At its core, this case involves an alleged injury on a ship. Specifically, Plaintiffs Robert Mondella and Tara Mondella allege that Mr. Mondella was seriously injured when he fell from a gangway while performing services on board the JPO Capricornus (the “Capricornus”), a vessel owned by Defendants.
Defendants filed a motion to exclude the report and testimony of Plaintiffs’ expert Captain Joseph Ahlstrom.
Defendants challenge each of the enumerated opinions in Capt. Ahlstrom’s report on at least one of the following grounds: (1) that he is unqualified; that his opinions are speculative, conjectural, or otherwise rely on insufficient evidence; and (3) that he relied on principles or methods that are inappropriate or otherwise improper for expert testimony.
Maritime Safety Expert Witness
Captain Joseph F. Ahlstrom is a graduate of the State University of New York (SUNY) Maritime, with a bachelors degree in marine transportation. He completed his masters degree in transportation management with honors from SUNY Maritime College. Captain Ahlstrom has commanded six merchant ships, including a tanker, containership, breakbulk carrier, and research and training ship. He sailed for fifteen years in the U.S. and Foreign Merchant Marine. In January 1996, Captain Ahlstrom started teaching at SUNY Maritime College. During his time at SUNY Maritime he was captain of the Training Ship Empire State from 1998–2000. He also was chairman of the Marine Transportation Department from 2003 until May 2005.
Defendants challenged each of the enumerated opinions in Capt. Ahlstrom’s report on at least one of the following grounds: (1) that he is unqualified; (2) that his opinions are speculative, conjectural, or otherwise rely on insufficient evidence; and (3) that he relied on principles or methods that are inappropriate or otherwise improper for expert testimony.
Qualifications
Defendants argued that Capt. Ahlstrom “is not a metallurgist, possesses no educational background, training, or experience in the field of metallurgy, and is not qualified to opine on metallurgical matters (i.e., whether the pin was rusted or corroded, leading it to be in a ‘defective’ condition).”
Although Capt. Ahlstrom is an expert, his expertise on “hundreds if not thousands of [gangways]” demonstrates that he has experience generally with the type of gangway pin at issue, but it does not demonstrate that his expertise extends to qualify him to render the testimony about the condition and structural integrity of the pin at issue here.
Capt. Ahlstrom does not need to be a classically trained metallurgist, but he must have experience such that the Court is persuaded that his opinions on the condition of the at-issue pin are as reliable as his opinions based on other pins that were available for him to inspect in person. Plaintiffs have failed to demonstrate that Capt. Ahlstrom has experience in evaluating the condition of gangway pins through a single photograph.
Because Plaintiffs have not demonstrated that Capt. Ahlstrom has such experience, Plaintiffs have failed to demonstrate by a preponderance of the evidence that Capt. Ahlstrom is qualified to testify about matters of deterioration or structural integrity under these circumstances.
Methodology
i. Capt. Ahlstrom’s Testimony is not Based on Sufficient Data
At bottom, Defendants relied on the fact that Capt. Ahlstrom did not inspect the relevant pin or gangway in person. Although the failure to conduct such inspection is not enough, by itself, to render expert testimony unreliable, Plaintiffs did not demonstrate that his testimony concerning his review of the available materials is reliable.
Plaintiffs conceded that without the tangible pin, their expert would not have access to sufficient facts or data necessary to determine the pin’s condition—those concessions are fatal.
If there was not enough information for Plaintiffs’ expert to determine material facts about the pin’s condition then, there is certainly not enough information now. Plaintiffs cannot credibly demonstrate that Capt. Ahlstrom’s testimony regarding the subject pin is based on sufficient facts or data. In other words, “there is simply too great an analytical gap between the data and the opinion proffered.”
That analytical gap renders the portions of the testimony that concern the condition of the pin speculative and conjectural. Because Rule 702 bars such speculative and conjectural testimony, the Court must preclude it.
ii. Capt. Ahlstrom’s Testimony is not the Product of Reliable Principles and Methods
One of Capt. Ahlstrom’s opinions is nothing more than an expert “simply accumulating and putting together one party’s story,” which is “expressly prohibited.”
