusion, other than pure speculation. Mr. Jaques has (1) never
served on the California Dream, see id. at 48, does not know where the specific
locations of the surveillance cameras are in the ship’s casino, see id. at 48, and merely
reached his conclusion because Defendant, on prior occasions, “does not provide[] its
CCTV camera footage whenever asked for.” Id. at 53. As Mr. Jaques testified, the
basis for his opinion is that Defendant has – in unspecified prior circumstances –
failed to produce all the relevant video footage, which allegedly also occurred here:
Q: What do you believe happened to that video?
A. Well, without -- not sounding that I'm being too critical, but it’s been
my past experience that, unlike NCL, Carnival Corporation does not
provide its CCTV camera footage whenever asked for. Within the
industry and with the Cruise Ship Security and Safety Act, it’s very
clear that especially, especially in a case such as this, which involves
how do they know it couldn’t have been foul play in the beginning. But
in any respect, just to provide that video, which I know they have, and I
know what those cameras can do and what they're capable of doing, it's
something that they should have done.
Id. at 53-54.
Therefore, Mr. Jaques’ opinion is inadmissible because “‘[u]nder the regime of

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Daubert . . . a district judge asked to admit scientific evidence must determine
whether the evidence is genuinely scientific, as distinct from being unscientific
speculation offered by a genuine scientist.’” Allison, 184 F.3d at 1316–17 (quoting
Rosen v. Ciba–Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996)). Because Mr. Jaques’
expert report and testimony – with respect to allegations that Defendant is
withholding video footage from Plaintiff in violation of federal law – is nothing more
than a legal conclusion and lacks any credible support other than pure speculation,
Defendant’s Motion to this extent is GRANTED. See, e.g. Eberli v. Cirrus Design
Corp., 615 F. Supp. 2d 1357, 1365 (S.D. Fla. 2009) (“The fact that the opinion itself
merely lists potential causes instead of drawing any conclusion underscores just how
speculative it is”); Furmanite Am., Inc. v. T.D. Williamson, Inc., 506 F. Supp. 2d
1126, 1129 (M.D. Fla. 2007) (“[E]xpert evidence ‘must have a valid scientific
connection to the disputed facts in the case.”’) (quoting Allison, 184 F.3d at 1312).
B.

Qualifications

Next, Defendant argues that Mr. Jaques is unqualified to give any expert
testimony or opinion on the Decedent’s level of intoxication. See Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 154 (1997) (stating that Rule 702 requires that the expert be
qualified and that his testimony assist the trier of fact). An expert may be qualified
to testify in multiple ways: ‘”by knowledge, skill, experience, training, or education’”
and “not necessarily unqualified simply because her experience does not precisely
match the matter at hand.” Furmanite Am., Inc., 506 F. Supp. 2d at 1129 (citing
Maiz, 253 F.3d at 665, 669). “Determining whether a witness is qualified to testify
13

as an expert ‘requires the trial court to examine the credentials of the proposed
expert in light of the subject matter of the proposed testimony.’” Clena Investments,
Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012) (quoting Jack v.
Glaxo Wellcome, Inc., 239 F.Supp.2d 1308, 1314–16 (N.D. Ga. 2002)). “In other
words, a district court must consider whether an expert is qualified to testify
competently regarding the matters he intends to address.” Clena Investments, Inc.,
280 F.R.D. at 661 (citing City of Tuscaloosa, 158 F.3d at 562–63).
Determining an expert’s qualifications is not a stringent inquiry “and so long
as the expert is minimally qualified, objections to the level of the expert’s expertise
[go] to credibility and weight, not admissibility.” Vision I Homeowners Ass’n, Inc. v.
Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009) (citations
omitted); see also Johnson v. Big Lots Stores, Inc., 2008 WL 1930681, *14 (E.D .La.
Apr. 29, 2008) (summarizing Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507 n.
10 (5th Cir. 1999), as “explaining that after an individual satisfies the relatively low
threshold for qualification, the depth of one’s qualification may be the subject of
vigorous cross-examination”); see also Martinez v. Altec Indus., Inc., 2005 WL
1862677, *3 (M.D. Fla. Aug. 3, 2005) (quoting Rushing, 185 F.3d at 507 (“As long as
some reasonable indication of qualifications is adduced . . . qualifications become an
issue for the trier of fact rather than for the court in its gate-keeping capacity”)).
After a review of the relevant issues and an expert’s qualifications, “the
determination regarding qualification to testify rests within the district court’s
discretion.” Clena Investments, Inc., 280 F.R.D. at 661 (citing Berdeaux v. Gamble
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Alden Life Ins. Co., 528 F.2d 987, 990 (5th Cir. 1976) (footnote omitted)).
Defendant’s position is that Mr. Jaques has conceded that he is unqualified to
render an expert opinion on the Decedent’s level of intoxication at trial. Defendant
notes that Mr. Jaques only has a law enforcement background and has merely served
as a security officer on cruise ships. Hence, Defendant argues that Mr. Jaques has
no experience in toxicology, responsible alcohol vending policies, nor medicine.
Despite this lack of expertise, Mr. Jaques purportedly intends to opine on whether
Defendant breached many of its internal policies and procedures and whether the
Decedent was “grossly intoxicated” on the night of the incident. Because Mr. Jaques
has only claimed to have expertise in detecting intoxicated persons in the field during
his time as a police officer, he is allegedly unqualified as an expert witness in this
case.
Plaintiff disputes Defendant’s contention that Mr. Jaques is unqualified.
Plaintiff contends that Mr. Jaques is expected to testify at trial, inter alia, that
Defendant’s failure to identify, observe and protect an overly-intoxicated passenger,
as well as Defendant’s failure to adhere to its own policies, procedures and SMS
regarding the responsible service and sale of alcohol to passengers. In addition, Mr.
Jaques is expected to testify regarding Defendant’s crewmembers’ failure to adhere
to the training under STCW-95.

