Chappell v. Carnival Corp.

666 F.Supp.3d 1316

Angelique CHAPPELL, Plaintiff, v. CARNIVAL CORPORATION, Defendant.

Case No. 21-cv-23787-SMITH/DAMIAN

United States District Court, S.D. Florida

Signed March 30, 2023

David L. Markel, Edward Steven Schwartz, Nicholas I. Gerson, Philip Maurice Gerson, Gerson and Schwartz, P.A., Miami, FL, Jared Ian Ross, Greenspoon Marder, P.A., Fort Lauderdale, FL, for Plaintiff.

Garrett Peter Keane, William Robert Seitz, Mase Mebane & Briggs, P.A., Miami, FL, for Defendant.

ORDER ON PLAINTIFF'S MOTION TO EXCLUDE EXPERT TESTIMONY PURSUANT TO DAUBERT [ECF NO. 41]

MELISSA DAMIAN, UNITED STATES MAGISTRATE JUDGE

THIS CAUSE is before the Court on Plaintiff, Angelique Chappell's ("Plaintiff"), Motion to Exclude Testimony Pursuant to Daubert, filed on December 2, 2022 [ECF No. 41] (the "Motion"). The Motion was referred to the undersigned by the Honorable Kathleen M. Williams, United States District Judge. [ECF No. 43]. See 28 U.S.C. § 636(b)(1)(A).¹

THIS COURT has reviewed the Motion, the Response [ECF No. 47], and Reply thereto [ECF No. 51], as well as the documents submitted in support of the Motion, including the Report [ECF No. 41-1] and Declaration of Dr. Daniel Buffington [ECF No. 47-1], the pertinent portions of the record, and all relevant authorities and is otherwise fully advised in the premises. For the reasons set forth below, the Motion to Exclude Expert Testimony [ECF No. 41] is GRANTED IN PART AND DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUND

This is a maritime negligence action in which Plaintiff seeks damages for injuries allegedly sustained while a passenger aboard Defendant's cruise ship, the Carnival Horizon. [ECF No. 21] ("Amended Complaint") at ¶¶ 12-14. Plaintiff alleges she was severely injured when she slipped and fell as she was stepping on a wet, foreign, or transitory substance on the metal nosing of the second to last step of a staircase on the vessel. Id.

Plaintiff filed this lawsuit on October 27, 2021. [ECF No. 1]. In the operative Amended Complaint, filed on July 8, 2022, Plaintiff asserts claims for (1) negligent maintenance and (2) negligent failure to warn. See Am. Compl. at 4-7. More specifically, Plaintiff alleges that Carnival was negligent for its alleged failure to: (a) "timely and adequately [ ] inspect the staircase on which . . . Plaintiff fell for slipping hazards"; (b) "cordon off or restrict access to the dangerous area of the staircase"; (c) "timely [ ] correct the dangerous condition of the staircase"; and (d) "adequately maintain the staircase." Id. ¶ 21. Plaintiff also alleges that Carnival failed to warn her of the "dangerous condition on the onboard staircase leading from Deck 4 to Deck 2" of the vessel. Id. ¶ 24. Plaintiff alleges that as a result of her slip and fall, she sustained permanent and continuing injuries, including a tibial fracture, pain, mental anguish, sustained disfigurement, disability, and the inability to lead a normal life. Id. ¶ 16. Defendant filed an Answer and Affirmative Defenses to the Amended Complaint on July 19, 2022. [ECF No. 22].

On November 4, 2022, Defendant filed a Motion for Summary Judgment [ECF No. 34], which is ripe as of November 28, 2022. Thereafter, on December 2, 2022, Plaintiff filed the Motion now before the Court.² In her Motion, Plaintiff seeks to strike the testimony of Defendant's clinical pharmacologist and toxicology expert, Dr. Daniel Buffington ("Dr. Buffington"), on the grounds his testimony and opinions are unreliable.

