Katzoff v. NCL Bah., Ltd.

JERALD KATZOFF, Plaintiff, v. NCL BAHAMAS, LTD., Defendant.

CASE NO. 19-22754-CIV-COOKE/GOODMAN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

April 19, 2021

REPORT AND RECOMMENDATIONS ON MOTION TO STRIKE/DAUBERT MOTION TO EXCLUDE PLAINTIFF'S EXPERT WITNESS, EDWARD WANKEL

Jerald Katzoff alleges that he was injured while dancing in a lounge aboard the Norwegian Sky cruise ship because he tripped on a sound monitor on the dance floor. In this lawsuit against NCL (BAHAMAS) LTD, Katzoff retained Edward Wankel as an expert witness on issues relating to the placement of the sound monitor, sometimes called the stage monitor. By way of summary, Wankel, who has a bachelor's degree in Business Administration and a master's degree in Public Administration, opined that NCL was negligent in myriad ways. NCL filed a Daubert motion to exclude Wankel's expert opinion testimony. [ECF No. 97]. Katzoff filed an opposition response, and NCL filed a reply [ECF Nos. 102; 105]. United States District Judge Marcia G. Cooke referred the Daubert motion to the Undersigned. [ECF No. 98].

For the reasons discussed below, the Undersigned respectfully recommends that Judge Cooke grant the motion. Wankel's proposed opinions have several problems, ranging from concerns about his qualifications to the absence of reliable methodology. At bottom, though, Wankel's opinions would not be helpful to a jury. His core opinion -- that NCL negligently placed a stage monitor on the dance floor where passengers were dancing, rather than on the stage -- concerns a lay matter that the jury can easily understand and decide without Wankel's opinion. His other opinions either contain too little analysis, are outside of his area of expertise, and/or are impermissibly conclusory. Plaintiff never addressed those challenges in his opposition response. The Undersigned will provide a more comprehensive discussion of the facts and legal principles and then analyze the Daubert challenge.

I. Factual Background

Wankel's Report contains both "opinions" and "conclusions." Rather than paraphrase the opinions and conclusions, I will quote them here verbatim:

a. Opinions

1. Based on a reasonable degree of professional certainty, the Defendant did not exercise due care in the set up of their stage for Mr. Katzoff and other passengers onboard the Norwegian Cruise Line Vessel SKY, on August 16, 2018 in a safe manner, by creating a tripping hazard for passengers dancing in the Outrigger lounge. The carelessplacement of the monitor caused the Plaintiff to trip and fall over a stage monitor that was placed in a careless and dangerous manner. (See CCTV Video of Accident).

2. The Defendant did not follow their own policies and procedures as stated in the Defendants SMART Training Campaign. As stated therein, the Defendant acknowledges that inadequate lighting and other contributors such as the environment cause or contribute to trip and falls. NCL acknowledges that trip and falls are preventable by following a risk-based approach and "identifying high risk areas." Hazards and obstructions should be clearly marked according to their policy.

3. It is my further opinion, based on a reasonable degree of professional certainty, that Defendant should have known that inadequate and improper set up procedures and safety inspections by under qualified staff, on the vessel SKY, over a long period of time, contributed to creating a dangerous condition for passengers at large. It should have been anticipated that the guest population on a large ship, who rely on the vessel's staff for their safety, will include a variety of people from all age brackets and physical and mental conditions. The fact that the ships technical personnel who were responsible for the maintenance, set up of equipment and the safety of the dancing space, should have known that improper placement of stage monitors on the dance floor, rather than on the stage where it belongs, created an unreasonable and avoidable danger to passengers.

3. The Defendants failed to follow standards and guidelines from audio visualprofessionals, manufacturers of stage monitors and the performers themselves, as testified to by Alexandra Jaime (performer) under contract with the Defendant, that stage monitors should be placed on the stage. (See Attachments # 3,4 and 5).¹

4. Defendant failed to have as crew qualified stage technicians trained to competently set up a stage at the Outrigger Lounge. The Outrigger Lounge was unsafe for the Plaintiff and other NCL passengers on August 16, 2018.

5. There were reasonable alternatives for available practical passenger safety and due care at the time and place alleged in the complaint. They include:

• The Defendants ship employees could have set the stage monitor on a raised stand.

