Maritime Safety - Cruise ship deck United States Magistrate Judge Edwin G. Torres of the Southern District of Florida recently heard a cruise line’s (“Defendant”) Daubert Motion to Strike the Plaintiff’s expert witness.

This case stems from the death of a passenger aboard Defendant’s cruise ship. Decedent and his ex-wife (Plaintiff) went on a cruise to Cozumel, Mexico. During the first day at sea, in a span of 12 hours, 22 alcoholic beverages were purportedly served to Plaintiff and the Decedent—including 15 Long Island Iced Teas, with 2.5 ounces of alcohol per drink. At midnight, Decedent and Plaintiff were in the casino bar when Decedent fell off his barstool due to his intoxication. After the fall, Plaintiff and their two friends purportedly told the bartender to stop serving the Decedent, but he allegedly became aggressive and requested the bartender to serve another drink. The bartender served the Decedent another Long Island Iced Tea. Roughly an hour later, Decedent fell over his cabin balcony railing, striking his head on the deck below. Ship security found him dead on the deck. Decedent’s blood alcohol content was .369 g/dl, over four times the legal limit. Plaintiff contends that Defendant negligently over-served Decedent alcohol and brought a negligence claim under the Death on the High Seas Act.

Defendant argued that Plaintiff’s expert presented himself as the maritime safety expert, but was allegedly unqualified to render any opinions in this case because the subject matter was far beyond issues of safety and security. Defendant further argued that the expert’s bare anecdotal opinions weren’t supported by any methodology and contained conclusory statements that simply mirrored attorney’s arguments. Defendant sought to strike the maritime safety expert because he failed to satisfy any of the requirements of Rule 702, 703, and Daubert.

In addition, Defendant told the Court that the maritime safety expert wasn’t a stranger to Daubert challenges… his testimony had been frequently limited or stricken by courts in the Southern District.

The maritime safety expert’s experience was primarily in law enforcement, and at the beginning of his career, he became a qualified seaman in the Coast Guard, certifying in STCW-95. This is a form of training required by all crew members servicing passengers on cruise vessels and allows service-oriented crew members to interact with passengers and spot human behavior problems.

He started his career in the maritime industry in 1991 as a chief shipboard security officer for Defendant’s cruise line. As a chief security officer, he oversaw training new crew members, training on shipboard policies and procedures, overseeing the shipboard safety of all passengers and crew, as well as ensuring that the shipboard management system was followed. He served as safety instructor, dive instructor, swimming instructor, and a new employee instructor under the executive committee. He also taught new cruise ship employees STCW-95 courses that had to do with human behavior, drugs, fights, passengers requiring immediate detention, and passengers that needed to be monitored. The expert was also a security officer for two other cruise lines. In addition to his experience in cruise line safety and security, the maritime safety expert served as a police officer in Miami, specializing as a drug, alcohol and recognition officer. For the past nine years, he exclusively engaged in expert work and consulting. He also served as an expert or consultant in cases with Plaintiff’s counsel on 40-60 prior occasions.

In supporting its motion, Defendant first argued that the expert’s opinions won’t assist the trier of fact, contending that his opinions were no different than an attorney’s closing arguments because they merely opined on whether the Defendant breached its duty of care. This, Defendant argued, purportedly attempted to usurp the role of a jury and went far beyond the realm of an admissible expert opinion.

Plaintiff replied that the expert’s testimony was crucial: (i) it would help explain the maritime regulations to the jury and how such regulations correlate with the details of this case; (ii) his testimony and insight as to the responsibilities and training of shipboard bartenders went beyond the knowledge of a layperson and what is required by Defendant’s policies and procedures; and (iii) the expert purportedly had intimate knowledge concerning the required training on cruise ships and how crew members spot human behavior problems stemming from intoxication.

