Siplin v. Carnival Corporation

Filing 54

ORDER granting in part and denying in part 43 Plaintiff's Motion in Limine. Signed by Magistrate Judge Edwin G. Torres on 7/17/2018. See attached document for full details. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-Civ-23741-WILLIAMS/TORRES
ZELMA SIPLIN,
Plaintiff,
v.
CARNIVAL CORPORATION,
Defendant.
______________________________________/
ORDER ON PLAINTIFF’S MOTION IN LIMINE
This matter is before the Court on Zelma Siplin’s (“Plaintiff”) motion in
limine against Carnival Corporation (“Defendant”).

[D.E. 43].

Defendant

responded to Plaintiff’s motion on June 25, 2018. [D.E. 53] to which Plaintiff did
not reply. Therefore, Plaintiff’s motion in limine is now ripe for disposition. After
careful consideration of the motion, response, relevant authority, and for the
reasons discussed below, Plaintiff’s motion is GRANTED in part and DENIED in
part.
I.

APPLICABLE LEGAL PRINCIPLES AND LAW

The purpose of a motion in limine is to aid the trial process by enabling the
Court to rule in advance of trial on the relevance of certain forecasted evidence, as
to issues that are definitely set for trial, without lengthy argument at, or
interruption of, the trial.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp.
2d 173, 176 (S.D.N.Y. 2008) (citing Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.
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1996)). Under the Federal Rules of Evidence, evidence is considered relevant as
long as it has the tendency to make a fact of consequence more or less probable. See
Fed. R. Evid. 401(a)-(b). The Rules permit the exclusion of relevant evidence when
the probative value is substantially outweighed by danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, and/or
needlessly presenting cumulative evidence. Fed. R. Evid. 403 (emphasis added).
Courts are cautioned to use Rule 403 sparingly, see, e.g., United States v. King, 713
F.2d 627, 631 (1983), in part because the federal rules favor admission of evidence
and in part because relevant evidence is inherently prejudicial to a criminal
defendant. See id. (citing to other sources).
The term Aunfair prejudice@ in and of itself speaks to the ability of a piece of
relevant evidence to lure the fact finder into declaring a defendant=s guilt on
grounds other than specific proof of the offense charged. Old Chief v. United States,
519 U.S. 172, 180 (1997). It also signifies an undue tendency to suggest guilt on an
improper basis, commonly an emotional one. See id.

In the context of a Rule 403

balancing test, the more essential the piece of evidence is to a case, the higher its
probative value; the higher a piece of evidence=s probative value, the less likely it
should be excluded on 403 grounds. See King, 713 F.2d at 631.
Rule 404(b) provides that while evidence of a defendant=s other crimes,
wrongs, or acts is inadmissible to prove a defendant=s actions conform with his
character, such evidence may be admitted for other purposes such as Aproof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
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mistake or accident.@

Fed. R. Evid. 404(b).

Essentially, Rule 404(b) Aprotects

against the introduction of extrinsic act evidence when that evidence is offered
solely to prove character.@ Huddleston v. United States, 485 U.S. 681, 687 (1988).
For evidence of other crimes or acts to be admissible under Rule 404(b), (1) the
evidence must be relevant to an issue other than defendant=s character, (2) there
must be sufficient proof to enable a jury to find by a preponderance of the evidence
that the defendant committed the extrinsic act(s) in question, and (3) the probative
value of the evidence cannot be substantially outweighed by undue prejudice. See,
e.g., United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000). The evidence
must also pass a 403 balancing test. Id. To meet the second prong of the three-part
test above, the movant need only make a sufficient showing under which a jury
could believe the act actually happened. See generally Huddleston, 485 U.S. 681.
Evidence falls outside the scope of Rule 404(b) when it is (1) an uncharged
offense that arose out of the same transaction or series of transactions as the
charged offense, (2) necessary to complete the story of the crime, or (3) inextricably
intertwined with the evidence regarding the charged offense.

United States v.

