Schultz v. Royal Caribbean Cruises, LTD

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 18-24023-Civ-TORRES

SAMUEL SCHULTZ,

Plaintiff,

v.

ROYAL CARIBBEAN CRUISES, LTD.,

D/B/A AZAMARA CLUB CRUISES,

Defendant.

___________________________________________/

ORDER ON DEFENDANT’S DAUBERT MOTIONS

This matter is before the Court on Royal Caribbean’s (“Defendant” or “Royal

Caribbean”) Daubert motions to exclude Samuel Schultz’s (“Plaintiff”) experts, Dr.

Nicholas Valenzia (“Dr. Valenzia”), Dr. Veronique Dalli (“Dr. Dalli”), and Dr.

Lawrence Amsel (“Dr. Amsel”). [D.E. 87, 88]. Plaintiff responded to Defendant’s

motions on March 20, 2020 [D.E. 102, 103] to which Defendant replied on April 3,

2020. [D.E. 106, 107]. Therefore, Defendant’s motions are now ripe for disposition.

After careful review of the motions, responses, replies, relevant authorities, and for

the reasons discussed below, Defendant’s motions are GRANTED in part and

DENIED in part.1

1 On June 18, 2019, the parties consented to the jurisdiction of the undersigned

Magistrate Judge. [D.E. 27].

I. BACKGROUND

Plaintiff filed this action on October 1, 2018 [D.E. 1] with a two-count

complaint alleging that Defendant2 violated Title I of the Americans with

Disabilities Act (“ADA”), as amended, 42 U.S.C. §§ 12101 et. seq., and the Florida

Civil Rights Act (“FCRA”), Fla. Stat. §§ 760.01. Plaintiff, a thirty-three year old

Wisconsin resident and U.S. citizen, is a singer who applied for employment as part

of an opera program onboard the Azamara Journey. The vessel was scheduled to

embark on a fourteen-week voyage from Singapore to Stockholm on March 25, 2018

to June 29, 2018. Defendant gave Plaintiff a job offer with a condition that Plaintiff

successfully completes a pre-employment medical examination (“PEME”) under the

guidelines of the International Labour Organization (“ILO”).3

Defendant arranged Plaintiff’s PEME with a medical vendor and Plaintiff’s

examination took place in New York City. The examining physician completed a

form noting that Plaintiff was fit for duty at sea despite a history of depression and

anxiety. However, the physician also included a note that Plaintiff needed

psychiatric clearance. A reviewing doctor, a physician at Broward Health, agreed

with that assessment and recommended that Plaintiff undergo a psychiatric

evaluation. Defendant then informed Plaintiff that he needed to obtain a

2 Defendant is a Liberian corporation headquartered in Miami that operates a

global cruise vacation company. Defendant employs approximately 70,000

crewmembers from more than 125 countries.

3 While Plaintiff’s job duties were to be performed, for the most part, onboard a

foreign-flag vessel, his recruitment and rehearsals occurred entirely in the U.S.

psychiatric evaluation that would address his history of depression, his current

mental status, and his fitness for duty at sea.

To comply with this request, Plaintiff arranged a video session with his

former treating psychiatrist, Dr. Gerber. Dr. Gerber wrote a letter, following the

session, that Plaintiff was mentally fit for duty at sea. Dr. Gerber also stated that,

although Plaintiff suffered from major depression since the age of 9 and survived a

prior suicide attempt4, Plaintiff had been in remission with the help of medication

and psychotherapy. Dr. Gerber found that that there was little to no risk of harm to

Plaintiff or others and that the risk of suicidal ideation was low.

Defendant’s chief medical consultant, Dr. Shore, then reviewed Plaintiff’s

medical file in March 2018.5 This included a review of Plaintiff’s disclosures on his

medical forms and Dr. Gerber’s letter. Based on this information, Dr. Shore

concluded that Plaintiff was not fit for duty at sea under the applicable ILO

guidelines because of Plaintiff’s history of major depression. More specifically, Dr.

Shore found that Plaintiff’s depression was persistent or reoccurring within the

meaning of the ILO guidelines because Plaintiff continued to receive treatment for

depression in the form of psychotherapy and medication. Dr. Shore also determined

that he could not exclude the possibility that Plaintiff’s major depression would

reoccur if Plaintiff were on a cruise ship for an extended period without access to

4 In 2011, Plaintiff attempted to commit suicide following a rape that he

suffered the year prior.

5 After reviewing Plaintiff’s medical file, Dr. Shore never examined or spoke to

Plaintiff before rendering a decision on Plaintiff’s ability to work at sea.

medical services. Because Defendant withdrew the offer of employment, Plaintiff

filed this action seeking relief under the ADA and the FCRA.

II. APPLICABLE PRINCIPLES AND LAW

The decision to admit or exclude expert testimony is within the trial court’s

discretion and the court enjoys “considerable leeway” when determining the

admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d

1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R.

Evid. 702.6 The party offering the expert testimony carries the burden of laying the

proper foundation for its admission, and admissibility must be shown by a

preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300,

1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th

Cir. 2004) (“The burden of establishing qualification, reliability, and helpfulness

rests on the proponent of the expert opinion, whether the proponent is the plaintiff

or the defendant in a civil suit, or the government or the accused in a criminal

case.”).

