Holley v. Carnival Corporation

Filing 74

ORDER ON MOTION TO STRIKE/DAUBERT MOTION granting in part and denying in part 40 Motion to Strike 40 Defendant's MOTION to Strike Plaintiff's Expert WitnessDefendant's MOTION in Limine Daubert Motion to Exclude Plaintiff's Expert Witness ; granting in part and denying in part 40 Motion in Limine. Signed by Judge Beth Bloom on 11/17/2021. See attached document for full details. (drz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:20-cv-20495-BLOOM/Louis
ANTOINETTE HOLLEY (GAUNTLETT),
Plaintiff,
v.
CARNIVAL CORPORATION,
Defendant.
________________________________/
ORDER ON MOTION TO STRIKE/DAUBERT MOTION
THIS CAUSE is before the Court upon Defendant Carnival Corporation’s (“Defendant”)
Motion to Strike/Daubert Motion to Exclude Plaintiff’s Expert Witness, Frank A. Fore, ECF No.
[40] (“Motion”). Plaintiff Antoinette Holley (Gauntlett) (“Plaintiff”) filed a Response, ECF No.
[52] (“Response”), to which Defendant filed a Reply, ECF No. [57] (“Reply”). The Court has
carefully reviewed the Motion, the record in this case, the applicable law, and is otherwise fully
advised. For the reasons that follow, Defendant’s Motion is granted in part and denied in part
consistent with this Order.
I.

BACKGROUND
On February 3, 2020, Plaintiff initiated the instant action against Defendant for personal

injuries she sustained while onboard the Carnival Liberty. See ECF No. [1]. According to the
Complaint, Plaintiff was injured after she slipped and fell on a wet substance on the ship’s lido
deck “as a direct and proximate result of Defendant’s failure to reasonably maintain the lido deck
floor area[.]” Id. ¶ 10. The Complaint asserts a single count of maritime negligence against
Defendant. Id. ¶ 11.

Case No. 1:20-cv-20495-BLOOM/Louis
Plaintiff retained Frank Andrew Fore (“Mr. Fore”) to conduct an engineering analysis of
the area in question and to testify regarding the alleged dangerous conditions Defendant knew or
should have known about, additional precautionary measures Defendant failed to take that would
have prevented the alleged injury, and Defendant’s noncompliance with industry standards and
Defendant’s own internal policies. ECF Nos. [52] at 2, [40-1] at 28-30. In the Motion, Defendant
requests that the Court exclude Mr. Fore’s testimony because he is not qualified, he did not employ
any recognized or reliable methodologies in arriving at his opinions, and his opinions are not
helpful to the trier of fact. See generally ECF No. [40].1 Plaintiff argues that Mr. Fore is qualified,
he employed appropriate methodologies, and his opinions are helpful to the trier of fact. See
generally ECF No. [52].
II.

LEGAL STANDARD
Federal Rule of Evidence 702 governs the admissibility of expert testimony. When a party

proffers the testimony of an expert under Rule 702, the party offering the expert testimony bears
the burden of laying the proper foundation, and that party must demonstrate admissibility by a
preponderance of the evidence. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir.
2005); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). To determine
whether expert testimony or any report prepared by an expert may be admitted, the Court engages
in a three-part inquiry, which includes whether: (1) the expert is qualified to testify competently
regarding the matters the expert intends to address; (2) the methodology by which the expert
reaches his or her conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact,
Defendant also includes within its Reply a separate “Motion to Strike Affidavit of Frank Andrew Fore,
PE” (“Motion to Strike”). ECF No. [57] at 6. Defendant requests that the Court strike the Affidavit filed in
support of Plaintiff’s Response to Defendant’s Motion for Summary Judgment and the instant Motion. See
id. at 7. However, a party may not raise a new motion in its reply. See Herring v. Sec’y, Dep’t of Corrections,
397 F.3d 1338, 1342 (11th Cir. 2005). As such, the Court declines consideration of the improper Motion to
Strike.
1

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through the application of scientific, technical, or specialized expertise, to understand the evidence
or to determine a fact in issue. See City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562
(11th Cir. 1998) (citing Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)).
The Court of Appeals for the Eleventh Circuit refers to each of these requirements as the
“qualifications,” “reliability,” and “helpfulness” prongs. United States v. Frazier, 387 F.3d 1244,
1260 (11th Cir. 2004). While some overlap exists among these requirements, the court must
individually analyze each concept. See id.
As for the qualification prong, an expert may be qualified in the Eleventh Circuit “by
knowledge, skill, experience, training, or education.” J.G. v. Carnival Corp., No. 12-21089-CIV,
2013 WL 752697, at *3 (S.D. Fla. Feb. 27, 2013) (citing Furmanite Am., Inc. v. T.D. Williamson,
506 F. Supp. 2d 1126, 1129 (M.D. Fla. 2007); Fed. R. Evid. 702). “An expert is not necessarily
unqualified simply because [his] experience does not precisely match the matter at hand.” Id.
(citing Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001)). “[S]o long as the expert is minimally
qualified, objections to the level of the expert’s expertise go to credibility and weight, not
admissibility.” See Clena Invs., Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012)
(citing Kilpatrick v. Breg, Inc., No. 08-10052-CIV, 2009 WL 2058384, at *1 (S.D. Fla. Jun. 25,
2009)). “After the district court undertakes a review of all of the relevant issues and of an expert’s
qualifications, the determination regarding qualification to testify rests within the district court’s
discretion.” J.G., 2013 WL 752697, at *3 (citing Berdeaux v. Gamble Alden Life Ins. Co., 528 F.2d
987, 990 (5th Cir. 1976)).2