Plaintiff's Motion is now fully briefed and ripe for adjudication.³

II. THE ISSUES RAISED IN THE MOTION

Plaintiff seeks to exclude the testimony of Dr. Buffington, a clinical pharmacologist and toxicology expert retained by Defendant to opine regarding Plaintiff's estimated blood alcohol concentration ("BAC") and the impacts on her faculties at the time of the alleged incident. See Mot. at 1-2. More specifically, Plaintiff argues that Dr. Buffington's opinions are premised on "unsupported assumptions and unreliable methodology" and should, therefore, be stricken pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Id. According to Plaintiff, Dr. Buffington "lacks the necessary information" regarding the "type and quantity of alcohol" consumed, "food intake," and "rate of absorption" to make any reliable estimate of Plaintiff's BAC at the time of her fall. Id. at 4-5. Plaintiff also takes issue with Dr. Buffington's methodology and argues that his opinions regarding Plaintiff's estimated BAC are based solely on Plaintiff's deposition testimony, shipboard medical records, and drink receipts—none of which identifies "how much of the drinks the Plaintiff purchased [while onboard] were actually consumed by the Plaintiff." [ECF No. 51] ("Reply") at 1. Lastly, Plaintiff argues that Dr. Buffington cannot offer any opinions concerning the safety of the onboard stairs on which Plaintiff fell or the mechanics of her interaction with those stairs since Dr. Buffington does not purport to be qualified as an accident reconstruction expert, biomechanics expert, human factors expert, or engineer. Mot. at 6.

In response, Defendant contends that Dr. Buffington used a reliable methodology and is qualified to offer the opinions, as detailed in his Report, regarding Plaintiff's level of intoxication and the effect such intoxication may have had on her fall. Resp. at 2-8. Defendant avers that Plaintiff's challenges to the reliability of Dr. Buffington's calculations of Plaintiff's estimated BAC, "go to the weight, not the admissibility of the expert evidence." Id. at 6. And Defendant maintains that Dr. Buffington "does not offer opinions regarding accident reconstruction or biomechanics, nor is he held out as an expert in these fields." Id. at 7. In further support of these arguments, Defendant submitted the Declaration of Dr. Buffington, which explains his methodologies and includes his curriculum vitae. [ECF No. 47-1].

III. APPLICABLE LEGAL STANDARDS

A. Analyzing The Admissibility Of Expert Testimony

Federal Rule of Evidence 702 governs the admissibility of expert testimony. Pursuant to Rule 702, an expert witness may testify in the form of an opinion if: "(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702. The Court serves as a gatekeeper to the admission of scientific and technical expert evidence. Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003) (citing Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786). The Court's role is especially significant given that an expert's opinion can be both powerful and quite misleading. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). Thus, 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).

In determining the admissibility of expert testimony, the Court engages in a three-part inquiry to consider whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology used by the expert in reaching his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact to understand the evidence or to determine a fact in issue through the application of scientific, technical or specialized expertise.

City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562-63 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589, 113 S.Ct. 2786). The Eleventh Circuit refers to each of these requirements as the "qualification," "reliability," and "helpfulness" prongs. Frazier, 387 F.3d at 1260. While some overlap exists among these requirements, the Court must analyze each one individually. Id.

Qualifications: An expert may be qualified by knowledge, skill, experience, training, or education. Easterwood v. Carnival Corp., No. 19-CV-22932, 2020 WL 6880369, at *2 (S.D. Fla. Nov. 23, 2020) (Bloom, J.). An expert is not necessarily unqualified simply because his experience does not precisely match the matter at hand. Id. So long as the expert is minimally qualified, objections to the level of the expert's expertise go to credibility and weight of the expert's testimony, not its admissibility. Id.

Reliability: In determining the reliability of an expert's methodology, the Court considers: (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 1262. The same criteria applies to both scientific opinions and experience-based testimony. Id. at 1261-62. (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). Even so, the Court is allowed significant flexibility to consider other factors relevant to reliability. Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167.

Helpfulness: Expert testimony is only admissible if it concerns matters that are beyond the understanding of the average lay person and offers something more than what lawyers can argue in closing arguments. Webb v. Carnival Corp., 321 F.R.D. 420, 425 (S.D. Fla. 2017) (Torres, J.) (quoting Frazier, 387 F.3d at 1262-63). While an expert may testify regarding his opinions on an ultimate issue of fact, "he may not testify as to his opinions regarding ultimate legal...