Moreover, Capt. Ahlstrom’s failure to consider potential alternative explanations, and Plaintiffs’ failure to address this deficiency, further undermine the Court’s confidence that the subject testimony is the product of reliable principles and methods.
According to the Court, Capt. Ahlstrom provided legal conclusions about the duty of care and causation, disguised as his opinion.
Plaintiffs’ failure to demonstrate that their proposed expert’s testimony “is the product of reliable principles and methods,” or “a reliable application of the principles and methods to the facts of the case” is particularly troubling, as the principles-and-methods components of Rule 702 is the crux of the Court’s inquiry.
Held
The Court granted Defendants’ motion to exclude the report and testimony of Capt. Joseph Ahlstrom .
Key Takeaway
Concerns about the reliability of Capt. Ahlstrom’s reasoning and methodology, the sufficiency of available data, and the other infirmities discussed above lead the Court to the inescapable conclusion that Capt. Ahlstrom’s testimony will not assist the trier of fact. Taken together, Plaintiffs failed to demonstrate that Capt. Ahlstrom’s testimony satisfies even one of the four requirements of Rule 702. Therefore, the Court found “that there is simply too great an analytical gap between the data and the opinion proffered.” That analytical gap renders Capt. Ahlstrom’s testimony at best, irrelevant, useless, and sure to waste time.
Case Details:
Case Caption:
Mondella V. Schiffahrtsgesellschaft Oltmann MBH & Co. KG
It all started when Lewis Youngman fell from his motorized wheelchair while driving on the entry gangway of the Defendant’s cruise ship, Mariner of the Seas. Youngman alleged that, as a result of Defendant’s negligence, a certain portion of the gangway was impermissibly steep, uneven, and mis-leveled. Consequently, Youngman argues, the uneven flooring caused his wheelchair to tip over. This alleged negligence then resulted in severe injuries.
Defendant sought to strike some of this expert testimony from Plaintiff’s expert witness, Frank Fore, and Plaintiff’s hybrid witnesses, Timothy Carter, M.D., and Mark Fulton, M.D. As to Fore (an engineer), Defendant sought to strike his opinion that Plaintiff would not have been ejected from his motorized wheelchair were it not for the impermissibly steep incline of the gangway. Additionally, Defendant sought to strike Fore’s testimony that, had one of Defendant’s crewmembers more appropriately assisted Plaintiff, in accordance with Defendant’s own internal policies, Plaintiff’s incident would not have occurred.
Further, Defendant sought to strike Plaintiff’s treating physicians, Carter and Fulton, for Plaintiff’s allegedly insufficient pretrial disclosure. Alternatively, if the Court deems Plaintiff’s disclosures to be sufficient, Defendant moved to strike certain testimony from Carter on reliability grounds.
Forensic Engineering Expert Witness
Frank A. Fore is a forensic engineer, his specialties include vessel dynamics, kinematics, and accident reconstruction; occupant and pedestrian biomechanical dynamics, kinematics and injury analysis, tribology and the engineering of interacting moving surfaces, including the study of the co-efficient of friction, lubrication, and wear.
Mark Fulton is a Board-Certified Diplomat by the American Board of Neurological Surgery and is a fellow American Association of Neurological Surgeons, who specializes in both complex spinal and intracranial surgery. He received his medical degree from University of Utah School of Medicine and served both a Residency program and a Surgical Critical Care Fellowship at the Ohio State University Hospitals.
Timothy D. Carter is a Board-Certified Diplomat by the American Board of Neurology, who specializes in neurology, internal medicine, and clinical neurophysiology. He received his medical degree from University of Florida School of Medicine and completed a year of internal medicine residency at the University of Virginia affiliated programs. His neurology residency and clinical neurophysiology fellowship were completed at the Medical University of South Carolina where he was also Chief Resident.
“Plaintiff would not have been ejected and injured had his mobility scooter not abruptly tipped over on the gangway’s steep slope … or if the Gangway and Transition Plate had not exceed[ed] the mandatory maximum slope requirements as set forth in the Americans with Disabilities Act and the Florida Building Code, inter alia.”