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as
binding precedent all decisions of the Court of Appeals for the Fifth Circuit rendered prior to October 1,
1981.

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Next, when determining whether an expert’s testimony is reliable, “the trial judge must
assess whether the reasoning or methodology underlying the testimony is scientifically valid
and . . . whether that reasoning or methodology properly can be applied to the facts in issue.”
Frazier, 387 F.3d at 1261-62 (citation omitted) (quotation marks omitted). To make this
determination, the district court typically examines: “(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.” Id. (citing Quiet Tech. DC-8, Inc. v. HurelDubois, UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)). The Eleventh Circuit has emphasized
that the four factors above are not exhaustive and a court may need to conduct alternative analysis
to evaluate the reliability of an expert opinion. See id. at 1262 (“These factors are illustrative, not
exhaustive; not all of them will apply in every case, and in some cases other factors will be equally
important in evaluating the reliability of proffered expert opinion.”). Consequently, trial judges are
afforded “considerable leeway” in ascertaining whether a particular expert’s testimony is reliable.
Id. at 1258 (citing Kumho Tire Co., 526 U.S. at 152).
The final element, helpfulness, turns on whether the proffered testimony “concern[s]
matters that are beyond the understanding of the average lay person.” Edwards v. Shanley, 580 F.
App’x 816, 823 (11th Cir. 2014) (quoting Frazier, 387 F.3d at 1262). “[A] trial court may exclude
expert testimony that is ‘imprecise and unspecific,’ or whose factual basis is not adequately
explained.” Id. (quoting Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d
1092, 1111 (11th Cir. 2005)). To be appropriate, a “fit” must exist between the offered opinion
and the facts of the case. McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004) (citing

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Daubert, 509 U.S. at 591). “For example, there is no fit where a large analytical leap must be made
between the facts and the opinion.” Id. (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997)).
Under Daubert, a district court must take on the role of gatekeeper, but this role “is not
intended to supplant the adversary system or the role of the jury.” Quiet Tech., 326 F.3d at 1341
(citations omitted) (quotation marks omitted). Consistent with this function, the district court must
“ensure that speculative, unreliable expert testimony does not reach the jury.” McCorvey v. Baxter
Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). “[I]t is not the role of the district court
to make ultimate conclusions as to the persuasiveness of the proffered evidence.” Quiet Tech., 326
F.3d at 1341 (citations omitted) (quotation marks omitted). Thus, the district court cannot exclude
an expert based on a belief that the expert lacks personal credibility. Rink, 400 F.3d at 1293 n.7.
On the contrary, “vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Quiet Tech., 326 F.3d at 1341 (quoting Daubert, 509 U.S. at 596). “Thus,
‘[o]n cross-examination, the opposing counsel is given the opportunity to ferret out the opinion’s
weaknesses to ensure the jury properly evaluates the testimony’s weight and credibility.’” Vision
I Homeowners Ass’n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009)
(quoting Jones v. Otis Elevator Co., 861 F.2d 655, 662 (11th Cir. 1988)). Ultimately, as noted, “a
district court enjoys ‘considerable leeway’ in making” evidentiary determinations such as these.
Cook ex rel. Est. of Tessier, 402 F.3d at 1103 (quoting Frazier, 387 F.3d at 1258).
III.

DISCUSSION
Defendant seeks to preclude Mr. Fore from offering expert testimony at trial based upon

the opinions in his report, ECF No. [40-1]. Defendant contends that Mr. Fore’s opinions are
inadmissible because Mr. Fore is not qualified, his opinions are not based on any reliable

