Altidor v. Carnival Corp.
| Decision Date | 27 July 2021 |
| Docket Number | CASE NO. 20-CV-21516-COOKE/GOODMAN |
| Citation | 550 F.Supp.3d 1322 |
| Parties | Marie ALTIDOR, Plaintiff, v. CARNIVAL CORPORATION, a foreign corporation, d/b/a Carnival Cruise Lines, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Matthew Sean Tucker, Tucker Law, P.A., Fort Lauderdale, FL, for Plaintiff.
David James Horr, Ryan T. Harris, Horr Novak & Skipp, P.A., Stephanie Hurst Wylie, Sioli Alexander Pino, Valentina M. Tejera, Carnival Corporation, Miami, FL, Mitchell Issa, Barakat Law, P.A., Key Biscayne, FL, for Defendant.
ORDER ON MOTION TO STRIKE/DAUBERT MOTION TO EXCLUDE PLAINTIFF'S EXPERT WITNESSES PAUL TUCKER AND DR. MOYA
Plaintiff Marie Altidor alleges that she was injured while aboard the Carnival Sensation when the dangerous condition of the barstool she was seated on caused her to fall. [ECF No. 1]. Plaintiff retained Paul Tucker ("Tucker") as an expert witness on issues relating to engineering. She also listed her treating physician, Dr. Roberto Moya, M.D. ("Dr. Moya"), as an expert witness on issues relating to, among other topics, the cost, scope, and causation of Plaintiff's injuries.
Defendant Carnival filed a Daubert motion to exclude the entirety of Tucker's testimony and portions of Dr. Moya's testimony. [ECF No. 77]. Plaintiff filed an opposition response. [ECF No. 81]. Defendant filed a reply. [ECF No. 82]. United States District Judge Marcia G. Cooke referred the Daubert motion to the Undersigned. [ECF No. 96].
As a preliminary matter, Plaintiff asks this Court to strike Defendant's motion for failing to comply with [ECF No. 19] the Court's scheduling order. [ECF No. 81]. Although acknowledging Defendant's untimely filing, the Undersigned will nevertheless reach the merits of Defendant's motion.1 From a procedural standpoint, Defendant is skating on very thin ice and it is likely that the Undersigned will strike any further Carnival-filed untimely motions or submissions on matters referred to me in this case.
Upon reaching the merits of Defendant's motion, for the reasons discussed below, the Undersigned denies the motion in part and denies it without prejudice in part. Both Tucker and Dr. Moya, contrary to Defendant's assertions, are qualified to testify as to their core opinions. There are portions of Tucker's opinions which Defendant seeks to exclude, however, where there is an insufficient factual record for the Undersigned to determine whether the opinion is sufficiently reliable. Therefore, Defendant may raise the objection again at trial, where Judge Cooke, having the benefit of the trial record and seeing the context of the evidence as it actually unfolds, will be able to determine reliability.
The Undersigned will provide a more-comprehensive discussion of the facts and legal principles and then analyze the Daubert challenge.
The Undersigned will divide this section into three parts: (1) Factual Allegations; (2) Tucker's Expert Report; and (3) Dr. Moya's Opinions.
Celebrating her birthday, Plaintiff went on a cruise aboard the Carnival Sensation in April 2019. [ECF No. 100-1, pp. 49-50]. The cruise lasted from April 18, 2019 through April 22, 2019. Id. at 51.
On April 19, 2019, late in the evening, Plaintiff and her friend entered the Michelangelo Lounge, which is aboard the ship. Id. at 60-61. Among other things, the Michelangelo Lounge contains a bar top surrounded by multiple barstools. Id. at 62-63. After Plaintiff and her friend entered, Plaintiff's friend saw an acquaintance and stepped away. Id. at 61.
While Plaintiff's friend was speaking with other people, Plaintiff decided to sit down on one of the nearby barstools. Id. at 63. As Plaintiff was trying to sit down, the "stool top flew [her] off to the floor." Id.
As the stool "flew [her] to the ground," Plaintiff's left shoulder was struck and her left butt cheek and back hit the ground. Id. at 66. During the fall, "the top part [of the barstool] just flew off." Id. at 67. Plaintiff is unable to remember which specific portions of the barstool fell to the ground with her. Id. at 70. A Carnival employee collected the detached piece of the barstool. Id. at 74.