Defendant argued that this conclusion is inadmissible because Fore did not engage in sufficient—or indeed any—testing before reaching this conclusion. Specifically, Defendant avers that Fore had no information regarding the make or model of Plaintiff’s motorized wheelchair (which Fore mistakenly referred to as a mobility scooter throughout his report); did not know how much the wheelchair weighed; did not know how much Plaintiff weighed; did not know how many wheels the wheelchair had; did not consider, or even know, the speed at which the wheelchair was traveling; and lacked understanding of other important details before drawing his conclusion. Defendant also pointed out that Fore did no experiments or other tests before arriving at his conclusion.
Fore made no effort to gather pertinent facts before concluding that the slope of the gangway was the cause of Plaintiff’s injury
The Court held that Fore’s conclusion is borne almost entirely of “anecdotal experience or speculation.” Fore offered no awareness of any facts specific to Plaintiff’s situation, let alone that he considered those facts in his opinion. Specifically, Fore’s opinion is untethered to critical facts such as the speed at which Plaintiff was traveling, the assistive device in which Plaintiff was traveling, the weight at which Plaintiff was traveling, or other details which would be necessary to render a reliable, non-speculative methodology. To the contrary, Fore’s opinion is based entirely on the theory that the gangway appeared to him to be improperly sloped, juxtaposed against videos of other people ostensibly falling on the gangway. The Court “concluded that there is simply too great an analytical gap between the data and the opinion proffered.”
However, Plaintiff missed the operative purpose for which this testimony was offered: “Defendant’s conformity to industry safety standards.” Here, Defendant has wisely opted not to challenge the portion of Fore’s testimony that opines on whether the gangway conforms with industry standards. Given Fore’s stated experience and training, plus his review of the basics of the record in the case, the Court held that this conclusion does fall within the Daubert reliability standard.
The Court held that Fore’s opinion rests too strongly upon speculation, such that it is unreliable under Daubert and its progeny. And because Fore’s speculation-laden testimony that the allegedly improperly-sloped gangway was the but-for cause of Plaintiff’s injuries lacked legal reliability, the Court granted Defendant’s motion to strike that portion of Fore’s testimony.
However, the Court refused to strike Fore’s testimony that “certain building codes and guidelines or regulations were arguably applicable to the subject gangway and that any alleged deficiencies with the subject gangway may have contributed to Plaintiff’s incident.”
Fore may not, however, testify that Plaintiff’s “mobility scooter would not have tipped over” had Defendant complied with its policy
Defendant sought to strike the portion of Fore’s report that Plaintiff’s “mobility scooter would not have tipped over had an RCCL crewmember assisted [Plaintiff] as required by RCCL internal policies ….”
The Court decided that Fore may testify as to whether, in his opinion, Defendant complied with its own internal policies. Indeed, courts have held that it is not a legal conclusion to analyze a party’s actions against its internal policies, and to determine whether the party complied with those policies.
The Court held that Fore may not, however, testify that Plaintiff’s “mobility scooter would not have tipped over” had Defendant complied with its policy. This testimony certainly rings again of an ultimate legal conclusion; i.e., that Defendant’s alleged failure to comply with its policy was the but-for cause of Plaintiff’s injuries. Thus, this portion of Fore’s anticipated testimony is inadmissible as it is purely a legal conclusion.
Challenges as to the Disclosure of Mark Fulton and Timothy D. Carter
Mark Fulton and Timothy D. Carter are hybrid witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C). Both are treating physicians of the Plaintiff, who will offer opinions within their areas of expertise, as disclosed below, but who need not provide a written report.
In addition to no reports being disclosed, Defendant argued that Plaintiff’s description of the testimony was also vague. That description is as follows:
“The Plaintiff’s medical condition related to the injuries that the Plaintiff sustained as alleged in the Complaint, including Plaintiff’s current medical symptoms, past and future medical and surgical condition and treatment, injury causation, aggravation of injuries and preexisting conditions due to the subject incident, diagnosis, prognosis, permanency, disability, and impairment, … the reasonableness of the costs and necessity of the medical care and treatment that was performed on the Plaintiff and the nature and estimated cost of future necessary medical and treatment for the Plaintiff.”