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methodology, and his opinions are not helpful. See generally ECF No. [40]. Plaintiff opposes the
Motion by highlighting Mr. Fore’s experience as an engineer and contends that his methodology
is reliable. See generally ECF No. [52]. Mr. Fore’s report states that he relied on the passenger
injury statement, photographs, deposition transcripts, industry standards, Defendant’s internal
documents and training videos, and his site inspection. ECF No. [40-1] 9, 15-16. He sets forth
sixteen opinions:
1. The tile walkway surface where Ms. Holley slipped was unreasonably slippery
and dangerous when wet.
2. The close proximity of the Tivoli Pool and the exterior deck made it foreseeable
that the tile walkway where Ms. Holley slipped would accumulate water from
the pool and rainwater, causing the walkway to become wet and slippery.
3. The location of the tile walkway where Ms. Holley slipped, directly between
the exterior and interior food and beverage areas, made it foreseeable that the
walkway would accumulate food and beverage spills, causing the walkway to
become wet and slippery.
4. Carnival knew or should have known of the unreasonable risk of injury created
by having passengers transition from teak flooring, across the full length of
highly slip resistant mat, and then onto a potentially wet or otherwise
contaminated, non-slip resistant tile floor.
5. The location of the tile walkway where Ms. Holley slipped, directly next to a
highly slip resistant mat, made it foreseeable that the tile walkway would likely
cause slips, especially when the tile was wet or otherwise contaminated, causing
passengers to fall and possibly become injured.
6. Carnival’s failure to provide a walkway surface that would be slip resistant
when wet, or otherwise contaminated, was unreasonable, especially considering
its proximity to a pool and exterior deck and the interior restaurant area.
7. Carnival’s failures to replace the dangerously slippery floor, dry it, over it or to
maintain effective warnings to alert passenger to foreseeable wet and slippery
conditions, violated accepted standards for safe walkways and created the
dangerous conditions that caused Ms. Holley to slip
8. The two-tone color walkway tiles on the tile floor surface made it more difficult
for Ms. Holley to see any walkway contamination and slip hazard.
9. Carnival violated their own safety standard by not ensuring the subject mat was
at least three meters (118.11”) long at the subject location where there was
access from the weather deck to an interior space.
10. Carnival failed to post any warning signs in the area to alert passenger to the
slip hazard or to encourage passengers to watch their step.
11. Carnival’s actions violated the applicable standard of reasonable care for
providing and maintaining safe walkways and created the dangerous conditions
that caused Ms. Holley to fall and be injured.

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12. There was sufficient public and proprietary information available to Carnival
prior to the incident to notify Carnival of the slip and fall hazards in question.
13. Prior to the subject incident, the International Maritime Organization (IMO),
the U.S. Access Board, the American Society for testing and Materials (ASTM),
and Carnival itself published safety standards and guidelines which apply to
walkways and signage in the marine environment.
14. Carnival knew or should have known of the unreasonable risk of injury created
by:
• Their choice to install non-slip resistant tile at the end of a highly slip
resistant floor mat, at the entrance from an exterior deck and pool
• Their choice of two-tone color tile for the interior floor, rendering
contamination inconspicuous.
• Their failure to warn passenger of the contamination and slip hazards.
15. Prior to the subject incident, it was technically and economically feasible for
Carnival to have mitigated the slip and fall hazards in question, as previously
detailed in this report.
16. The reasonable probability is that Ms. Holley would not have fallen or been
injured had one or more of the following elements been properly designed or
corrected:
• A slip resistant floor installed directly in the path of a primary means of
egress from the exterior deck and pool,
• A slip resistant floor installed directly in the path between the interior
and exterior dining areas,
• No abrupt change in the floor slip resistance was created by different
floor material,
• The floor tile had been a color that made contamination and spills more
conspicuous rather than less conspicuous to properly give passengers a
chance to see the hazard,
• Or had Carnival forewarned passengers, either by signage or crew, of
the contamination and slip hazard
Id. at 28-30.
A. Qualifications
The Court first addresses Mr. Fore’s qualifications. Defendant challenges Mr. Fore’s
qualifications by arguing that Mr. Fore is not a naval architect. See ECF Nos. [40] at 12, [57] at 23. Defendant’s argument rests on the contention that, as a land-based engineer, Mr. Fore does not
have any expertise on uniquely maritime issues. See id. Plaintiff relies on Peck v. Carnival Corp.,
No. 16-20214-CIV, 2017 WL 7726728, at *3 (S.D. Fla. Jul. 13, 2017), and contends that because
Mr. Fore is a professional engineer, certified building contractor, certified building inspector, and
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board-certified forensic engineer, he has the expertise to give his opinion on maritime accidents.
ECF No. [52] at 4; see also ECF No. [40-1] at 5.
As noted above, the Eleventh Circuit has determined that an expert may be qualified “by
knowledge, skill, experience, training, or education.” J.G., 2013 WL 752697, at *3 (citing
Furmanite Am., Inc., 506 F. Supp. 2d at 1129; Fed. R. Evid. 702). Furthermore, “[a]n expert is not
necessarily unqualified simply because [his] experience does not precisely match the matter at
hand.” Id. (citing Maiz, 253 F.3d at 665 (11th Cir. 2001)). In this case, Mr. Fore is qualified because
Mr. Fore is a professional engineer and certified tribometrist offering his opinion on precautionary
measures that would have prevented the alleged injury and Defendant’s noncompliance with
industry standards and internal policies. See ECF No. [40-1] at 5. As a professional engineer and
tribometrist, Mr. Fore has expertise in measuring slip resistance and reviewing safety standards.
See id. He has received training and has practical experience in applying the disciplines of
engineering, human factors, ergonomics, epidemiology, and biomechanics to the assessment of
real-world mishaps involving humans. See id. The Court also notes that Mr. Fore is a forensic
accident investigator who has analyzed numerous slips and falls on cruise ships and therefore has
the necessary experience to opine on maritime accidents. See id. As such, the Court determines
that Mr. Fore is qualified to give his expert opinions.
B. Reliable Methodology
The Court next addresses Mr. Fore’s methodology. Defendant raises two general objections
to Mr. Fore’s methodology. First, Defendant argues that many of Mr. Fore’s opinions do not rely
on scientific methods. See ECF No. [40] at 12-16. Second, Defendant argues that several of Mr.
Fore’s opinions improperly rely on non-binding industry standards. See id. at 16-20. The Court
addresses each argument in turn.

