A cruise line recently brought a motion to strike and preclude the testimony of a plaintiff’s expert witness in a personal injury action in which she sought to recover for physical injuries sustained as a result of an accident onboard the ship.
Plaintiff claimed that Defendant was negligent in allowing ping pong balls to collect on a roller skating rink where Plaintiff was roller skating. Plaintiff fell and broke her ankle. She alleged that there was no netting to prevent foreign objects from falling on the skating rink surface or a warning sign to alert for ping pong balls falling on the skating surface. Plaintiff also claimed that the ship’s crew didn’t remedy the dangerous condition.
U.S. Magistrate Judge Edwin G. Torres wrote in his opinion that Defendant’s motion sought to exclude the opinions and testimony of Plaintiff’s liability expert because he was unqualified to testify in the case and his methodology — or lack thereof — wasn’t sufficiently reliable. According to Defendant, the expert proffered the following opinions in his report:
- Passengers aboard an oceangoing vessel are afforded a heightened duty of care in protecting them from physical harm.
- A ping pong ball on the rink created a hazard for skaters.
- The crew on board did not take any action to remove the ping pong ball.
- Plaintiff suffered injury when she fell while attempting to remove a ping pong ball which is reflected in a video of the incident.
- Netting was available and should have been lowered to prevent a ping pong ball from being on the skating rink.
Defendant argued that the expert’ opinions were unhelpful to the trier of fact because they failed to go beyond the knowledge of the average layperson and contained conclusory statements that mirrored attorney’s arguments. Defendant also claimed that the expert never reviewed any of the discovery responses in the case and didn’t inspect the location of the incident, any of the equipment involved, or the ping pong balls and nets.
An expert may be qualified to testify in multiple ways: ‘” by knowledge, skill, experience, training, or education'” and “not necessarily unqualified simply because her experience does not precisely match the matter at hand,” Judge Torres wrote, quoting an earlier case.
Defendant claimed that there was no support that the expert had any knowledge, skill, experience, training, or education on whether the ping pong balls, in this case, were a danger to skaters. Plaintiff never disclosed the expert’ curriculum vitae and that his only relevant experience was found in a few sentences of his expert report. Defendant also argued that there was no evidence as to when or how long the expert worked as a Chief Officer on passenger ships or how this position related to his being an expert on whether ping pong balls cause roller skaters to fall.
Judge Torres opined that the court’s inquiry under Rule 702 with respect to qualifications concerns whether the expert is qualified to testify competently regarding the matters he intends to address. After an independent review of the expert’s report and Plaintiff’s expert disclosures, the judge agreed that there was no record evidence that the expert was qualified to render an expert opinion in the case. The only evidence of the expert’s qualifications was that he previously served as a Chief Officer on unidentified passenger ships. There was no evidence of: (1) his employers in the marine industry’ (2) his job duties; (3) his length of employment in the marine industry; (4) his level of training and education; or (5) the connection between his qualifications and the facts of this case.
Defendant also argued that the expert’ opinions and testimony were inadmissible because they were unsupported by any reliable methodology and failed to rely on a single study, article, or authority as support. Judge Torres explained that the four non-exhaustive factors used to evaluate the reliability of a scientific expert opinion include:
- whether the expert’s theory can be and has been tested;
- whether the theory has been subjected to peer review and publication;
- the known or potential rate of error of the particular scientific technique; and
- whether the technique is generally accepted in the scientific community.
Defendant claimed that the expert’ experience failed to provide “sufficient foundation rendering reliable any conceivable opinion the expert may express.” Defendant contended that it must be stricken for failing to meet the requirements under Daubert. The Court agreed.
The expert report simply listed a number of conclusory statements without any foundation. He failed to demonstrate whether he performed any analysis nor did he indicate whether his opinions were subject to any verification or peer review, or how his experience specifically informed his opinions. Neither his report nor his testimony referenced a single study, article, or authority to support his opinions. It appeared that the expert only reviewed video footage and either read deposition testimony or was told about it before producing his expert report, Judge Torres said.
Nothing in the expert’s opinions was “tethered to any supporting materials or sources” as there were no studies, peer-reviewed materials, treatises, sources, data nor anything else underlying his views. Instead, the Court found his opinions to be conclusory statements regarding Defendant’s fault that weren’t tied to any methodology. The judge found that the expert also didn’t provide a sufficient basis for his opinions, especially in light of the fact that they were legal conclusions. For these reasons, the expert’s report didn’t satisfy Daubert. As such, Defendant’s motion to strike and preclude was granted.