However, Judge Torres found these arguments somewhat unpersuasive because the expert’s opinions were replete with impermissible legal conclusions. Nearly every paragraph in the maritime safety expert’s report contained statements that “[Defendant] is at fault” for failing to meet certain duties or procedures with respect to the Decedent’s death. The judge noted that the Eleventh Circuit has made clear that legal conclusions or statements instructing what conclusion the jury should reach are impermissible under Daubert.

The expert’s report boiled down to eight conclusory legal statements that Defendant was at fault for violating its own internal policies and procedures regarding alcohol, security, and intoxicated passengers. Therefore, the judge held that he couldn’t testify that Defendant was at fault, that it breached its duty of care, or failed to follow the proper procedures to protect an intoxicated individual. The statements in the expert report were to be stricken because they were ultimately legal conclusions. To this extent, Defendant’s Motion was granted.

However, Judge Torres held the maritime safety expert’s testimony and expert report on industry regulations for cruise safety practices were admissible because it went “beyond the common knowledge of the average lay person” and was “helpful in establishing the applicable standard of care for Plaintiff’s negligence claim.” Further, the judge held that the expert could testify about Defendant’s detailed policies and procedures that were in place to prevent the over-service of alcohol to customers, including those procedures for what to do in the event of dealing with an intoxicated passenger. Both subjects would be helpful to the trier of fact because they offered “more than what the lawyers for the parties can argue in closing arguments.” To that extent, Defendant’s Motion was denied.

Next, Defendant argued that Plaintiff’s maritime safety expert wasn’t qualified to give any expert testimony or opinion on the Decedent’s level of intoxication. Defendant argued the expert conceded he was unqualified to render an expert opinion on the Decedent’s level of intoxication at trial and had no experience in toxicology, responsible alcohol vending policies, or medicine.

Plaintiff disputed this and claimed the expert was expected to testify at trial, inter alia, of Defendant’s failure to identify, observe, and protect an overly-intoxicated passenger, as well as its failure to adhere to its own policies, procedures and SMS regarding the responsible service and sale of alcohol to passengers. In addition, the expert was expected to testify regarding Defendant’s crewmembers’ failure to adhere to the training under STCW-95. Finally, Plaintiff contended that he was expected to testify regarding the Decedent’s level of intoxication on the night prior to the Decedent’s passing because they were purportedly well within his expertise in marine safety and alcohol recognition.

Again, the court found Plaintiff’s arguments unpersuasive because the expert’s opinions and testimony were linked to a toxicology report that found the Decedent’s blood-alcohol concentration was .369 on the night of his death. The maritime safety expert testified that he was qualified to “give opinions regarding [the Decedent’s] actual level of intoxication,” even though he conceded that he wasn’t a toxicologist. And while he claimed to be an expert in “recognizing the level of intoxication of individuals in the field” due to his law enforcement background where he observed and arrested people for driving under the influence, he obviously didn’t physically observe the Decedent in this case to know his level of intoxication. The expert also testified that he didn’t know how much alcohol the Decedent consumed other than a “tremendous amount” (which he defined as “way too much”), and could only approximate that the Decedent may have had “six, seven, eight, nine drinks.”

Based on the expert’s deposition, Judge Torres held that it was “abundantly clear” that he didn’t have the requisite qualifications to opine with any level of expertise on Decedent’s level of intoxication in this case, aside from the fact that the Decedent consumed “too much” alcohol. None of his statements were scientific in any way, and while he argued he had an extensive background in law enforcement and security, he never explained how this qualified him to opine on the intoxication of the Decedent—particularly when he wasn’t onboard the cruise ship at the time of the Decedent’s death. Defendant’s Motion was granted.

In summary, Plaintiff’s expert witness was only permitted to testify about: (1) the Defendant’s policies and procedures that were in place to prevent the over-service of alcohol to customers; (2) the Defendant’s procedures for what to do in the event of dealing with an intoxicated passenger; (3) the required training on cruise ships and how crew members spot human behavior problems stemming from intoxication; and (4) maritime regulations that correlate with the details of this case.