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a. Reliance on “Non-Scientific” Methodology
Defendant argues that Mr. Fore did not use a scientific methodology in forming his
opinions that (1) the liquid in question was camouflaged and not open and obvious, ECF No. [40]
at 12; (2) the area in question is a high-traffic area and subject to spills, id. at 13; (3) a larger floor
mat could have prevented the incident, id. at 15; (4) a warning sign could have prevented the
incident, id. at 15-16; and (5) the two-tone color walkway tiles on the tile floor made it more
difficult for Plaintiff to see the slip hazard, ECF No. [57] at 4-5. Plaintiff responds that Mr. Fore’s
report and deposition set forth sufficient methodology for each challenged opinion. See ECF No.
[52] at 6.3
As noted above, in determining whether an expert used reliable methods, the trial judge
typically examines “(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.” Frazier, 387 F.3d at 1261-62 (citing Quiet Tech. DC-8, Inc., 326 F.3d at
1341). Those four factors above are illustrative and not exhaustive. See id. at 1262. In Higgs v.
Costa Crociere S.P.A. Co., No. 15-60280-CIV, 2016 WL 4370012, at *6 (S.D. Fla. Jan. 12, 2016),
the court held that experts giving opinions do not always have to give “detailed measurements or
experiments” depending on the type of analysis required to form an opinion on the matter.
In this case, Mr. Fore’s report states that he conducted a site inspection of the vessel and
reviewed photographs of the scene, the passenger injury statement, deposition transcripts, industry
standards, and Defendant’s internal documents. See ECF No. [40-1] at 9, 17. Similar to the

Defendant does not indicate which of Mr. Fore’s numbered conclusions it challenges for using nonscientific methodology. To the extent that the Court can discern whether the challenged opinions have
corresponding numbered conclusions, the Court notes them below.
3

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opinions Defendant challenges here, the court in Higgs found that an expert opining on conformity
to industry safety standards could base his opinion on a “personal inspection and pictures of the
dining area where the incident occurred, a review of relevant discovery documents, and his
extensive experience . . .” See 2016 WL 4370012, at *6; cf. Umana-Fowler v. NCL (Bahamas)
Ltd., 49 F. Supp. 3d 1120, 1123 (S.D. Fla. 2014) (finding that the failure to visit the scene, review
photographs, review written discovery responses, and interview witnesses are grounds for
excluding the expert’s opinion). As such, in this case, detailed measurements and experiments are
not necessary for all of Mr. Fore’s opinions, and Mr. Fore can rely on the passenger injury
statement, photographs, deposition transcripts, industry standards, Defendant’s internal
documents, and his site inspection as part of his methodology for reaching some of his conclusions.
ECF No. [40-1] 9, 17.
Determining whether Mr. Fore’s methodology is sufficiently reliable requires an analysis
of each of the opinions that Defendant challenges for using non-scientific methodology. Therefore,
the Court now turns to each of the opinions that Defendant challenges on the grounds of nonscientific methodology. First, although Defendant argues that Mr. Fore relies on non-scientific
methods to arrive at his opinion that the liquid was camouflaged, Mr. Fore’s report describes how,
during his site inspection, he conducted “wet slip testing” of the floor in question and he tested
whether the liquid appeared camouflaged. ECF No. [40-1] at 23-24. Mr. Fore’s report includes a
photograph from the wet slip testing and appropriate remediation. See id. Mr. Fore also explained
at his deposition how the wet area appeared camouflaged due to darker colored tiles. See ECF No.
[40-2] at 166. The Court considers such testing and reasoning to be sufficiently reliable.
Second, Defendant argues that Mr. Fore’s opinion that the area in question is high-traffic
and subject to spills is not based on reliable methodology. ECF No. [40] at 13. According to

