Maritime Expert’s Opinion Challenged for Relying on Sworn Lay Witness Testimony

Court: United States District Court for the Southern District of FloridaJurisdiction: FederalCase Name: Pacinelli v. Carnival Corp.Citation: 2019 U.S. Dist. LEXIS 120626

The plaintiff retains a maritime expert to opine on causation following a trip and fall incident on a cruise ship. The defendant, however, challenges the expert as unreliable because much of his testimony relied on sworn statements from lay witnesses. The court explains that the defense had unsuccessfully downplayed the expert’s qualifications and that his opinions regarding cruise companies’ duty of care were well-reasoned and valuable, and thus, permissible.

Facts

The plaintiff was a passenger on the defendant company’s cruise ship when he slipped while boarding a tender boat from the cruise ship at the harbor. The plaintiff argued that while boarding, the defendant neglected to use a gangplank and that passengers had to step on to the tender boat straight from the cruise ship. The plaintiff fell when the tender suddenly lurched away just as he stepped out. He fell forward and landed with one knee on the tender and his other leg dangling between the vehicles. The tender then rocked back, crushing his leg against the side of the cruise ship. The plaintiff seriously injured his ankle and sued for negligence. He retained a maritime expert witness to testify about causation.

The Plaintiff’s Maritime Expert Witness

The plaintiff’s maritime expert witness had extensive maritime experience in the safety and operation protocols of naval vessels. The expert had been active in all areas of marine trade since 1971 and had been directly involved in the training, operation, and safety protocols for cruise vessels in the Bahamas, Hawaii, Caribbean, Florida, and various global locations. He worked as an operations and safety consultant for a variety of maritime companies and also operated his own vessels.

The maritime expert relied on sworn testimony from the plaintiff to form his opinion that safety protocols may not have been observed. The plaintiff testified that there were only two crew members present at the time of the incident and that he was not physically helped in disembarking the cruise ship. The plaintiff further testified that there was nothing he could hang on to on the tender boat while he tried to disembark and that after he slipped, crew members tightened the ropes between the boats to stabilize the two vessels.

Discussion

The defendant claimed that, because his work experience was restricted to diving emergencies and not to cruise disembarkation operations, the expert was unqualified to determine whether the defendant had violated its duty of care. The defendant also argued that the expert’s opinions were based solely on his understanding of the plaintiff’s testimony and the testimony of passenger witnesses. The defendant asserted the expert could not be regarded as an expert by merely acting as a mouthpiece for lay witness testimony.

The defendant also argued that his opinions were conclusive statements from self-serving interviews with other passengers and that there was nothing technical, specialized, or scientific about the maritime expert’s views. The defendant also argued that the opinions were irrelevant because they were no different from the closing arguments. On these grounds, the defendant claimed that the expert was unhelpful to the trier of fact.

The court noted that the expert was qualified to testify because though the defendant tried to limit his qualifications solely to diving emergencies, his history, experience, and background with safety protocol operations undermined that argument. Furthermore, the expert relied on facts presented on oath and compared the alleged actions of the defendant’s crew to how a cruise ship took reasonable care in aiding passengers to disembark. The court could not distrust the expert’s findings at this stage of the case.

The court also noted that the expert’s statements on industry standards for cruise ship safety protocols were beyond the knowledge of a layperson and helped establish the applicable standard of care. His opinions as to the root of the plaintiff’s injuries were also helpful because they explained how the stability of the tender boats and training of crew members complied with industry standards. However, the court prohibited the maritime expert from testifying that there was a breach of the since it was an impermissible legal conclusion.

Ruling

The defendant’s motion to exclude the maritime expert witness was granted in part and denied in part.

Key Takeaways for Experts

This case demonstrates the attacks on your CV that may come from the opposition but it is the court’s determination that really counts. Also, be careful to only opine on what you can definitively support with evidence to avoid veering into impermissible legal conclusions.