Baker, 432 F.3d 1189, 1205 n.9 (11th Cir. 2005) (quoting another source).
Evidence not part of the crime charged but [that] pertain[s] to the
chain of events explaining the context, motive[,] and set-up of the
crime, is properly admitted if linked in time and circumstances with
the charged crime . . . forms an integral and natural part of an account
of the crime, or is necessary to complete the story of the crime for the
jury.
United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998). Such evidence must
also still satisfy the requirements of Rule 403. See Baker, 432 F.3d at 1189.
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II.
A.

ANALYSIS

Whether Testimony Should be Precluded for Failure to Produce
a 30(b)(6) Deponent on all Areas of Inquiry

Plaintiff’s motion aims to exclude questioning, testimony, evidence or
argument regarding six areas of inquiry. First, Plaintiff claims that certain topics
that Plaintiff noticed pursuant to Rule 30(b)(6) should be excluded because
Defendant failed to produce a corporate representative that was knowledgeable on
all topics. The outstanding areas of inquiry at issue are nos. 19, 39, 30, and 57 – all
of which relate to Defendant’s policies and procedures regarding the maintenance,
cleaning, inspection, repair, replacement, and upkeep applicable to the tile floor of
the vessel where Plaintiff fell. Plaintiff alleges that Defendant failed to advise that
its initial 30(b)(6) deponent, Ms. Monica Petisco, was unprepared to testify on all
areas of the notice until the morning of the deposition. Because Defendant failed to
meet its burden of producing a corporate representative to testify on all areas of
inquiry that Plaintiff noticed under Rule 30(b)(6), Plaintiff concludes that
Defendant should be precluded from presenting testimony on the areas that it did
not produce a corporate representative. 1 See QBE Ins. Corp. v. Jorda Enterprises,
Inc., 277 F.R.D. 676, 688 (S.D. Fla. 2012) (citations omitted).
In response, Defendant argues that Plaintiff’s motion is misplaced because
Defendant sent Plaintiff an email dated March 16, 2018 to notify Plaintiff that Ms.
Monica Petisco did not have knowledge of all areas in Plaintiff’s deposition notice –

Plaintiff’s March 5, 2018 deposition notice referenced sixty designated areas
of inquiry as well as sixty references for a production of documents.
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specifically areas 19, 39, 40, and 57. 2 In the same e-mail, Defendant also advised
Plaintiff that “[i]t will be incumbent upon the [Defendant] to produce the
appropriate individual to testify as to areas 19, 39, 40, and 57. [D.E. 43-3]. Ms.
Monica Petisco’s deposition was continued twice and completed on April 24, 2018.
Plaintiff then requested an opportunity to depose the Director of
Occupational Safety, Mr. Dominguez, and noticed it for Thursday, May 17, 2018 –
eight days prior to the discovery cut-off date. Defendant claims, at no time during
the nearly three week period leading up to Mr. Dominguez’s deposition, were there
any conversations between the parties on a supplemental corporate representative
deposition. At the time of Mr. Dominguez’s deposition, Defendant advised Plaintiff
that the deponent was not being presented as a corporate representative. [D.E. 532].

After the deposition concluded, Defendant claims that there were no

conversations between the parties on a corporate representative to testify on the
remaining areas of inquiry. Defendant also suggests that Plaintiff’s motion lacks
merit because Plaintiff was clearly aware that the initially produced corporate
representative would not be presented to testify on all the topics in the deposition
notice.

Therefore, Defendant concludes that Plaintiff’s motion must be denied

because (1) the parties failed to address the matter prior to the discovery cut off,
and (2) Plaintiff will not suffer any prejudice if the testimony relating the subject
areas is provided at trial.