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Plaintiff’s Response and Mr. Fore’s deposition, Mr. Fore’s opinion relies on Defendant’s training
videos regarding precautions that need to be taken at the area in question due to it being a hightraffic area. ECF Nos. [52] at 7, [40-2] at 106-07; see also ECF No. [40-1] at 16. Additionally, in
Mr. Fore’s report, Mr. Fore discusses his site inspection during which he observed indoor and
outdoor food and beverage stations and the dining area’s seating arrangements. See ECF No. [401] at 17-18. Mr. Fore explains how the seating arrangements, seating capacity, and the layout of
the food and beverage stations require passengers to traverse the area in question after getting their
food and beverage, thereby making the area prone to spills. See ECF No. [40-1] at 17-18, 25. In
Higgs, 2016 WL 4370012, at *6, the court found that an expert properly relied on his personal
inspection and pictures of the dining area, a review of relevant discovery documents, and his
extensive experience to form an opinion on the defendant’s conformity to industry safety
standards. Similarly, in this case, considering Mr. Fore’s experience with cruise ship accidents,
Mr. Fore properly relied on his review of the training videos and his personal inspection of the
dining area to opine on the conditions of the area in question.
Third, Defendant argues that Mr. Fore’s opinion that a larger floor mat could have
prevented the accident is based on non-scientific methods (Conclusion 9). ECF No. [40] at 15. Mr.
Fore’s report states that he analyzed photographs and estimated that the length of the mat at the
time of the incident extended only 58 inches into the interior of the restaurant. See ECF No. [401] at 19. He also conducted a site inspection and determined that the replacement mat only
extended 113.75 inches into the restaurant. See id. Based on the measurements, Mr. Fore
determined that both floor mats did not meet Defendant’s three meter minimum standard for floor
mats. See id. Mr. Fore further explained at his deposition that a longer mat would have allowed
more time and distance for passengers to shed water. ECF No. [40-2] at 198-99. Given Mr. Fore’s

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experience measuring slip resistance and studying falls, such methodology and reasoning are
reliable methods, and additional measurements or scientific experiments were not required for this
particular opinion. See Higgs, 2016 WL 4370012, at *6.
Fourth, Defendant argues that Mr. Fore’s opinion that a warning sign could have prevented
the incident is not based on scientific evidence (Conclusion 10). See ECF No. [40] at 15-16.
Plaintiff argues that Mr. Fore’s opinion is appropriately based on a review of Plaintiff’s testimony,
a site inspection, and GAZE studies. See ECF No. [52] at 9; see also ECF No. [40-2] at 123, 126.
At Mr. Fore’s deposition, Mr. Fore explained that GAZE studies suggest that people tend to look
ten to fifteen feet in front of them. See ECF No. [40-2] at 126. However, Mr. Fore did not provide
any meaningful information about the scientific validity of GAZE studies in his report or at his
deposition. Without additional information about GAZE studies, an application of GAZE studies
cannot be considered sufficiently reliable methodology.4 Moreover, even if GAZE studies were
based on valid scientific methods, Mr. Fore admitted at his deposition that he has no evidence as
to where Plaintiff was looking when she fell, and that it was “entirely possible” that Plaintiff was
looking elsewhere. ECF No. [40-2] at 126. As such, Mr. Fore has no reliable factual basis to opine
that an appropriately placed warning sign would have prevented the fall. Also, although Plaintiff
argues that Mr. Fore relied on his site inspection and Plaintiff’s testimony, Mr. Fore’s report does
not describe how the site inspection and Plaintiff’s testimony informed his opinion on the matter.
See ECF No. [40-1] at 24. Accordingly, Mr. Fore’s opinion on whether warning signs could have
prevented the incident is inadmissible.
In the Response, Plaintiff mentions the “Dixon article – cited in his report” as a GAZE study. ECF No.
[52] at 8. The list of references cited in Mr. Fore’s report do not include the Dixon article. See ECF No.
[40-1] at 31-34. Even if the Dixon article is included elsewhere in Mr. Fore’s report, the study does not
advance Plaintiff’s argument for the reasons stated above. In addition, the Court does not consider Mr.
Fore’s Affidavit, ECF No. [49-1], because it is not a part of his timely expert witness disclosures required
by Fed. R. Civ. P. 26(a)(2)(B) or part of his deposition. See also Fed. R. Civ. P. 26(a)(2)(C).
4

