One of the raging battles in the litigation war injured passengers are forced to wage against cruise lines involves the expert witnesses. How and when the Plaintiff discloses the experts to the cruise line can often mean the difference between winning or losing. The rules that govern the use of experts in Federal Court, where cruise ship passenger accident and injury cases are heard, are complex and unforgiving. Take for instance the case of Joyce Higgs, which is being handled by another maritime law firm.((Joyce D. Higgs v. Costa Crociere S.p.A. Company. Case N. 15-60280-CIV-COHN/SELTZER. Entered on FLSD Docket 01/12/2016.)) Ms. Higgs, an elderly passenger, was injured after tripping over a cleaning bucket in the buffet line aboard the Costa Luminosa during a Christmas cruise. Costa denied that she fell over the bucket, and she filed a lawsuit against Costa, which is owned by Carnival Cruise Lines. Her suit was filed nearly two years ago and is still pending.
HOW TO PROVE AN INJURY CLAIM AGAINST A CRUISE LINE
Under Federal maritime law, ship owners owe the duty of exercising “reasonable care” towards passengers.((Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959).)) However, whenever a passenger claims that he or she was injured by a dangerous condition on a cruise ship, this “standard of care” requires that before a cruise ship can be held accountable for the injury, it must be shown that the cruise line actually created, knew, or should have known of the dangerous condition,((Long v. Celebrity Cruises, Inc., 982 F. Supp. 2d 1313, 1317 (S.D. Fla. 2013).)) which in this case was the cleaning bucket on the buffet floor.
Claims of negligence against a cruise line like Costa require the injured passenger to prove the following:
(1) the defendant had a duty to protect the plaintiff from a particular injury;
(2) the defendant breached that duty;
(3) the breach actually and proximately caused the plaintiff’s injury; and
(4) the plaintiff suffered actual harm.((Chapparo v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012)))
Moreover, in cases where the plaintiff alleges that the defendant created the dangerous condition, the plaintiff must prove that the defendant “created the allegedly dangerous condition sufficient to constitute a breach of its duty of reasonable care.”
EXPERT WITNESSES IN CRUISE SHIP ACCIDENT LITIGATION
In this case, the Plaintiff initially identified Randall Jaques as her liability/maritime safety expert.
Ms. Higgs retained Mr. Jaques to offer expert opinions as to the cause of her accident and injuries and Costa’s compliance with industry standards concerning leaving cleaning buckets on the floor. In Federal Court cases against cruise lines, the Plaintiff is required to serve the
Defendant with expert reports, known as a Rule 26 Reports, which have specific requirements as to what they must contain and strict timing deadlines as to when they have to be provided to the other side.
In Mr. Jaques’s report, he outlined his opinions based upon his inspection aboard the Luminosa, a review of the accident report, pictures of the area where the accident occurred, the Complaint, a letter from the Costa Legal Office regarding the accident, and “USPH recommendations or alert notifications”; his report also detailed his personal knowledge and experience.
He expressed four opinions about the accident:
Opinion 1: Buckets of soapy water should not be left unattended in the path of unsuspecting passengers.
Opinion 2: Costa Crociere had apparently adopted a general policy of being deliberately indifferent to the level of safety expected within the industry.
Opinion 3: Had Costa assisted Ms. Higgs with transporting her food from the buffet, she never would have fallen.
Opinion 4: Costa violated USPH regulations, which do not allow for buckets to be left unattended because of the risk of contamination.
What an expert attaches to the report–in addition to the substance of what the report contains–is critically important. According to court records, Mr. Jaques’s report, which detailed his personal background, did not include a copy of his resume or Curriculum Vitae (CV), a list of his publications, the cases in which he testified as an expert, or his compensation.
Not surprisingly, Costa moved to strike the report and prevent him from giving any testimony in the case. Costa claimed that his report did not comply with the strict technical requirements of the Federal Rules of Civil Procedure. Mr. Jaques then supplemented his report to include those items as well as additional opinions, and then claimed that Costa’s motion to strike him was moot.
The Federal rules also provided for sanctions for failing “to provide information or identify a witness as required by the Rules . . . preclud[ing] a late-disclosing party from using that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” However, if expert information is disclosed late by a party, it is that party’s burden to show that the late disclosure is substantially justified or harmless to the other side.((Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir. 2009) (unpublished).)) The exclusion of a party’s experts is a severe sanction that is considered to be inappropriate provided the opposing party is not prejudiced by the non-disclosing party’s actions.((Zaki Kulaibee Establishment v. McFliker, No. 08-60296-CIV, 2011 WL 1327145, at *4 (S.D. Fla. Apr. 5, 2011) (citations omitted).))