2

The discovery deadline in this case passed on May 25, 2018.
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A party “may depose, any person, including a party, without leave of court
except as provided in Rule 30(a)(2).” Fed. R. Civ. P. 30(a)(1). If a party names a
private corporation as the deponent, the named corporation “must designate one or
more officers, directors, or managing agents, or designate other persons who
consent to testify on its behalf.” Fed. R. Civ. P. 30(b)(6). The persons designated
“must

testify

about

information

known

or

reasonably

available

to

the

organization.” Fed. R. Civ. P. 30(b)(6). “The party seeking discovery must describe
the matters with reasonable particularity and the responding corporation or entity
must produce one or more witnesses who can testify about the corporation's
knowledge of the noticed topics.” QBE Ins. Corp., 277 F.R.D. at 688 (citation
omitted).
It is well established that “[t]he designating party has a duty to designate
more than one deponent if necessary to respond to questions on all relevant areas of
inquiry listed in the notice.” Id. (citation omitted). A party’s failure to comply with
its Rule 30(b)(6) obligations exposes it to various sanctions, including imposition of
costs, preclusion of testimony, and entry of default.

See id. at 690; see

also Sciarretta v. Lincoln Nat. Life Ins. Co., 778 F.3d 1205, 1213 (11th Cir.
2015) (discussing the court’s inherent power to impose sanctions sua sponte upon a
finding of bad faith in meeting Rule 30(b)(6) obligations). Additionally, a party’s
failure to properly designate a Rule 30(b)(6) witness can be viewed as nonappearance by that party, thus justifying the imposition of sanctions against it.
However, simply because a designee cannot answer every question on a certain
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topic does not necessarily mean that the corporation failed to meet its Rule
30(b)(6) obligation. QBE Ins. Corp., 277 F.R.D. at 691.
Here, the issue is whether any testimony that Defendant’s corporate
representative would have testified to with respect to the outstanding areas of
inquiry in the deposition notice should be precluded at trial.

It is true that Ms.

Petisco was unable to respond to every single one of the areas of inquiry in
Plaintiff’s deposition notice. But, Plaintiff is not entitled to relief. In the first place,
to the extent a discovery violation arose Plaintiff waived it by sitting idly by while
weeks passed and the discovery deadline passed without doing anything – such as
seeking a motion to compel another corporate representative for a deposition. The
failure to timely seek relief under Rule 37 constitutes a waiver of the right to
sanction a party from that alleged violation.

Local Rule 26.1(g)(1) provides in

material part that “all disputes related to discovery shall be presented to the Court .
. . within (30) days from the . . . date on which a party first learned of or should have
learned of a purported deficiency concerning the production of discovery materials.
Failure to present the dispute to the Court within that timeframe, absent a showing
of good cause for the delay, may constitute a waiver of the relief sought at the
Court's discretion.” This Rule “reflects a policy of promoting the prompt resolution
of discovery disputes by requiring the parties to timely bring to the Court’s
attention matters that the parties cannot resolve amongst themselves.” Kendall
Lakes Towers Condo. Ass’n, Inc. v. Pac. Ins. Co., 2011 WL 6190160, at *2 (S.D. Fla.
Dec. 2, 2011).
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So Plaintiff failed to file a timely request for relief prior to the discovery
cutoff, when she was on notice of the alleged discovery violation, or at least
immediately thereafter. Plaintiff thus waived any right to complain about it now in
an untimely motion for sanctions masquerading as a motion in limine.
Second, apart from that procedural failure, it is not altogether clear that the
motion would have granted relief had it been timely sought. Plaintiff’s notice was
quite extensive and voluminous. Sixty deposition topics seems quite over-the-top
and cumulative in the context of this straightforward case.

Moreover, Plaintiff

consumed much deposition time with the deponent on the topics she did know
about. Thus a motion to compel may have been rebuffed on the grounds that Rule
26 did not entitle Plaintiff to cumulative or unreasonable discovery that was not
proportional to the needs of this case. The Court’s review of the record shows that
Defendant materially complied with its discovery obligations and Plaintiff obtained
substantial discovery to prepare her case.
In short, Plaintiff waived her right to compel another 30(b)(6) deposition – to
the extent she was entitled to that relief notwithstanding Rule 26(c) – because she
did nothing for several weeks while the discovery deadline passed. Because
discovery is now closed, Plaintiff’s motion in limine to preclude Defendant from
presenting testimony on areas where Defendant failed to produce a corporate
representative is DENIED.

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B.