Finally, Plaintiff contends that Mr. Jaques is

expected to testify regarding the Decedent’s level of intoxication on the night prior to
the Decedent’s passing because they are purportedly well within Mr. Jaques’
expertise in marine safety and alcohol recognition.
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However, Plaintiff’s arguments are unpersuasive because Mr. Jaques’
opinions and testimony are tethered to a toxicology report that found the Decedent’s
blood-alcohol concentration was .369 on the night of his death. Mr. Jaques testified
that he is qualified to “give opinions regarding [the Decedent’s] actual level of
intoxication,” even though he concedes that he is not a toxicologist. [D.E. 53-2 at
73].

And while Mr. Jaques claims to be an expert in “recognizing the level of

intoxication of individuals in the field” due to his law enforcement background where
he observed and arrested people for driving under the influence, see id. at 72, he
obviously did not physically observe the Decedent in this case to know his level of
intoxication. See id. at 73. Mr. Jaques also testified that he does not know how
much alcohol the Decedent consumed other than a “tremendous amount” (which Mr.
Jaques defines as “way too much”), see id. at 76, and could only approximate that the
Decedent may have had “six, seven, eight, nine drinks.” See id. at 76.
The problems with Mr. Jaques’ testimony continue with respect to him being
uncertain of (1) when the Decedent began to drink on the day of the incident, see id.
at 76, (2) how the Decedent could have metabolized alcohol based on his weight and
the time period in which he allegedly drank the alcohol, see id. at 77-78, and (3) how
much alcohol was actually served in the Decedent’s drinks. See id. at 89. Based on
Mr. Jaques’ deposition testimony, it is abundantly clear that he does not have the
requisite qualifications to opine with any level of expertise on Decedent’s level of
intoxication in this case, aside from the fact that the Decedent consumed “too much”
alcohol. None of Mr. Jaques’ statements are scientific in any way and while Mr.
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Jaques argues he has an extensive background in law enforcement and security, he
never explains how this qualifies him to opine on the intoxication of the Decedent –
particularly when Mr. Jaques was not onboard the cruise ship at the time of the
Decedent’s death. Because Mr. Jaques has no experience in toxicology, responsible
alcohol vending policies, nor medicine, and has never served onboard the California
Dream, he is unqualified to opine on the Decedent’s level of intoxication and to this
extent, Defendant’s Motion is GRANTED.
C.

Methodology

Defendant’s final argument is that Mr. Jaques’ opinions and testimony are
inadmissible because they are not supported by any reliable methodology and fail to
rely on a single study, article, or authority as support. “The reliability standard is
established by Rule 702’s requirement that an expert’s testimony pertain to
‘scientific . . . knowledge,’ since the adjective ‘scientific’ implies a grounding in
science’s methods and procedures, while the word ‘knowledge’ connotes a body of
known facts or of ideas inferred from such facts or accepted as true on good grounds.”
Daubert, 509 U.S. at 580. This entails an assessment of whether the “methodology
underlying the testimony is scientifically valid.”

Id. at 592.

