Scaccetti v. NCL (BAHAMAS) LTD
Filing
117
ORDER granting in part and denying in part 65 Plaintiff's Motion in Limine. Signed by Magistrate Judge Edwin G. Torres on 11/27/2018. See attached document for full details. (abu)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-23888-CIV-SCOLA/TORRES
DAWN SCACCETTI,
Plaintiff,
v.
NCL (BAHAMAS) LTD.,
Defendant.
________________________/
ORDER ON PLAINTIFF’S DAUBERT MOTION IN LIMINE
This matter is before the Court on Dawn Scaccetti’s (“Plaintiff”) Daubert
Motion in Limine to exclude NCL (Bahamas) Ltd.’s (“Defendant”) human factors
expert, Dr. Joseph Sala. [D.E. 65]. On October 4, 2018, Defendant responded to
Plaintiff’s Motion and Plaintiff replied on October 11, 2018. [D.E. 86, 91]. After careful
consideration of the record, the relevant authorities, and for the reasons discussed
below, Plaintiff’s Motion should be GRANTED in part and DENIED in part.
I.
BACKGROUND
On or about January 2, 2016, Plaintiff alleges that she was a passenger on
Defendant’s cruise ship, the Norwegian Star. Plaintiff was seriously injured when she
slipped and fell while descending an outdoor staircase between decks on the Star.
Plaintiff claims that Defendant (1) negligently designed and constructed the incident
staircase, (2) negligently failed to maintain the walking surfaces, and (3) negligently
failed to warn Plaintiff and other NCL passengers of the dangers of the wet surface.
As a result of Defendant’s negligence, Plaintiff states that she has suffered mental
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and physical pain, incurred medical expenses, lost the capacity for the enjoyment of
life, suffered a physical handicap, and aggravated preexisting injuries. Plaintiff
demands judgment against Defendant for damages, including prejudgment interest
and all damages allowable by law.
II.
LEGAL STANDARD
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 Rule 702 of the
Federal Rules of Evidence. Rule 702 provides that a witness is qualified to testify in
the form of an opinion if: (1) 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; (2) the testimony is based on sufficient facts or data; (3) the testimony is the
product of reliable principles and methods; and (4) the expert has reliably applied the
principles and methods to the facts of the case. Fed. R. Evid. 702.
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”).
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“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
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 gate keeper, the court’s duty is not “to 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).
In order to determine the admissibility of the expert testimony, district courts
engage in a three part inquiry:
(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. Harcos Chemicals, Inc., 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. Frazier, 287 F.3d at
1260. With this guidance in mind, we now turn to Plaintiff’s Motion.
III.
ANALYSIS
Plaintiff seeks to strike Defendant’s human factors expert, Dr. Joseph Sala. 1
Norwegian hired Dr. Sala as an expert to perform a human factors analysis of the
Plaintiff cites for support to an earlier case where the court excluded Dr. Sala
as an expert because of his unhelpful opinions, unreliable methodologies, and lack of
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incident that lead to Plaintiff’s injury and to assess the incident staircase. According
to the Motion, Plaintiff claims Dr. Sala should be precluded from testifying on three
of his four opinions because: (1) he in unqualified to render some of his opinions, (2)
his opinions are not based on a reliable methodology, (3) the opinions will not help
the jury, and (4) the opinions have the potential to confuse or mislead the jury.
Specifically, Plaintiff contends that Sala’s methodology simply consists of using the
facts of the case to “jump” to his conclusions, which are as follows:
The perceptual and visual cues of the wet surface of the stairs were
sufficient to have informed a reasonably alert and attentive pedestrian
descending the incident stairs of the wet conditions and need to alter
one’s gait and/or utilize the handrail during descent.
The handrails present at the incident stairway affords safe navigation;
the dimensions and placement of the handrails do not prevent their safe
usage. The handrails are functional and accommodates both grip and
support that would be appropriate to provide stability and/or arrest
oneself should a misstep occur during ascent or descent of the incident
stairs.
Intrinsic factors in the current instance, including medical and
physiological factors, are identified in the scientific literature as
contributory factors to accidental falls and can increase the risk of
falling.
Dr. Fore’s criticism of the “slip resistance” or coefficient of friction for
the landing at the bottom of the stairs and the placement of the “Watch
Your Step” signage are irrelevant and unrelated to the causation of this
incident.
qualifications. See Jacoby v. Wal-Mart Stores, Inc., No. 3:09-CV-903, at *9 (M.D. Pa.
