3 YEAR OLD CRUISE SHIP PASSENGER HAD ARM CAUGHT IN CARNIVAL CRUISE SHIP ELEVATOR DOOR. CARNIVAL MOVED FOR SUMMARY JUDGMENT WHICH WAS DENIED BY THE DISTRICT COURT BASED ON RECORD EVIDENCE THAT CARNIVAL FAILED, INTER ALIA, TO ROUTINELY INSPECT THE ELEVATOR. ALSO, COURT HELD THAT ELEVATOR DOOR WAS NOT AN OPEN AND OBVIOUS CONDITION.
2014 WL 4826758
Only the Westlaw citation is currently available.
United States District Court,
Prachi GANDHI, individually as parent and natural guardian of AG, a minor, Abhishek Gandhi, individually, as parent and natural guardian of AG, a minor, Plaintiffs,
CARNIVAL CORPORATION, d/b/a Carnival Cruise Lines, Defendant.
No. 13–24509–CIV. | Signed Sept. 25, 2014. | Filed Sept. 29, 2014.
PROCEDURAL POSTURE: THIS CAUSE came before the Court on Defendant’s Motion for Summary Judgment.
Plaintiffs filed the instant action seeking damages for negligence after Plaintiffs’ daughter was injured in an elevator on Defendant’s cruise ship. The Court has carefully reviewed the record, the parties’ briefs, and the applicable law.
OVERVIEW: Plaintiffs traveled on Defendant’s cruise ship, the Legend, in December of 2012 with their three-year-old daughter, A.G. It was a family trip, which included A.G.’s uncle. While aboard Elevator 6 of the Legend, going from deck nine to deck eight, A.G. was injured after her arm, past her elbow, was caught in the gap between the elevator door and the frame of the elevator car as the elevator doors opened. A.G. was near the front of the elevator with her uncle, and A.G.’s father was standing behind them, standing with a stroller. A.G.’s uncle and father did not see exactly what happened at the moment A.G. was injured. A.G.’s started screaming, and as her father and uncle looked down at her, they saw that her arm was stuck between the elevator door and the front of the elevator, and they saw that she was bleeding. Other passengers came to help, eventually taking a piece of wood to wedge the gap and freeing A.G.’s arm. When Defendant’s staff surveyed the scene, the door was bent and there was blood on the door and on the floor. A.G. was treated while on the ship, and her parents sought treatment for her after the voyage ended. The instant lawsuit followed. Plaintiffs contend that Defendant breached its duty (a) by failing to warn of the danger of an elevator’s gap, and (b) by negligently maintaining the elevator on which Plaintiffs’ child was injured. Defendant argues that it had no duty to warn cruise passengers about the danger of getting trapped in an elevator door gap because the risk is open and obvious, and because it had no actual or constructive notice that the particular elevator constituted a dangerous condition. Defendant also argues that Plaintiffs have not shown sufficient evidence of breach because no one saw what happened at the moment when the elevator injured A.G., and measurements taken immediately after the accident showed that the elevator was in compliance with code specifications and the manufacturer’s recommendations. Court found that genuine issues of material fact exist as to whether the gap between the elevator’s frame and the door is an open and obvious condition, obviating the duty to warn. The record does not indicate that it was evident at the time A.G. entered the elevator with her father and uncle that the gap between the elevator door and the elevator frame was large enough to pose a risk to A.G. Though it may be obvious that a gap between an elevator door and frame may pinch a child’s hand and lead to a child’s lesson learned, paid with a few tears, that obviousness does not extend to a child’s entire arm getting jammed in an elevator gap. The Court cannot find that, as a matter of law, that the elevator gap in this case constitutes an open and obvious condition which obviates a duty to warn. To the issue of notice, court held that Plaintiffs submitted sufficient evidence that, when taken in the light most favorable to them as the non-moving parties, creates a genuine issue of material fact as to whether Defendant had actual or constructive notice about the condition of the elevator.