• The Defendant could have placed the stage monitor off the side of the dance floor to make it visible to passengers.

• The Defendants could have warned Plaintiff and other passengers about the speaker placement danger.

• The Defendant could have eliminated the use of a stage monitor which was not necessary for a small venue.

• The Defendant could [have] used smaller monitors which many performers prefer to eliminat[e] the stage monitor. See attached manufacturers recommendation. (See Attachment # 3).

• As observed on the video, the dance floor area was dark and the passengers['] visibility was limited by the spot lights, strobes, and colored lights flashing. Objects on the dance floor would have been more conspicuous by simplifying the lighting.

• The lighting conditions on the CCTV video is a misleading representation of the visual appearance to passengers on the dance floor. This video was taken between 10:30 PM and 11 PM on August 16, 2018. The stage monitor was black. In my opinion the Defendant should have enhanced the lighting to improve safety of passengers using this busy traffic area and dance floor.

• The Defendants knew or should have known that most people are drinking alcoholic beverages at social dancing venues especially with a bar right in back of the stage. While drinking alcohol it more difficult for passengers to see obstacles on and around the dance floor. As testified to by defendant representatives in their deposition most of the previous accidents where guests tripped over speakers, their breathalyzers test showed high levels of alcohol by those patrons. So again, in my opinion they knew this was commonplace and did nothing to reduce the potential risk of accidents in the Outrigger Lounge. The Plaintiff was not intoxicated at the time and place. (See review of Documents Deposition of Brett Berman) Page # 6.

• There are other options for the placement of stage monitors or none at all in my opinion. The music is also distracting, there were no staff to monitor guests, and The Defendant knew about prior tripping accidents over speakers. And Defendant knew its passenger population was at higher risk for falls compared to general populations. This in my opinion was a recipe for accidents to happen as Defendant states, "Older adults, expected and encouraged to drink a lot, have less agility, poorer eyesight and hearing among other naturally occurring health issues due to age," in my opinion.

[ECF No. 97-2, pp. 10-12].

b. Conclusions

Based on my investigation and evaluation of the circumstances involved in this case, it is my professional opinion that the Defendant did not exercise reasonable and due care in providing a safe environment at the Outrigger Lounge stage and dance floor on the NCL, SKY vessel on August 16, 2018. In evaluating the subject defendants conduct with regard to proper stage set up procedures and proper safety inspections, and lightingto protect the Plaintiff Jerald Katzoff, I can state, based on the information available at this time with a reasonable degree of of [stet] professional certainty, that the Defendants failed in its duty to exercise reasonable care to protect the Plaintiff along with other guest[s] and dancers on August 16, 2018.

Specifically, the Defendant provided improper stage setup and safety inspections, which failed to conform to an accepted standards [stet] of care, inattentive supervision for the claimant and lack of foresight, resulting in insufficient safety and failure to protect the plaintiff against a known risk of injury. The Defendants [stet] were obligated to anticipate the potential dangers posed by the inappropriate placement of an obstacle (stage monitor), insufficient lighting and for not taking any and all safety precautions necessary to ensure the safety and wellbeing of the Plaintiff and all other guests on August 16, 2018. Indeed it appears the sound quality and the performers safety were a priority over cruise passenger safety.

Furthermore, in my opinion the Defendant, first allowed the continuous placement of an obstacle on the dance floor knowing that former guests have tripped over speakers in and around on similar dance floors and rooms on ships but did not warn their guests either by appropriate signage, verbal warning from entertainers or by other warnings such as cones around the corners of the stage monitor, raising stage monitor[s] making them more visible which left a safety hazard by not doing so. Ultimately, this led to the Plaintiffs [stet] fall on August 16, 2018. [ECF No. 97-2, p. 13]. c. Wankel's Academic and Experience-Based Background and Purported Expertise

Wankel has a bachelor's degree in Business Administration and a master's degree in Public Administration. He has more than thirty-five years of experience in recreation and education planning, administration, maintenance park and playground safety. He served as the Commissioner of the Town of Islip Department of Parks, Recreation and Cultural Affairs, for twelve years, as well as the Deputy Supervisor of the Town of Islip. In addition, he was the Commissioner of Parks, Recreation and Conservation for Suffolk County, NY for more than three years.

Wankel was...