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Fifth, Defendant argues that Mr. Fore’s opinion that the two-tone color walkway tiles on
the tile floor made it more difficult for Plaintiff to see any walkway contamination or slip hazard
is not based on scientific evidence (Conclusion 8). ECF No. [57] at 4-5. According to Plaintiff’s
Response and Mr. Fore’s deposition, the opinion is based on GAZE studies and the general speed
at which people tend to walk. See ECF No. [52] at 8-9; ECF No. [40-2] at 167-68. However, as
noted above, GAZE studies are not sufficiently reliable, especially since Mr. Fore has no evidence
as to where Plaintiff was looking at the time of the incident. ECF No. [40-2] at 126. Mr. Fore also
admitted at his deposition that he did not know the specific speed at which Plaintiff was walking.
ECF No. [40-2] at 168. In other words, Mr. Fore speculates as to where Plaintiff was looking and
how fast Plaintiff was walking to form his opinion. As such, Mr. Fore’s opinion on whether the
two-tone color walkway tiles made it more difficult for Plaintiff to see any walkway contamination
and slip hazard is inadmissible.5
b. Reliance on Non-Binding Industry Standards
Defendant also contends that Mr. Fore’s methodology, specifically his use of non-binding
industry standards, is unreliable, rendering Mr. Fore’s conclusions numbered 2, 3, 6, 9, 11, 12, 13,
14, and 15 inadmissible. ECF No. [57] at 3. Defendant relies on several cases, including Amy v.
Carnival Corp., 360 F. Supp. 3d 1345, 1356 (S.D. Fla. 2018), and Krug v. Celebrity Cruises, Inc.,
745 F. App’x 863, 868 (11th Cir. 2018), to argue that non-binding standards are not relevant to the

It should be noted that one of Mr. Fore’s numbered conclusions is that Defendant knew or should have
known of the unreasonable risk of injury created by Defendant’s choice of two-tone tiles which rendered
the “contamination inconspicuous” (Conclusion 14). See ECF No. [40-1] at 29. As Mr. Fore stated at his
deposition, his opinion on whether the contamination is generally inconspicuous is independent of whether
the Plaintiff saw the contamination. ECF No. [40-2] at 166. In other words, Conclusion 14 does not pertain
to why Plaintiff fell but whether the tiles made the contamination look inconspicuous. At Mr. Fore’s
deposition, he further discussed his site inspection where he tested whether the two-tone tiles made spills
look inconspicuous. See id. at 166-67. As such, Mr. Fore’s opinion that Defendant knew or should have
known of the unreasonable risk of injury created by Defendant’s choice of two-tone tiles is not speculative.
5

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notice inquiry and should not be a part of Mr. Fore’s methodology. See ECF Nos. [40] at 17, [57]
at 3. Based on Amy, Defendant argues that the “Southern District has shifted its thinking and found
that these non-mandatory rules do not establish constructive notice.” ECF No. [40] at 17. Plaintiff
does not respond to Defendant’s contention about the supposed shift in jurisprudence. See
generally ECF No. [52].
Nonetheless, the Court notes several cases, some more recent than the cases Defendant
relies on, have long established that industry standards may put a defendant on notice of dangerous
conditions. See, e.g., Andersen v. Royal Caribbean Cruises Ltd., No. 19-CV-24639, 2021 WL
2414151, at *9 (S.D. Fla. Jun. 14, 2021) (citing Bunch v. Carnival Corp., 825 F. App’x 713, 71516 (11th Cir. 2020); Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1282 (11th Cir. 2015));
Francis v. MSC Cruises, S.A., No. 18-61463-CIV, 2021 WL 2661149, at *6 (S.D. Fla. Jun. 29,
2021) (citing Wolf v. Celebrity Cruises, Inc., 683 F. App’x. 786, 795 (11th Cir. 2017); Sutton v.
Royal Caribbean Cruises Ltd., 774 F. App’x. 508, 512 (11th Cir. 2019)); Muncie Aviation Corp.
v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180-81 (5th Cir. 1975) (“Evidence of custom within a
particular industry, group, or organization is admissible as bearing on the standard of care in
determining negligence.”).
Most recently, this Court, relying on two Eleventh Circuit cases, held that “evidence that
an allegedly dangerous condition failed to comply with industry safety standards, together with
other evidence of notice, can be used to establish constructive notice.” Andersen, 2021 WL
2414151, at *9 (citing Bunch, 825 F. App’x at 715-16; Sorrels, 796 F.3d at 1282). In Andersen,
the Court denied a motion for summary judgment after determining that one of the experts properly
relied on the fact that the tile flooring in question did not comport with industry safety standards
and that another expert properly relied on the fact the defendant’s a/c maintenance protocol

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violated industry standards. See id. The Court held that a reasonable factfinder could conclude that
the defendant had constructive notice of a risk-creating condition based on expert opinions about
the defendant’s noncompliance with industry standards. See id. In other words, the Court
recognized that industry standards could form the basis for expert opinions. Similarly, in this case,
Mr. Fore may rely on industry standards to form an opinion about Defendant’s constructive notice
of dangerous conditions.
Moreover, Defendant’s reliance on the Eleventh Circuit case Krug, 745 F. App’x at 868,
is unavailing. ECF No. [57] at 3. The Eleventh Circuit Krug did not hold that non-binding industry
standards are not relevant to the notice inquiry. See 745 F. App’x at 868. Instead, the Eleventh
Circuit found that the district court properly afforded minimal weight to the plaintiff’s expert
opinions in considering a motion for summary judgment because the experts failed to identify the
industry standard that the defendant had violated. See id. It was the failure to identify industry
standards, not the reliance on industry standards, that resulted in the district court properly
affording minimal weight to the expert opinions. In sum, the Eleventh Circuit did not determine
that industry standards are not relevant to the notice inquiry, but that a failure to adequately
describe the industry standards relied upon by an expert witness undermines the credibility of the
expert witness. In this case, Mr. Fore adequately described the industry standards he relied upon.
ECF No. [40-1] at 31-32.
Defendant’s reliance on Amy as the “most recent on-point decision” is also unpersuasive.
ECF No. [40] at 17. In Amy, the court acknowledged that other courts in the district had found that
voluntary non-binding standards may be used as evidence of constructive notice, but the court
determined that industry standards did not provide constructive notice in that particular case. 360
F. Supp. 3d at 1356. However, it is important to note that the Eleventh Circuit reversed and