June 10, 2010) [D.E. 74] (striking Dr. Sala as an expert because his conclusion would
not help the trier of fact and because he had no specialized knowledge of automatic
door maintenance); [D.E. 65-5]. Plaintiff concludes that the testimony proffered here
suffers from the same shortcomings and should similarly be stricken.
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Plaintiff leaves unchallenged the second opinion made by Dr. Sala, and so we will
address each argument raised in Plaintiff’s Motion concerning the first, third, and
fourth conclusions.
A.
Dr. Sala’s First Opinion
Plaintiff first contends that Dr. Sala did not apply a reliable methodology in
reaching the conclusions found in the first opinion, 2 and instead simply used
“undisputed facts from the plaintiff’s deposition” and “jumped to his conclusion” in
order to reach a favorable outcome for the cruise line. [D.E. 65, p. 5]. We disagree.
In determining the reliability of an expert’s opinion, we must consider:
(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.
Quiet Tech. DC-8, Inc., 326 F.3d at 1341. This list of factors does not exhaust the
different considerations that bear on the ultimate reliability of a proffered expert’s
opinion, id. (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999)), and
“[a] federal court should consider any additional factors that may advance is Rule 702
analysis.” Id. Indeed, whether the Daubert opinion factors “are even pertinent to
assessing reliability in a given case will [depend] on the nature of the issue, the
expert’s particular expertise, and the subject of his testimony.” United States v.
While the Motion challenges Dr. Sala’s qualifications, it does not do so with
regard to Dr. Sala’s first and second opinions.
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Brown, 415 F.3d 1257, 1267–68 (11th Cir. 2005) (“The decision in Kumho Tire
elaborated on the flexible nature of the inquiry.”).
This is not a hard science case that allows for a neat application of the Daubert
factors. This opinion, in particular, involves the offering of non-scientific, experiencebased testimony. Under these circumstances, other factors bearing on the proffered
expert’s testimony are far more relevant and useful, Frazier, 387 F.3d at 1262, and a
district court enjoys flexibility in utilizing those factors to conduct the reliability
analysis. Brown, 387 F.3d at 1262. As such, we must be satisfied that the witness has
appropriately explained how his experience led to the opinion reached, why that
experience provides a sufficient basis for the opinion, and how that experience is
reliably applied to the facts. See Ciera Investments, Inc. v. XL Specialty Ins. Co., 280
F.R.D. 653, 662 (S.D. Fla. 2012) (citing Brown, 415 F.3d at 1261).
After reviewing the report and the deposition of Dr. Sala, we are satisfied that
Dr. Sala is sufficiently qualified and reliable to offer the opinion concerning what a
“reasonably alert and attentive pedestrian” would have recognized in the situation.
We also find that he properly explained how his experience supports his ultimate
conclusion. [D.E. 65-2, p. 10–12]. In support of this opinion, Dr. Sala explained that
he: (1) published numerous peer-reviewed articles relating to balance recovery and
postural control on different surfaces; (2) worked on several projects related to his
opinion; and (3) consulted several peer reviewed articles before conducting a full
assessment of the facts presented by Plaintiff’s incident. [D.E. 86-2, 65-2, p. 10–11].
This is sufficiently reliable under Daubert to allow this opinion to reach a jury, and
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our decision in no way deprives Plaintiff of the opportunity to challenge any claimed
“weaknesses” presented by that opinion at trial. See Mclean v. 988011 Ontario Ltd.,
224 F.3d 797, 801 (6th Cir. 2000) (“[M]ere weaknesses in the factual basis of an expert
witness’ opinion bear on the weight of the evidence rather than on its admissibility.”)
(internal quotation omitted); Ostroski v. United States, 2007 WL 9701868, at *2 (S.D
Fla. Aug 23, 2007) (“Any claimed weaknesses in the factual basis for [an expert’s]
conclusion . . . goes at best to weight and credibility, and can certainly be explored on
cross examination.”).
Accordingly, Plaintiff’s Motion is DENIED as to Dr. Sala’s first opinion.
B.
Dr. Sala’s Third Opinion
Turning to Dr. Sala’s third expert opinion, the expert concludes that “intrinsic
factors” such as medical and physiological factors are identified in the scientific
literature as contributory factors to accidental falls and can increase the risk of
falling. Plaintiff asserts that because this opinion relates to the medical conditions
faced by Plaintiff, Dr. Sala is not qualified to render an opinion in this field or
interpret the literature because he is not a medical doctor, pharmacologist, or a
toxicologist. [D.E. 65, p. 5–6]. Further, Plaintiff asserts that the methodology relied
on by Dr. Sala was merely regurgitating the medical conditions Plaintiff experiences,
followed by surmising that the literature associates those conditions with falls and
near falls. Id. at 5. On both these points, we agree with Plaintiff.