Whether Mr. Dominguez’s Testimony Should be Precluded

At the deposition of Mr. Dominguez (Defendant’s safety department
manager), he testified that Carnival uses a coefficient of friction (“COF”) of 0.42 as
its applicable safety standard when conducting annual tests of its tile floors –
specifically the tile floor that Plaintiff slipped on in this case. Plaintiff argues that
Mr. Dominguez was never disclosed as an expert in this case and that the COF for
flooring material is only within the realm of a qualified expert. Plaintiff also claims
that Mr. Dominguez has no personal knowledge of the applicable COF standard and
that he failed to identify any documentation in support of his position that
Defendant uses 0.42 as its COF. Finally, Plaintiff suggests that Mr. Dominguez’s
0.42 COF standard is (1) unsubstantiated, (2) unauthenticated, (3) unduly
prejudicial, (4) constitutes pure hearsay, and (5) assumes facts not in evidence.
Because Mr. Dominguez is neither a qualified expert nor has the requisite personal
knowledge to testify as to the applicable COF standard, Plaintiff concludes that his
testimony on the 0.42 COF standard in relation to Defendant’s floors must be
excluded.
Plaintiff’s arguments are certainly viable with respect to the credibility of Mr.
Dominguez, but we are unconvinced that they warrant a wholesale exclusion of his
testimony as to the applicable COF used to test Defendant’s floors.

While Mr.

Dominguez is admittedly not an expert in this case, his work as a supervisor gives
him personal knowledge of Defendant’s policies that are responsible for the
prevention of accidents aboard Defendant’s vessels. And in that capacity, he does
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have personal knowledge as a lay witness of the standards in place for safety
inspections of the floor used throughout Defendant’s vessels.
Plaintiff suggests that Mr. Dominguez cannot testify as a lay witness on this
issue because his testimony constitutes knowledge that is scientific, technical, or
specialized. See, e.g., Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193–94
(11th Cir. 2011) (“A qualified expert who uses reliable testing methodology may
testify as to the safety of a defendant’s choice of flooring, determined by the
surface’s coefficient of friction.”) (citing Great Am. Ins. Co. v. Cutrer, 298 F.2d 79,
80–81 (5th Cir. 1962) (noting that both the plaintiff and defendant presented expert
evidence about the coefficient of friction on the steps and sidewalk where the
plaintiff slipped and fell); Santos v. Posadas De Puerto Rico Assocs., Inc., 452 F.3d
59, 63–64 (1st Cir. 2006) (approving the admission of expert testimony regarding
the variable friction between the pool steps and their edges on the grounds that it
was crucial to the plaintiff's theory of the case)). If Mr. Dominguez wanted to testify
on the methodology of the COF, the safety of the floor, and its slipperiness, that
testimony would certainly require an expert witness. But, mere knowledge of a
COF does not by itself go beyond the personal knowledge of a lay witness.
Therefore, Plaintiff’s motion to preclude Mr. Dominguez’s testimony on the COF
standard used aboard Defendant’s vessels is DENIED.

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C.

Whether Testimony Should be Precluded on Letters
Protection or Any Physician/Law Firm Relationship

of

Plaintiff’s third argument anticipates that Defendant will attempt to argue at
trial (1) that her treating physicians use letters of protection 3, (2) that her attorneys
referred her to certain physicians, and (3) that a relationship existed between her
attorneys and her treating physicians. While Plaintiff testified that she might have
signed an agreement with one of her treating physicians, no letter of protection was
requested or produced in this case. Plaintiff also contends that Defendant has no
written letter in its possession and that Defendant failed to depose Plaintiff’s
treating physician on this issue. Because questions on these topics are protected
under the attorney-client privilege, Plaintiff concludes that Defendant should be
precluded from raising these issues at trial because the Florida Supreme Court’s
decision in Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 26
(Fla. 2017), forecloses that line of inquiry.
In Worley, the issue before the Florida Supreme Court was “whether the
attorney-client privilege protects a plaintiff from disclosing that an attorney
referred him or her to a doctor for treatment, or a law firm from producing
documents related to a possible referral relationship between the firm and its
“A letter of protection is a document sent by an attorney on a client’s behalf to
a health-care provider when the client needs medical treatment, but does not have
insurance. Generally, the letter states that the client is involved in a court case and
seeks an agreement from the medical provider to treat the client in exchange for
deferred payment of the provider’s bill from the proceeds of [a] settlement or award;
and typically, if the client does not obtain a favorable recovery, the client is still
liable to pay the provider’s bills.” Caroline C. Pace, Tort Recovery for Medicare
Beneficiaries: Procedures, Pitfalls and Potential Values, 49 Hous. Law. 24, 27
(2012).
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3