The four

non-exhaustive factors used to evaluate the reliability of a scientific expert opinion
include:
(1) whether the expert’s theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of the particular scientific technique;
and (4) whether the technique is generally accepted in the scientific

17

community.
Frazier, 387 F.3d at 1262 (citations omitted).
Here, Defendant argues that Mr. Jaques’ experience fails to provide “sufficient
foundation rendering reliable any conceivable opinion the expert may express.”
Frazier, 387 F.3d at 1262 (emphasis in original). As support, Defendant relies on
Farley v. Oceania Cruises, Inc., 2015 WL 1131015, at *1 (S.D. Fla. Mar. 12, 2015).
In Farley, Judge O’Sullivan struck Mr. Jaques as an expert witness where he sought
to provide maritime liability and safety opinions regarding “safety issues and the
applicable standards of care and policies and procedures in the cruise ship industry
for maintaining clear passageways for the safety of passengers and crew members
and to opine regarding the cause of [the p]laintiff’s fall . . . .” Id. Mr. Jaques opined
that the cruise line was “careless and negligent” and that the cruise line was “at
fault” for the passenger’s injury.

Id.

The Court found that Mr. Jaques’

methodology failed for several reasons because (1) “Mr. Jaques failed to inspect the
vessel where the accident took place or interview any crew members,” (2) “[h]e d[id]
not cite to any publications or experiments to support his opinions with respect to
lounge chair safety,” and (3) “d[id] not provide a detailed explanation of how his
experience supports his opinions or what materials he consulted (other than the
policies and procedures of competitor cruise line operators) to reach his conclusions.”
Id. at *8.
Plaintiff argues in response that, contrary to Defendant’s contentions, Mr.
Jaques’ methodology relied on more than his own experience and training, including:
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(1) a video of the incident, (2) the deposition of Plaintiff, (3) bartender duties, (4) a
deck log, and (5) a plethora of other materials.

Plaintiff also takes issue with

Defendant’s suggestion that Mr. Jaques’ experience cannot serve as the basis for his
expert opinion. Plaintiff argues that Mr. Jaques supports each opinion with, not
only his extensive experience and training, but with many items that distinguish
Defendant’s cases that suggest his expert opinion is inadmissible.
After full consideration of the parties’ arguments, Mr. Jaques’ methodology
suffers from many of the same deficiencies identified in Farley. His expert report
simply lists a number of conclusory statements without any foundation. He does not
demonstrate whether he performed any analysis nor does he indicate whether his
opinions were subject to any verification or peer review, or how his experience
specifically informed his opinions. Neither his report nor his testimony references a
single study, article, or authority to support his opinions. See Johnson v. Carnival
Corp., No. 07-20147-Civ-UNGARO (finding that “Plaintiff’s assertions fall far short
of demonstrating how Jaques’ experience leads to his conclusions and opinions, why
his experience is a sufficient basis for his opinions, and how his experience is reliably
applied to the facts of Plaintiff’s case.”) (citations omitted).
The advisory committee notes for Rule 702 further illustrate how Mr. Jaques’
reliance on his experience, and the various items mentioned in Plaintiff’s response,
fail to satisfy the reliability prong of Daubert:
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
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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.’
Sorrels v. NCL (Bahamas) Ltd., 2013 WL 6271522, at *6 (S.D. Fla. Dec.4, 2013)
(quoting Fed. R. Evid. 702 advisory committee notes (2000 amends.) (emphasis
added)).

Most of Mr. Jaques’ opinions and testimony are not “tethered to any

supporting materials or sources” as there are no studies, peer-reviewed materials,
treatises, sources, data nor anything else underlying his views. Farley, 2015 WL
1131015, at *7.

Instead, his opinions are conclusory statements regarding

Defendant’s fault that is not tied to any methodology. Moreover, Mr. Jaques does
not explain why the items he relied upon – in addition to his experience – provide a
sufficient basis for his opinion, especially in light of the fact that they merely lead to
legal conclusions. For the reasons stated above, Mr. Jaques’ methodology does not
satisfy Daubert and Defendant’s Motion on this basis must be GRANTED.
IV.

CONCLUSION

For the reasons stated above, it is hereby ORDERED AND ADJUDGED
that Defendant’s Daubert Motion to Strike Plaintiff’s expert witness Randall Jaques.
[D.E. 53] is GRANTED in part and DENIED in part.

Plaintiff’s expert witness,

Mr. Jaques, shall only be permitted to testify about (1) the Defendant’s policies and
procedures that were in place to prevent the over service of alcohol to customers, (2)
the Defendant’s procedures for what to do in the event of dealing with an intoxicated
passenger, (3) the required training on cruise ships and how crew members spot
human behavior problems stemming from intoxication, and (4) maritime regulations
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that correlate with the details of this case.
DONE AND ORDERED in Chambers at Miami, Florida this 6th day of July,
2017.3

/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

Plaintiff did not request a Daubert hearing on Defendant’s Motion.
Therefore, the Court is adjudicating the Motion solely on the record presented.
3

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