As Dr. Sala explained in his deposition, there was no way for him to know if
any specific condition or factor contributed to Plaintiff’s fall. [D.E. 65-2, p. 17]. While
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Dr. Sala does point to specific literature used in reaching his second opinion, no
methodology was employed beyond a mere comparison of Plaintiff’s medical history
with factors the literature associates with certain types of falls. For example, Dr. Sala
admitted that he had not assigned a relative “risk” to each factor with regard to its
contribution to the fall at issue, nor did he know whether any specific factor was
operative in causing the incident in question. Id. Dr. Sala cannot merely review
Plaintiff’s medical history and then compare the conditions she experiences with
those associated with falls; he failed to expound on how he conducted this analysis
(beyond a mere comparison), and so his third opinion must be excluded. See UmanaFowler v. NCL (Bahamas) Ltd., 49 F. Supp. 3d 1120, 1123 (S.D. Fla. 2014) (finding
an expert’s opinion inadmissible when the expert “used the information he reviewed
. . . and ‘conducted an analysis’ of Plaintiff’s accident, but [did] not elaborate as to
how that analysis was conducted, how his experience informed that analysis, and
what steps he took to verify the results of his analysis.”).
Further, even if Dr. Sala had adopted an appropriate methodology, his opinion
would still be inadmissible because he is not qualified to render an opinion on medical
conditions: he is a human factors expert, not a medical doctor. We have found scant
authority for the proposition that would allow Dr. Sala to render such a quasi-medical
opinion, and as such, Plaintiff’s Motion is GRANTED as to Dr. Sala’s third
conclusion.
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C.
Dr. Sala’s Fourth Opinion
Plaintiff also seeks to exclude Dr. Sala’s fourth opinion, which consists of a
rebuttal attack on the expert report of Mr. Fore, Plaintiff’s retained engineer. Dr.
Sala concludes that Mr. Fore’s conclusion is irrelevant, yet Scaccetti contends that
Dr. Sala is not qualified to render this particular opinion, and that he is instead
merely offering a lawyer’s final argument. In moving to exclude this particular
opinion, Scaccetti also argues that the rebuttal of Mr. Fore’s opinion on the subject
would not be helpful to a jury. We disagree.
“[E]xpert testimony is admissible if it concerns matters that are beyond the
understanding of the average lay person.” Frazier, 387 F.3d at 1262–63 (citations
omitted). And Plaintiff is correct that such an opinion must also offer “more than
what lawyers for the parties can argue in closing arguments.” Id. 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, 49 F. Supp. 3d at
1122 (quoting United States v. Dealtorre, 308 F. App’x 380, 383 (11th Cir. 2009)).
We find Dr. Sala’s final opinion to be helpful – and not conclusory – because it,
in effect, challenges the conclusions drawn by Plaintiff’s own expert as to the location
of Ms. Scaccetti’s fall. As discussed in our Order on Defendant’s Motion that sought
to preclude Mr. Fore from testifying as to his opinion concerning the slip resistance
of the subject landing, the argument raised here amounts to a factual dispute over
where the actual incident took place. Defendant claims that the slip occurred on the
staircase; Plaintiff argues she suffered various “slips” at several points on and at the
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bottom of the stairs. The determination as to what really happened must be left to
the jury, but Plaintiff’s challenge here goes to weight, not admissibility. Just as we
found that Dr. Fore may testify as to his measurements concerning the slip resistance
on the landing, we find that Dr. Sala may offer his opinion as to why that should (or
should not) be relevant to Plaintiff’s incident, subject to Plaintiff’s counsel’s cross
examination. Jones v. Otis Elevator Co., 861 F.2d 655, 662-663 (11th Cir. 1988)
(“[W]eaknesses in the underpinnings of an expert’s opinion go to its weight rather
than its admissibility.”).
As such, Dr. Sala’s fourth opinion, which rebuts a particular conclusion
reached by Plaintiff’s expert, is admissible, and Plaintiff’s Motion as to this opinion
is DENIED.
III.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s Daubert
motion to exclude Dr. Sala’s testimony be GRANTED in part and DENIED in part.
DONE AND ORDERED in Chambers in Miami, Florida this 27th day of
November, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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