Dram Shop Expert’s Testimony Excluded for Being Unhelpful for the Trier of Fact

Court: United States District Court for the Southern District of FloridaJurisdiction: FederalCase Name: Broberg v. Carnival Corp.Citation: 2018 U.S. Dist. LEXIS 98479

The defendant retained a dram shop expert witness. The expert opined that the defendant met or exceeded industry standards of alcohol service. However, the plaintiff argued that the court should exclude the expert’s testimony under the Daubert standard.

Facts

The plaintiff filed a lawsuit, both as the administrator of his deceased wife’s estate and individually, against the defendant. The lawsuit resulted from the death of the victim, who was a passenger on one of the defendant’s cruise ships. According to the claims, a heavily intoxicated deceased climbed onto one of the cruise ship’s outer lounge chairs. The deceased then leaned on the edge of the vessel and fell overboard.

In his lawsuit, the plaintiff charged one count of neglect under the Death on the High Seas Act on the grounds of the defendant’s superfluous supply of alcohol. The plaintiff also claimed the defendant failed to identify and report the deceased’s fall overboard. Furthermore, the plaintiff asserted that the defendant failed to launch a timely search and rescue operation. He also pled one charge of intentional emotional distress infliction.

The defendant sought to present a dram shop expert report. The expert testified that the defendant’s liquor service met or exceeded the prevalent industry standards. The plaintiff then filed a Daubert motion to exclude the expert testimony.

The Defendant’s Dram Shop Expert Witness

The dram shop expert witness had over 25 years of experience in the hospitality and liquor industry. She had worked as a CEO of a liquor wholesale operation and as a restaurant manager. The expert had also worked as a liquor permittee of federal and state licenses. Additionally, she had conducted responsible serving training programs for over 23,000 servers. The expert received her B.S. in Biology and B.A. in Education. She then completed an MBA Program for alcohol studies. She also served as an adjunct professor teaching bar and beverage management.

The defendant retained the expert to offer testimony as a dram shop expert witness in this case. The purpose of the expert’s testimony was to establish that the defendant met or exceeded industry standards of alcohol service. The dram shop expert report assessed whether the defendant delivered the appropriate liquor server instruction to its service staff. Furthermore, the report assessed whether the procedures and policies provided for the safe serving of alcohol were in accordance with the industry-wide standard of care for responsible alcohol service.

Discussion

In response to the court’s questions at the hearing, the plaintiff’s lawyer argued that he would not offer argument or evidence that:

• The defendant did not provide proper liquor server training for his service staff
• The defendant’s procedure and policies had not provided for safe beverage service
• The defendant’s procedures and policies did not fall within the responsible alcohol service standards followed in the industry

In reply, the defense counsel admitted that, in the absence of any such evidence or argument, there was no need to call the expert to the stand. As such, the defendants acknowledged that there was a lack of helpfulness of this expert. The court thus concluded that the expert’s testimony would not assist the trier of fact and therefore was inadmissible.

Ruling

The court granted the plaintiff’s motion to exclude dram shop expert witness’s testimony.

Key Takeaways for Experts

It’s important that your specialized knowledge assists the trier of fact. Experts should understand the Daubert standard to ensure the expert’s evidence is relevant. In this case, the plaintiff wanted to exclude the expert’s testimony under the Daubert standard. Your testimony should cover why your specialized expertise is needed to understand a complex topic. By doing so, the opposing counsel will have a harder time arguing that your knowledge was unnecessary.