While the Court doubted whether the disclosure’s description is sufficient, the Court readily found that the ample time to depose the expert witnesses cured any ostensible prejudice.
Challenges as to Carter’s Anticipated Testimony
Defendant lodged substantive challenges to Carter’s proffered testimony.
Carter is a neurologist who has been treating Plaintiff since 2017. In 2019, Carter seemed to indicate that Plaintiff was experiencing neurological issues, and in 2021 essentially reaffirmed Plaintiff’s 2019 condition. On August 21, 2022, Plaintiff experienced his fall, and on September 7, 2022, underwent neck surgery. Eight months after Plaintiff’s fall, in May 2023 (and again in June 2023), Plaintiff had a visit with Carter. At that point, Carter seemed to notice marked differences in Plaintiff, including significant declines in his “mental and cognitive status,” his “speech and language,” his “attention and concentration,” and other mental faculties. Now, Carter seeks to testify that “more likely than not … the confluence of events together [i.e., Plaintiff’s fall and subsequent surgery] certainly contributed to some degree of deterioration.”
Defendant argued that Carter’s causation opinions should be excluded because Carter relied too heavily on temporal proximity and failed to rule out other factors causing Plaintiff’s neurological demise. Specifically, Defendant argued that Plaintiff, per Carter, was beginning to experience decline before Plaintiff’s fall; that imaging showed Plaintiff’s brain was already losing size and blood flow; that Carter failed to rule out that Plaintiff’s recurring urinary tract infections, as well as opioid and cannabis use, contributed to Plaintiff’s cognitive decline; that Carter could not determine that Plaintiff’s cerebral fluid issues were caused by the fall; and that Carter could not connect Plaintiff’s bowel and bladder incontinence to the fall.
Defendant’s Unpersuasive Challenges to Carter’s Opinions are Meritless
Carter bases his findings on a years-long relationship with Plaintiff, myriad neurological testing over those years, unchallenged qualifications in neurology, Plaintiff’s accident and surgery, and observations based on those years of visiting with Plaintiff to conclude that “the confluence of events together certainly contributed to some degree of deterioration.”
The Court held that it suffices to pass muster under Daubert, regardless of whether Carter directly ruled out every other cause of Plaintiff’s sudden neurological decline, or in part considered temporal proximity.
And to the extent that Defendant challenged the certainty of Carter’s findings (i.e., that “the confluence of events” contributed to “some degree of deterioration”), the Court decided that the Defendant is entitled to draw out Carter’s certainty before the jury via cross-examination. But such an argument goes to the weight, not the admissibility, of Carter’s testimony.
Held
The Court granted Defendant’s motion to strike Frank Fore’s testimony that the allegedly improper gangway slope was the primary or but-for cause of Plaintiff’s injury (or in other words the accident would not have happened but for the slope).
The Court denied Defendant’s motion to strike Fore’s testimony that Defendant failed to comply with its internal policies.
The Court granted Defendant’s motion to strike Fore’s testimony that Defendant’s failure to comply with its internal policies is the primary or but-for cause of Plaintiff’s injuries (or in other words the accident would not have happened had Defendant followed its internal policies).
The Court held that any deficiency in Plaintiff’s disclosures of Mark Fulton and Timothy Carter will be cured so long as Plaintiff makes Fulton and Carter available for deposition within twenty days of this Order.
The Court denied Defendant’s substantive motion to strike the testimony of Carter.
Key Takeaways:
Defendant persuasively challenged the reliability of the methodology Fore employed to go a step further to conclude that the ostensibly-improper gangway was the but-for cause of Plaintiff’s injurious ejection. An ultimate causation opinion goes a great deal further than simply an opinion that industry standards were not followed. A causation opinion must be supported by greater analysis and investigation.
Fore’s testimony that “certain building codes and guidelines or regulations were arguably applicable to the subject gangway and that any alleged deficiencies with the subject gangway may have contributed to Plaintiff’s incident” certainly falls within his expertise and experience. And the work he undertook to reach that more limited opinion is sufficient for Daubert purposes.