client's treating physicians.” Id. at 22. The Florida Supreme Court held that both
were protected under the attorney-client privilege.
However, Plaintiff’s reliance on Worley is misplaced because Defendant
merely seeks to impeach the credibility of Plaintiff’s physicians on bias, and to
inquire whether the treating physician has knowledge of a letter of protection that
may demonstrate whether the physician has an interest in the outcome of the
litigation. The Florida Supreme Court explicitly held that this line of inquiry is
allowed for the limited purpose of impeachment:
We recognize that the evidence code allows a party to attack a
witness’s credibility based on bias. § 90.608(2), Fla. Stat. (2015). We
also agree that ‘a treating physician, like any other witness, is subject
to impeachment based on bias.’ However, bias on the part of the
treating physician can be established by providing evidence of a letter
of protection (LOP) which may demonstrate that the physician has an
interest in the outcome of the litigation. In the instant, Worley was
treated by all of her specialists pursuant to letters of protection. Bias
may also be established by providing evidence that the physician’s
practice was based entirely on patients treated pursuant to LOPs, as
was found in the instant case. Specifically, a Sea Spine employee
testified during depositions that at the time of Worley’s treatment, its
entire practice was based on patients treated pursuant to LOPs.
Additionally, medical bills that are higher than normal can be
presented to dispute the physician’s testimony regarding the necessity
of treatment and the appropriate amount of damages.
Worley, 228 So. 3d at 23–24. Because Worley allows Defendant to challenge the
credibility of Plaintiff’s treating physician for the limited purpose of impeachment
and to inquire whether the treating physician’s practice is based on letters of
protection,

Plaintiff’s motion in limine is DENIED but only based on the Court’s

understanding that this evidence would be admitted only as impeachment evidence.

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To the extent that Defendant intended to introduce this evidence as part of its case
in chief, Plaintiff would be entitled to strike that testimony at trial under Worley.
D.

Whether Dr. Zollo’s Involvement in Prior Cases Should be
Precluded

Next, Plaintiff seeks to preclude Defendant from referencing other cases
where Dr. Zollo was retained, proffered testimony, or was subjected to a Daubert
challenge. Plaintiff argues, citing Florida evidentiary cases that are not directly
binding here, that these are collateral matters that will confuse the the jury and
place Dr. Zollo on trial. See Cruse v. State, 588 So. 2d 983, 988 (Fla. 1991) (“If such
inquiry were permissible, every trial involving expert testimony could quickly turn
into a battle over the merits of prior opinions by those experts in previous cases,
malpractice suits filed against them, and Department of Professional Regulation
allegations.”). Therefore, Plaintiff concludes that Defendant should be precluded
from raising any collateral matters with Dr. Zollo at trial.
Plaintiff’s argument has support because impeachment on collateral matters
under the Federal Evidence Code is also generally impermissible. See United States
v. Herzberg, 558 F.2d 1219, 1223 (5th Cir. 1977) (“Prior wrongful acts not resulting
in a criminal conviction ordinarily are ‘collateral matters.’ ”). Arguably an expert’s
exclusion in another case is a “wrongful act” in a sense and thus is really collateral
to the issues in this particular case. There is, however, an exception to this general
rule if the witness on direct was asked about other cases. If a collateral topic – such
as a witness’s qualification as an expert in another case – is introduced in her direct
examination, the federal rule allows for impeachment evidence to come in on
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collateral matters so long as extrinsic evidence is not introduced to further the
point. See, e.g., United States v. Kohli, 847 F.3d 483, 493 (7th Cir. 2017) (“the rule
is implicated only when a party presents ‘extrinsic evidence’ that a witness’s
testimony is incorrect.”).
Defendant – in a two sentence response – has presented no compelling reason
for seeking to reference Dr. Zollo’s prior Daubert challenges for the purposes of bias,
corruption, or lack of competency.

