Expert methodology was at the center of the battle of the experts in a personal injury case where the plaintiff fell from her wheelchair while disembarking Defendant Cruise Line‘s ship at a ramp within a leading into the terminal building in Miami.
Plaintiff proffered a mechanical engineer expert on the Cruise Line‘s liability for her fall. This expert was a long-time “forensic accident investigator.” He “inspected, measured, and photographed the scene of the incident,” reviewed materials from the case, safety regulations and standards, and various scientific and technical literature on biomechanics. Plaintiff’s expert dedicated 15 pages of his expert report to “biometric analysis” of Plaintiff, including “torso acceleration analysis” and “back shear force analysis.” He then provided 11 opinions on why the Cruise Line was liable for Plaintiff’s injuries.
Defendant proffered an expert to testify on its liability for Plaintiff’s fall. Its expert had more than 28 years of experience in “premises/occupational safety” and was “involved in… risk mitigation consulting with major cruise lines and resorts.” He inspected the site of the accident—the gangway ramp—and took photographs and measurements. The expert gave nine opinions as to why the Cruise Line was not at fault and was in compliance with industry safety standards.
United States District Judge James Lawrence King wrote in his opinion that Plaintiff’s expert‘s methodology was “wholly unreliable” under Evidence 702 and controlling case law. The biomechanical analyses of Plaintiff’s body, which Plaintiff’s expert labeled “ejection calculations”, didn’t directly support any of his 11 opinions—all of which were almost entirely based on anecdotal experience or speculation.
The judge found that “[n]ot only does Plaintiff’s expert confuse a backward-moving wheelchair running into an obstacle with a wheelchair ‘get[ting] struck from behind,’ but a ‘well-known phenomena by [a single expert witness]’ is not the same as a principle generally accepted by the scientific community based on repeatable peer-reviewed studies.”
Further, Judge King said that the expert’s opinion that it was technically feasible to have the gangway ramp flush with the walkway surfaces was only supported by visual observation of the jetway.
“This does not describe the type of reliable scientific methodology that can support an expert opinion under the Federal Rules of Evidence,” the judge held.
Judge King went on to agree with the Cruise Line that an opinion like how to safely push a wheelchair doesn’t satisfy the helpfulness prong of Daubert because the issue requires no specialized scientific understanding to evaluate. Likewise, Plaintiff’s expert‘s testimony that the safety regulations and standards he relied on were “applicable” to the area where the injury occurred, in this case, wouldn’t be helpful to the jury because whether the standards are legally “applicable” in the gangway area are purely legal issues. Lastly, the issue of whether the Cruise Line had prior notice was a legal issue, and it wouldn’t be helpful for Plaintiff’s expert to opine that the Cruise Line was aware of a prior incident that he considered to also be caused by “the dangerousness of the gangway ramp.” This would be informing the jury how he thinks they should rule.
Given these deficiencies, Plaintiff failed to meet her burden under Daubert regarding their expert’s reliability and helpfulness in this matter.
Judge King also held that the Cruise Line‘s expert was also unreliable. Although Defendant’s expert provided measurements such as the “purported degree measurements of the slope of the ramp,” he gave no detail as to how he arrived at the measurements, so his methodology could be tested. Further, this expert stated in his expert report that “reportedly the same disembarkation deck has been used ever since the bridge was installed,” but that the tide changes the angle of the ramp that is part of the deck. He described no repeatable scientific methodology on how the angle of the ramp he measured at his investigation related to the angle of the ramp Plaintiff encountered at the time of her accident.
As to helpfulness, Judge King found that the photographs taken by Defendant’s expert in his investigation of the accident site could be submitted into evidence so that the jury could view them, and he might be able to serve as a fact witness to authenticate the source of the photographs. However, the Cruise Line didn’t show how it would be helpful to the jury to have an expert opine on what the photographs show as far as the cause of the accident. In addition, the judge agreed with Plaintiff that Defendant’s expert‘s opinion that the Cruise Line had no notice of any unreasonably dangerous condition “invades the province of the jury”, and that the trier of fact can decide on its own whether the Cruise Line had prior notice without an expert instructing it how to rule.
As a result, the Cruise Line failed to meet its burden under Daubert to establish it’s expert’s reliability and helpfulness as an expert witness.
Thus, neither party demonstrated that the opinions of their proffered expert witness were based on a reliable scientific methodology or that their testimony would be helpful to the jury. Both experts were precluded from testifying as experts in the case.