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remanded the decision. See Amy v. Carnival Corp., 961 F.3d 1303, 1310 (11th Cir. 2020). The
Eleventh Circuit did so in part because “a reasonable jury could understand [a witness’] testimony
to show that [the defendant] knew of the dangers of climbable railings, as well as the 4-inch safety
standard.” See id. The defendant’s knowledge of the 4-inch safety standard, in turn, could help
establish that the defendant had constructive notice of the risk-creating condition. See id.
As Plaintiff argues, Mr. Fore did not rely solely on non-binding industry standards in
reaching the conclusions numbered 2, 3, 6, 9, 11, 12, 13, 14, and 15. See ECF No. [52] at 7-11.
While Mr. Fore did not rely on prior incident evidence as Defendant rightly argues, ECF No. [40]
at 18, Mr. Fore did rely on Defendant’s own published safety standards, internal policies, internal
documents, and training videos to form his conclusions. See ECF Nos. [40-1] at 15-16, 19, 27-28,
[40-2] at 101, 104, see also ECF No. [52] at 7-11. This Court recently held that a defendant’s
“cruise safety practices when marking and warning of hazardous spills and Defendant’s spill
policies are . . . helpful to the jury’s understanding of the applicable standard of care.” Maxwell v.
Carnival Corp., No. 19-CV-23054, 2021 WL 1535398, at *3 (S.D. Fla. Apr. 19, 2021). Similarly,
in Webb v. Carnival Corporation, 321 F.R.D. 420, 426 (S.D. Fla. Jul. 6, 2017), the court found
that an expert’s proffered testimony on cruise safety practices and defendant’s policies was
admissible in establishing the standard of care. In accordance with recent cases that indicate
internal practices and policies are relevant to the appropriate standard of care, Mr. Fore’s review
of industry standards and Defendant’s internal policies is a reliable method to form his expert
opinion about the appropriate standard of care.

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C. Helpfulness
a. Video Review
The Court now addresses whether Mr. Fore’s opinions are helpful. Defendant argues that
Mr. Fore’s discussion of a video should be inadmissible because it is not helpful. ECF No. [40] at
14. Defendant argues that Mr. Fore did not conduct any analysis of the video and will likely “tell
the jury what to conclude from the video” after having merely watched the video. Id. Defendant
cites Kirksey v. Schindler Elevator Corp., No. CV 15-0115-WS-N, 2016 WL 5239874, at *8 (S.D.
Ala. Sept. 21, 2016), for its contention that the trier of fact can and should review the video
themselves and that Mr. Fore’s opinion, based on the video that the area in question is subject to
high traffic and prone to spills, is not helpful. ECF No. [40] at 14-15.
Plaintiff argues that Mr. Fore used the video to form the factual basis for his opinion that
the area in question is prone to spills and that his opinion about the area in question is helpful.
However, Plaintiff does not specifically address Defendant’s contention that Mr. Fore’s testimony
regarding the video itself would not be helpful. ECF No. [52] at 7. Plaintiff, for instance, does not
explain if and how Mr. Fore’s expertise and experience gave him additional insight into what the
video depicts. See id. In Jackson v. Catanzariti, No. 6:12-CV-113, 2019 WL 2098991, at *9 (S.D.
Ga. May 14, 2019), the court found that an expert could not opine on what the video footage
showed without offering any “expert gloss or explanation.” Similarly, because Mr. Fore did not
explain how his experience and expertise informed his analysis of the video, Defendant is
persuasive to the extent that Mr. Fore’s overview of the video would not be helpful.
However, Mr. Fore’s opinion that the area in question is subject to high traffic and prone
to spills is helpful because Mr. Fore relied, not only on the video, but also on his analysis of how
the vessel’s seating arrangements, seating capacity, and the layout of the food and beverage