OUTCOME: Summary Judgment motion denied.
IN CRUISE SHIP PASSENGER INJURY ACTION WHERE ONE PASSENGER PUSHED DOWN ANOTHER PASSENGER, PROPOSED EXPERT TESTIMONY REGARDING CROWD CONTROL WAS STRICKEN FOR FAILURE TO COMPLY WITH DAUBERT AS THE COURT HELD THE PROPOSED TESTIMONY WAS NEITHER RELIABLE, NOR HELPFUL.
2014 WL 4832297
United States District Court,
Pilar UMANA–FOWLER, Plaintiff,
NCL (BAHAMAS) LTD., Defendant.
No. 13–23491–Civ–WILLIAMS. | Signed Sept. 18, 2014. | Filed Sept. 19, 2014.
PROCEDURAL POSTURE: Defendant NCL moved to preclude expert testimony.
OVERVIEW: In cruise ship passenger negligence action, Defendant NCL moved in limine to preclude plaintiff’s proposed expert testimony regarding crowd control. Plaintiff’s theory is that her injury resulted from NCL’s lack of crowd control and supervision. Defendant asks the Court to exclude the expert on the grounds that he is not qualified to competently testify regarding the opinions rendered in his report, that his methodology is not sufficiently reliable, and that his testimony would not assist the trier of fact. Expert testimony must be both reliable and relevant. U.S. v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004). The proffered expert must be an expert in the subject matter that he proposes to testify about. Bowers v. Norfolk S. Corp., 537 F.Supp.2d 1343, 1376 (M.D.Ga.2007) (“Rule 702 and Daubert still require that the area of the witness’s competence match the subject matter of the witness’s testimony.”). Court held that the record before the Court demonstrated the proposed expert had never been qualified as a crowd control expert in the Southern District and had never offered an opinion in a case where a lack of crowd control led to pushing that caused an injury. The question of whether an expert’s testimony is reliable depends on the facts and circumstances of the particular case. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 158, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The party offering the expert bears the burden of establishing reliability and helpfulness. Frailer, 387 F.3d at 1260. Proposed expert testimony must be supported by appropriate validation, what the Supreme Court has characterized as “good grounds based on what is known.” Id. at 1261 (quoting Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). A court cannot admit an expert who simply states that he used the “scientific method” to reach his conclusions; more is required. See Hughes v. Kia Motors Corp., Case No. 13–10922 at 19 (11th Cir. September 12, 2014) (affirming district court’s exclusion of expert testimony).
Similarly, an expert cannot rely on “experience” without explaining in detail how the experience and other materials consulted support the opinion rendered. Frazier, 387 F.3d at 1265. Because the Court’s “gatekeeping function requires more than simply taking the expert’s word for it,” the burden is on the party offering the expert testifying based on experience “to explain how that experience led to the conclusion he reached, why that experience was a sufficient basis for the opinion, and just how that experience was reliably applied to the facts of the case.” Id. at 1261, 65. Courts are cautioned not to admit speculation, conjecture, or inference and a court properly excludes expert opinion when a “leap from data to opinion [is] too great.” Hughes, Case No. 13–10922 at 28; Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1202 (11th Cir.2002). Helpful expert testimony is admissible because it illuminates matters beyond the understanding of the average lay person. Frazier, 387 F.3d at 1262. Expert testimony that “offers nothing more than what lawyers for the parties can argue in closing arguments” generally will not assist the trier of fact and will be excluded. Id. at 1262–63. An expert witness may testify as to his opinion on an ultimate issue of fact, but he “may not testify as to his opinion regarding ultimate legal conclusions.” United States v. Delatorre, 308 Fed.Appx. 380, 383 (11th Cir.2009). Furthermore, merely telling the jury what result to reach is unhelpful and inappropriate. Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir.1990). Based on this law, Court held that proposed expert testimony was neither reliable nor helpful for the jury.
OUTCOME: Motion granted. Proposed Expert excluded.