Defendant merely concludes that Dr. Zollo’s

testimony would be consistent with the parameters for expert testimony in Rule 702
of the Federal Rules of Evidence. Defendant would have to do more to convince the
Court that the expert’s participation is worthy of impeachment in this case under
Rule 608. Just because an expert was subject to a successful Daubert challenge, by
itself, is too remote and prejudicial to permit without knowing specifically what the
basis of the challenge was. And, we do not know the extent to which Plaintiff will
rely upon the expert’s experience in other cases in direct examination. Obviously, if
Plaintiff indepthly delves into the expert’s litigation experience, the door will be
opened for appropriate impeachment based on other similar past experience that
contradict the expert’s self-aggrandizing testimony.
Accordingly, Plaintiff’s motion in limine to preclude Defendant from
referencing any cases where Dr. Zollo was retained, proffered testimony, or was
subjected to a Daubert challenge is GRANTED but with leave to renew at trial if
Defendant can show the trial judge that Plaintiff has sufficiently opened the door to
collateral evidence of other cases in which the expert testified.
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In so doing,

Defendant would have to show why the expert was excluded that relates to the
expert’s truthfulness or competence and not just that a successful Daubert challenge
was raised involving that expert.
E.

Whether Dr. Rangan’s Testimony Should be Precluded

At a deposition, Defendant’s shipboard physician, Dr. Rangan, testified that
signs of pain are increased heart rate and blood pressure, and that Plaintiff did not
have either of these symptoms after her slip and fall. Dr. Rangan also testified that
she did not believe Plaintiff would develop soreness in other areas of her body after
more than a day following the incident.

Plaintiff suggests that Dr. Rangan’s

testimony is improper because it assumes that Plaintiff was faking her injuries.
Because it is the function of the jury to weigh Plaintiff’s credibility, Plaintiff
concludes that Defendant should be precluded from introducing this testimony at
trial.
Plaintiff’s argument is wholly unpersuasive because Dr. Rangan’s testimony
merely constitutes her observations, findings, and conclusions with respect to
Plaintiff’s medical status after she fell. And it goes to Dr. Rangan’s state of mind at
the time of the injury in addressing the injured Plaintiff’s complaints. Plaintiff has
presented no viable argument on why this testimony should be precluded other
than it might undermine Plaintiff’s alleged injuries.

Because Dr. Rangan’s

testimony is relevant and leaves the truthfulness and credibility determinations to
the jury, Plaintiff’s motion in limine is DENIED. Plaintiff can, of course, seek a
limiting instruction at the time to the extent that Defendant is trying to overplay its
15

hand by inferring that Dr. Rangan should be treated as an expert in the case and
allowed to render an opinion on the ultimate issue.
F.

Whether Testimony on Dr. Zollo’s Methodology Should be
Precluded

Plaintiff’s final request is to exclude testimony relating to any disavowal in
the scientific community of the “XL Tribometer” that Plaintiff’s expert, Dr. Zollo,
used to test the floor surface of Defendant’s vessel and to render opinions relating to
its slipperiness. Near the end of Ms. Monica Petisco’s deposition, defense counsel
asked her if she was aware that the “XL Tribometer” had been disavowed in the
scientific community. While Ms. Petisco did not know the answer to this question,
Plaintiff anticipates that Defendant will attempt to introduce similar testimony at
trial. Plaintiff suggests that Defendant has no expert witness to introduce this
testimony and that it would lack a proper foundation. For these reasons, Plaintiff
concludes that Defendant should be precluded from making any argument that Dr.
Zollo’s tools used in this case have been disavowed in the scientific community.
Rule 702 of the Federal Rules of Evidence allows “a witness qualified as an
expert by knowledge, skill, experience, training, or education” to testify “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,”
provided that the “scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue.” In Daubert
v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the Supreme Court “assign[ed] to
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the trial judge the task of ensuring that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand.” Id. at 597.
Faced with a proffer of expert scientific testimony, then, the trial judge must
determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to
testify to (1) scientific knowledge that (2) will assist the trier of fact to understand
or determine a fact in issue. This entails 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.
Id. at 592 (footnotes omitted).