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stations required passengers to traverse the area in question with food and beverages, thus making
the area prone to spills. See ECF No. [40-1] at 17-18, 25. The Court considers such analysis to be
beyond the understanding of the average lay person. As such, Mr. Fore may offer the opinion he
formed partly relying on the video, but Mr. Fore may not merely describe what the training video
shows.
b. Legal Conclusions
Defendant argues that Mr. Fore’s opinions indicating that Defendant had actual or
constructive notice of the dangerous condition or was otherwise at fault are not helpful and
impermissible legal conclusions. ECF No. [40] at 10-11. It is well-established that experts may not
offer legal conclusions. See, e.g., Zarfaty v. Garden Fresh Rest. Corp., No. 15-CV-60268, 2019
WL 8810306, at *3 (S.D. Fla. Oct. 30, 2019) (“[the expert] may not offer testimony with respect
to Defendant’s notice, either actual or constructive”) (citing Montgomery v. Aetna Cas. & Sur. Co.,
898 F.2d 1537, 1541 (11th Cir. 1990)); O’Malley v. Royal Caribbean Cruises, Ltd., No. 17-21225CIV, 2018 WL 2970728, at *4 (S.D. Fla. Jun. 13, 2018) (“Mr. Gras’ generic opinions are
intertwined with legal conclusions that Defendant was negligent and that the vessel’s personnel
caused Plaintiff’s injuries. Therefore, we conclude that Mr. Gras may not testify that Defendant
was at fault or that Defendant breached its duty of care.”); Higgs, 2016 WL 4370012, at *7
(concluding that Mr. Jaques’ opinions that a defendant “is at fault” or that its crew is “careless,”
and testimony concerning the applicable legal standard, i.e., that a defendant is “legally required
to exercise at least ‘reasonable care the safety’ of the passengers in question,” all constitute
unhelpful and impermissible legal conclusions that should be stricken); Feldman v. Target Corp.,
No. 3:19-CV-419-MMH-PDB, 2021 WL 1172794, at *3 (M.D. Fla. Mar. 29, 2021), adhered to
on denial of reconsideration, No. 3:19-CV-419-MMH-PDB, 2021 WL 1813443 (M.D. Fla. May

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6, 2021) (precluding an expert’s opinion that conditions were “unreasonably dangerous” because
it was a legal conclusion that defendant acted negligently). Plaintiff responds that Mr. Fore’s
opinions are helpful because they are beyond the knowledge of a lay jury, but Plaintiff fails to
address Defendant’s contention that Mr. Fore’s opinions are impermissible legal conclusions. ECF
No. [52] at 11-12.
The Court agrees with Defendant that opining on constructive or actual notice and
assigning fault are legal conclusions that invade the province of the jury and are not helpful.
Accordingly, Mr. Fore is precluded from testifying that Defendant “knew or should have known”
of the risk, that there was sufficient information to “notify” Defendant, or that various
circumstances made dangerous conditions “foreseeable.” ECF No. [40-1] at 28-29; see Zarfaty,
2019 WL 8810306, at *3. Mr. Fore is also precluded from testifying that Defendant “violated the
applicable standard of reasonable care[,]” ECF No. [40-1] at 29 (emphasis added), but Mr. Fore
may opine as to whether Defendant violated Defendant’s own safety standards and industry
standards, which are not legal conclusions and beyond the expertise of an average lay juror, see
Higgs, 2016 WL 4370012, at *7. Mr. Fore’s testimony that certain conditions posed an
“unreasonable” risk, ECF No. [40-1] at 28-29, is inadmissible as a legal conclusion, see Feldman,
2021 WL 1172794, at *3. Similarly, Mr. Fore’s opinion that it was “technically and economically
feasible” to mitigate the risk, ECF No. [40-1] at 29, is also inadmissible as a legal conclusion. See
Cordoves v. Miami-Dade Cty., 104 F. Supp. 3d 1350, 1365 (S.D. Fla. 2015) (“If testimony track[s]
the language of the applicable statute or uses a term that has a specialized legal meaning that is
more precise than the lay understanding of the term, the testimony is an impermissible legal
conclusion.”) (quoting Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1212

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(D.C. Cir. 1997)) (internal quotations omitted).6 Mr. Fore is permitted to offer his underlying
opinions without framing them as legal conclusions or using legal terms.
IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion, ECF No.

[40], is GRANTED IN PART AND DENIED IN PART.
DONE AND ORDERED in Chambers at Miami, Florida, on November 17, 2021.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

Defendant also challenges Mr. Fore’s use of the phrase “open and obvious.” ECF No. [40] at 12. Defendant
refers to page 178 of Mr. Fore’s deposition in which Mr. Fore allegedly used the phrase. See id. However,
Mr. Fore does not use the phrase in his deposition and only uses the word “camouflaged.” See ECF No.
[40-2] at 178. Furthermore, Mr. Fore does not use the phrase “open and obvious” in his conclusions. See
ECF No. [40-1] at 29-31. To the extent that Mr. Fore intends to use the phrase, the phrase is inadmissible
as a legal conclusion. See Cordoves v. Miami-Dade Cty., 104 F. Supp. 3d 1350, 1365 (S.D. Fla. 2015).
However, the use of the word “camouflaged” is admissible because it is not a legal conclusion.
6

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