Gatekeeping: Federal Rule 702 and Daubert
Rule 702 of the Federal Rules of Evidence governs the admission of expert testimony in Federal Cases, and Federal judges are supposed to act as “gatekeepers,” who 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). ))
This gatekeeping function is designed to keep litigants from presenting juries speculative, unreliable expert testimony so that it does not reach the jury under the mantle of reliability that accompanies the title of expert testimony.
To meet the gatekeeping requirements, the court must consider three prongs:
(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; and
(3) the testimony will assist the jury, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
Even if the expert’s testimony satisfies the three prongs, that does not mean it will be admitted; it may be excluded if it is “irrelevant” or if “its probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, [or] misleading the jury.”(( Fed. R. Evid. 403.))
In this case, the court found that much of Mr. Jaques’s proffered testimony satisfied the requirements of admissibility—qualification, reliability, and helpfulness, and that his knowledge, skill, experience, and training qualify him to render an expert opinion about industry standards for safety practices aboard cruise ships. They permitted him to offer expert testimony regarding industry standards for cruise ship safety practices and causation. However, the court limited his testimony
The second admissibility requirement for expert testimony in a cruise ship is “reliability,”(( Daubert, 509 U.S. at 589.))
and the “reliability” of an expert’s opinion is considered to be a different criterion than “persuasiveness.” In determining the reliability of an expert’s methodology, judges should consider the following four things but may also consider additional factors:
(1) whether the expert’s methodology can be tested;
(2) whether the expert’s scientific technique has been subjected to peer review and publication; (3) whether the method has a known rate of error;
(4) whether the technique is generally accepted by the scientific community.
The one hard and fast rule I have seen Federal judges apply in excluding expert testimony seems to be that experts are not permitted to rely solely on their professional experience without explaining in detail how their experience actually supports the opinion.
In this case, Costa Cruises argued that Mr. Jaques’s opinions were not based on a sound methodology, because he had failed to interview Ms. Higgs; neither did he review her deposition, take any measurements of the incident area, mention any publications or experiments used to support his opinions, nor cite maritime safety standards with specificity. Costa also contended that Mr. Jaques’s opinions about causation are unreliable because they presuppose that she tripped over a bucket, which is a disputed fact.
The strength of of an expert’s opinion is usually a determination for the jury, not the judge. In other words, the jury should determine the weight and reasonableness of an expert’s opinion, which can and should be subject to and challenged by a vigorous cross examination.
IS THE EXPERT’S TESTIMONY HELPFUL?
The third admissibility requirement in cruise ship passenger injury claims is whether or not the expert’s testimony would be “helpful” to a jury. Expert testimony is considered helpful “if it concerns matters that are beyond the understanding of the average lay person.”((Frazier, 387 F.3d at 1262. )) Expert testimony does not help a jury if it offers “nothing more than what lawyers for the parties can argue in closing arguments.” While an expert may testify as to an ultimate issue of fact, he or she is not permitted to offer opinions on “ultimate legal conclusions.”(( Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1112 n.8 (11th Cir. 2005).)) In other words, an expert is not able merely to tell the jury what result to reach.
Costa argued that Mr. Jaques’s proffered testimony would not help the jury because it was not based on any specialized knowledge and contained impermissible legal standards and conclusions. In addition, Costa contended that his opinion that Ms. Higgs’s “injuries were the result of not being assisted by dining room attendants” and hazards in her path was not helpful because it required an unsupported “leap of faith.”
As a lawyer who sues cruise lines, I believe the trial court correctly concluded that Mr. Jaques’s anticipated testimony on the cruise line’s industry standards for cruise ship safety practices was beyond the common knowledge of the average lay person, and would be helpful in establishing the applicable standard of care for the injured passenger’s negligence claim. Additionally, Mr. Jaques’s opinions as to the cause of her injuries, and the extent that Costa failed to comply with industry standards would also be helpful to the jury.
Unfortunately, the Court agreed with Costa that Mr. Jaques’s expert report contained some “impermissible legal conclusions” as it found them not to be helpful to the jury. Specifically, the court ordered that Mr. Jaques could not testify that “Costa is at fault” or that its crew was “careless.” Mr. Jaques was also prevented from testifying as to the legal standard that Costa was “legally required to exercise at least ‘reasonable care the safety’ to Ms. Higgs.”
This case highlights the difficult, complex, and confusing procedure that injured plaintiffs, their lawyers, and their experts must comply with to prove a cruise line is legally responsible for a passenger’s injuries in Federal Court.
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