Thus, for proffered expert testimony to be

admissible, a court must determine that:
(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 v. Harcros Chem., Inc., 158 F.3d 548, 562 (11th Cir. 1998). But
while “[t]he judge’s role is to keep unreliable and irrelevant information from the
jury,” it “is not intended to supplant the adversary system or the role of the
jury.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311–12 (11th Cir. 1999). The
admissibility standard is a liberal one, United States v. Hankey, 203 F.3d 1160,
1168 (9th Cir. 2000), and “[a] review of the caselaw after Daubert shows that the
rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid.
702 advisory committee notes, 2000 amendments.
17

Plaintiff’s motion is well taken because Defendant has no expert to provide
rebuttal testimony to Dr. Zollo’s scientific methods in testing the slipperiness of the
floor on Defendant’s vessel. On June 5, 2018, we struck Defendant’s expert because
it failed to establish good cause for its failure to comply with the Court’s Scheduling
Order. [D.E. 42]. We acknowledged that untimely expert disclosures may in some
circumstances be excused depending on the length of the delay, but that motions to
strike have routinely been granted in cases involving a two month delay. See, e.g.,
Ballard v. Krystal Restaurant, 2005 WL 2653972 (M.D. Ala. Oct. 17, 2005) (granting
defendant’s motion to strike because plaintiff waited two and a half months to
disclose its expert); White, 211 F.R.D. at 670 (granting defendants’ motion to strike
because plaintiff disclosed an expert witness seven weeks late).

We therefore

concluded that Defendant’s failure to timely disclose its expert was not
substantially justified and that Defendant would not be allowed to rely on the
opinion of Dr. Sinnreich or any of his expert testimony for the purposes of this case.
Because Defendant has no expert witness in this case, there is no foundation
that can be established that would undermine Dr. Zollo’s scientific methods. And
any rebuttal testimony on the scientific methodology would also be outside the
purview of a lay witness.

Therefore, Plaintiff’s motion in limine to exclude

testimony in its case in chief that the XL Tribometer has been disavowed in the
scientific community is GRANTED. The motion is Denied, however, to the extent
that Plaintiff is seeking to preclude Defendant from questioning Dr. Zollo about the
reliability of that device or his knowledge of its acceptance or disavowal in the
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scientific community.

There is nothing improper about questioning the expert

himself as to his knowledge of this topic. To the extent that impeachment evidence
exists that can be used with the witness, this too could be utilized at trial. This
Order is limited to testimony or matters other than impeachment evidence.
III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s motion in limine [D.E. 43] is GRANTED in part and DENIED in part:
A. Plaintiff’s motion to preclude Defendant from presenting testimony on
areas where it failed to produce a corporate representative is DENIED.
B. Plaintiff’s motion to preclude Mr. Dominguez’s testimony on the COF
standard used aboard Defendant’s vessels is DENIED.
C. Plaintiff’s motion to preclude any testimony on letters of protection is
DENIED.
D. Plaintiff’s motion to preclude Defendant from referencing any cases where
Dr. Zollo was retained, proffered testimony, or was subjected to a Daubert
challenge is GRANTED but with leave to renew at trial if a sufficient
basis for impeachment on collateral matters exists.
E. Plaintiff’s motion to preclude the testimony of Dr. Rangan is DENIED.
F. Plaintiff’s motion to preclude testimony on whether the XL Tribometer
has been disavowed in the scientific community is GRANTED except
insofar as the issue is raised for impeachment purposes only.

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DONE AND ORDERED in Chambers at Miami, Florida, this 17th day of
July, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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