Dram Shop Lawsuits: The Best Experts To Retain

In a legal context, the phrase “dram shop” refers to establishments that sell alcoholic beverages, including bars, restaurants, taverns, bowling alleys, and the like. A “dram” is a unit of measurement in the apothecary system of measurement which can refer to either volume or mass. A dram is equal to one 18th of a fluid ounce. In the early 19th century, “dram shops,” began to refer to establishments that sold alcoholic beverages by the pour.

Almost every state has its own dram shop laws, which govern the civil liability establishments bear when there is damage to property, injury, or death, based on:

• Serving a visibly intoxicated person
• Serving a person who is not yet of legal drinking age
• The person subsequently causes the damage, injury, or death

Types of Dram Shop Cases

There are actually two types of dram shop cases: first-party dram shop cases, and third-party dram shop cases. In a first-party dram shop case, the injured person is the person who was over-served. If they leave the establishment and sustain injuries to themselves, they may choose to pursue a first-party dram shop claim against the business that overserved them. In many states, parties are limited in their ability to sue as a “first party” under the dram shop laws. For public policy reasons, those states have declared only minors can pursue first-party dram shop claims.

Third-party dram shop suits are brought by a third party who was injured due to another person’s over intoxication. For example, if person A is over-served, leaves the establishment, and speeds, hitting and killing person B, then person B’s family has a third-party dram shop claim against the establishment. They may also sue A individually.

Issues in Dram Shop Cases

There are all sorts of issues that may present themselves in dram shop cases. These can include:

• Was the person who caused the injury “visibly intoxicated?”
• How many drinks did the person consume at the establishment, and how drunk would that make them?
• Did the person who caused the injury consume alcohol elsewhere in addition to the identified establishment?
• Was the intoxicated person actually the cause of the accident?
• Were the injured parties really as injured as they claim?

The type of expert needed will be determined in large part by the specific facts of the case. There are, however, some specialty experts in dram shop cases.

Qualifications of Dram Shop Experts

Both plaintiffs and defendants may need the services of a dram shop expert. For example, one may need a dram shop expert to testify about restaurant industry standards. They may also testify about whether the steps taken by the establishment, owner, server, or other staff were reasonable given the circumstances.

An expert familiar with restaurant industry standards can be worth their weight in gold during the discovery process. The expert’s understanding of what documents are routinely used in the industry can be essential during discovery and critical to the success of the case.

Depending on the issue at hand, a dram shop expert can also testify about the following:

• Security procedures
• Liquor licensing
• Liquor license compliance
• Liquor law enforcement
• Premises liability
• Risk assessment
• Police procedures
• Negligence

A toxicologist may testify about intoxication and impairment as well as the difference between intoxication and visible intoxication, an individual’s tolerance, and how that may impact a person’s intoxication level. With the proper information, a toxicologist may also be able to provide testimony about blood alcohol concentration (BAC) reconstruction.

Case Example

In Broberg v. Carnival Corporation, United States District Court, S.D. Florida (June 11, 2018) (Slip Copy 2018 WL 4778457) a United States Magistrate heard cross motions to strike the other side’s expert(s) under the Daubert standard.

The plaintiff, Karl Broberg, was represented as both an individual and as the administer of the estate of his deceased wife, Ms. Samantha Broberg. Ms. Broberg was a passenger on a Carnival Cruise Line ship on May 12, 2016. In the early morning hours of the 13th of May, Ms. Broberg apparently used a cruise ship lounge chair to boost herself up onto the railing of the ship. She subsequently fell overboard in the Gulf of Mexico. Her body was never recovered. The plaintiff alleged that Ms. Broberg was overserved, asserting she had 19 drinks in a 13-hour span.

The plaintiff sought to exclude the testimony of the defense’s expert, and the defendant sought to exclude the testimony of the plaintiff’s experts. The Eleventh Circuit demands a “rigorous three-part inquiry under Federal Rule of Evidence 702. The court must determine:

• Whether the expert is qualified to testify competently regarding the matter she or he intends to address
• Whether the methodology relied on by the expert when reaching his or her conclusions is “sufficiently reliable” under Daubert
• If the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise so as to understand the evidence or, in the alternative to determine a fact in issue

United States v. Frazier, 387 F3d 1244 (2004)

Plaintiff Objections to Defense Expert

The defense sought to call an expert in dram shop and alcohol service. The defendant argued the expert would testify Carnival employed a responsible alcohol service program that at least met and, in some instances, exceeded the industry standard. They further asserted Carnival provided reasonable training and had policies and procedures in place to assure safe service of alcohol consistent with industry standards.

The plaintiff responded by indicating they took no issue with industry standards, Carnival’s alcohol server training, or their policies and procedures regarding the safe service of alcohol. After the argument, the defense conceded their witness would not be helpful to the trier of fact.

Defense Objections to Plaintiff’s Experts

The plaintiff sought to introduce the testimony of three experts regarding the dram shop issues. First, they introduced a dram shop and alcohol beverage regulation expert witness whose report relied solely on evidence produced in discovery, including a photo of Ms. Broberg at the bar not long before her untimely demise. The court did not believe the issues the proposed witness would testify to were so complicated the jury needed assistance in understanding the evidence and excluded the witness.

The plaintiff next sought to introduce the testimony of a toxicologist and drug safety expert. This witness’s report calculated the blood alcohol content (BAC) as well as the level of intoxication of Ms. Broberg with each alcoholic beverage she consumed, 19 in all. It also calculated her BAC at the approximate time she fell overboard. The defense sought to exclude the testimony as not helpful to the trier of fact, however, the court disagreed. The court found Ms. Broberg’s BAC as well as the attendant physiological manifestations one would exhibit at a given BAC level essential to the case. Adding the fact that Ms. Broberg’s body was not recovered, the methodology would be particularly helpful for any potential finding of the defendant’s potential negligence.

Finally, the plaintiff sought to introduce an expert who calculated “based on available data, … a person going overboard from a [Carnival] ship is twice as likely as the industry average to have had alcohol play a role.” The court ruled the expert qualified under Daubert but limited the expert’s testimony to the foreseeability of falling overboard as it correlates to the overconsumption of alcohol.

Case Result

The case went to trial in January of 2019. The plaintiff, of course, asserted Ms. Broberg was intoxicated. Carnival responded they did not know Ms. Broberg was dangerously intoxicated. They did not dispute that she fell off the ship. Nor did they dispute the number of drinks she consumed. While calling the case “very sad,” Federal Judge Federico Moreno ruled, “Carnival cannot be held responsible for what it did not know.”