Carnival generated a work request with the subject described as "[b]ar chair in Michael angelo loose from base." [ECF No. 78-3]. The "type description" of the request was "carpentry, upholstery, masonry, [and] painting." Id.
During the pendency of the litigation, Carnival had Ayran Caling ("Caling"), a security officer, assist with an inspection of the barstools in the Michelangelo Lounge. [ECF No. 81-2]. During the inspection, Caling screwed and unscrewed multiple barstools to display the type of screw in each barstool and to display the manner in which they were screwed together. Id. Caling admits that he is not qualified to fix anything, and Defendant has other people to fix those kinds of problems. Id. at 23-24. Caling reassembled the barstools at the end of the inspection. Id. at 22.
Tucker's Curriculum Vitae ("CV") is lengthy and need not be cited verbatim. However, his licensures, education, professional affiliations, and work-history are important to mention. Tucker is licensed as a professional engineer in eleven different states, including Florida, and has a Bachelor of Science in Civil Engineering and a Master of Science in Structural Engineering. Additionally, he is currently pursuing a Ph.D. in Biosystems Engineering.
Since 1999, Tucker has worked as an engineer in a variety of roles, including senior engineer, structural engineer, project manager, and owner/partner of engineering companies. He is also a member of the following professional organizations: National Academy of Forensic Engineers, National Society of Professional Engineers, Florida Engineering Society, Florida Structural Engineers Associations, Tennessee Society of Professional Engineers, Structural Engineering Institute, American Society of Civil Engineers, American Society of Testing and Materials, Fenestration Glazing Industry Alliance, American Institute of Steel Construction, and American Concrete Institute.
As part of Tucker's Report, he details the factual conclusions he was able to make based on the evidence, documents, and publications he reviewed. Tucker first provides a description of the barstool:
The barstool seat is constructed of wood and is covered with a leather-like material and the top of the seat is approximately 30½-inches above the floor. The seat is attached to the metal rotational assembly with four (4) screws. The seat rotates freely on the rotational assembly. The rotational assembly is designed to allow the seat to rotate while the rotational assembly itself is intended to be fixed to the base providing no rotation between the base and the rotational assembly. The base's surface was roughened where the base contacts the rotational assembly, which helps prevent movement between the base and the rotational assembly, when the screw is correctly torqued. The base and rotational assembly were designed to be fastened together with a single screw.
Next, Tucker describes the screws present in the 15 Michelangelo Lounge barstools, including the subject screw. Tucker notes that the subject screw was approximately 1 3/8 inches in length, had a pan headed type Phillips head, had threads covering about 1 1/8 inches of the screw, with the 3/8 inches of thread nearest the head being worn and damaged, was cut to this length, and was accompanied by a washer.
Tucker compared and contrasted this screw with the screws in the other barstools, highlighting that it was the longest of the measured screws, and had the most wear and damage of the screws, and was in a barstool with a hole larger than the diameter of the screw and accompanied by a blackened lubricant. Tucker also indicates the subject screw is not a hex-headed screw, which is the ideal type of screw due to the available torque.
Finally, Tucker describes the condition of the barstool in which the subject screw was being used. His description of the barstool includes observations of the wear along the edges of the surface that directly contacts the base, which match up between the top surface of the barstool's base and the worn surface of the rotational assembly.
Tucker provides his opinions in the "engineering evaluation" and "conclusion" sections of his report. Tucker begins by stating the subject screw was too long to provide adequate contact with the base and that the screw had been cut shorter to decrease its length. He also noted that a washer had been installed.
Tucker further opined that the subject screw was the screw present during Plaintiff's alleged incident. Tucker bases this opinion on the wear and damage to the screw. In discussing the wear and damage to the screw, Tucker describes the manner in which screws function in a barstool, the extent of the thread damage, and the reduced use of the barstool during the COVID-19 pandemic.
Tucker next alleges that the nature of the screw and barstool in conjunction caused both the rotational assembly and base surface to wear from the friction. He claims lubricant was added to the base to prevent squeaking when the metals rubbed together.
Tucker ultimately concludes that Defendant failed to repair and maintain the subject barstool to an appropriate standard of care. Tucker bases this opinion on the type and length of the screw, as well as the damage both to the screw and to the barstool, which was caused by the subject screw. Tucker opines that, in part, the presence of lubricant indicates Defendant's knowledge regarding these issues.
In 1975, Dr. Moya received his medical degree from the University of Zaragoza, located in Zaragoza, Spain. After receiving his medical degree, he completed five years of...
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