6 Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or

otherwise if: (a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to

determine a fact in issue; (b) the testimony is based on sufficient facts

or data; (c) the testimony is the product of reliable principles and

methods; and (d) the expert has reliably applied the principles and

methods to the facts of the case.

Fed. R. Evid. 702.

“Under Rule 702 and Daubert, district courts must act as ‘gate keepers’ which

admit expert testimony only if it is both reliable and relevant.” Rink v. Cheminova,

Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589). The

purpose of this role is “to ensure that speculative, unreliable expert testimony does

not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256

(11th Cir. 2002). Also, in its role as gatekeeper, a court’s duty is not to make

ultimate conclusions as to the persuasiveness of the proffered evidence. See Quiet

Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)

To facilitate this process, district courts engage in a three-part inquiry to

determine the admissibility of expert testimony:

(1) the expert is qualified to testify competently regarding the matters

he intends to address; (2) the methodology by which the expert reaches

his conclusions is sufficiently reliable as determined by the sort of

inquiry mandated in Daubert; and (3) the testimony assists the trier of

fact, through the application of scientific, technical, or specialized

expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted). The

Eleventh Circuit refers to the aforementioned requirements as the “qualification,”

“reliability,” and “helpfulness” prongs and while they “remain distinct concepts”;

“the courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing

Quiet Tech, 326 F.3d at 1341).

In determining the reliability of a scientific expert opinion, the Eleventh

Circuit also considers the following factors to the extent possible:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community. Notably, however, these factors do not exhaust the

universe of considerations that may bear on the reliability of a given

expert opinion, and a federal court should consider any additional

factors that may advance its Rule 702 analysis.

Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are

not “a definitive checklist or test,” Daubert, 509 U.S. at 593, but are “applied in

case-specific evidentiary circumstances,” United States v. Brown, 415 F.3d 1257,

1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus “solely on

principles and methodology, not on conclusions that they generate.” Daubert, 509

U.S. at 594-95. It is also important to note that a “district court’s gatekeeper role

under Daubert ‘is not intended to supplant the adversary system or the role of the

jury.’” Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666

(11th Cir. 2001)). Rather, “[v]igorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the traditional and

appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580;

see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir.

2014) (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must

do a preliminary assessment of whether the reasoning or methodology underlying

the testimony is scientifically valid and of whether that reasoning or methodology

properly can be applied to the facts in issue.’”) (quoting Kilpatrick v. Breg, Inc., 613

F.3d 1329, 1335 (11th Cir. 2010)).

“[T]he objective of [the gatekeeping role] is to ensure the reliability and

relevancy of expert testimony. It is to make certain that an expert, whether basing

testimony upon professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

(1999). The district court’s role is especially significant since the expert’s opinion

“can be both powerful and quite misleading because of the difficulty in evaluating

it.” Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein, Rule 702 of the Federal

Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).

III. ANALYSIS

A. Defendant’s Motion to Exclude Drs. Valenzia and Dalli [D.E. 87]

We begin with Defendant’s motion to exclude the report of Plaintiff’s experts,

Dr. Valenzia and Dr. Dalli.7 Plaintiff hired these experts to answer the question of

“[w]hether [Defendant’s] hiring of the [P]laintiff for a position of performer aboard

its Maltese-flagged cruise ship would have caused [Defendant] to violate Maltese

law.” [DE. 87 at 2]. Defendant argues that these experts violated Daubert and

Federal Rule of Evidence 44.1 because Plaintiff tasked them with developing a legal

conclusion (i.e. whether hiring Plaintiff violated Maltese law) and that this is no

different than a lawyer’s closing argument. Defendant also claims that Plaintiff’s

experts violated Daubert because (1) they have no specialized knowledge or

expertise to opine on Defendant’s hiring and medical approval process, and (2) their

report includes improper legal opinions on whether Defendant’s medical approval

process contains irregularities. Because neither of these is allowed under Daubert,

7 These experts work together in a Maltese law firm.

Defendant concludes that their expert report – except for the section that outlines

the relevant legal principles – must be stricken.

The applicability of foreign law is an issue to be determined by a district

court. See Charles Alan Wright et al., Proof of Foreign Law, 9A Fed. Prac. & Proc.

Civ. § 2444 (3d ed. 2016) (quoted in Siswanto v. Airbus Americas, Inc., 2016 WL

7178460, at *4 (N.D. Ill. Dec. 9, 2016)). If the court determines a need to apply and

interpret foreign law, it may accept guidance from an expert on foreign

law. See Inter Med. Supplies, Ltd. v. EBI Med. Sys., Inc., 181 F.3d 446, 459 (3d Cir.

1999). The propriety of presenting an expert on foreign law is specifically

recognized in the Federal Rules of Evidence:

In determining foreign law, the court may consider any relevant

material or source, including testimony, whether or not submitted by a

party or admissible under the Federal Rules of Evidence. The court’s

determination must be treated as a ruling on a question of law.

Fed. R. Civ. P. 44.1. Thus, foreign experts may be called to assist a district court in

interpreting foreign law. See Grupo Televisa, S.A. v. Telemundo Commc'ns Grp.,

Inc., 2005 WL 5955701, at *7 (S.D. Fla. Aug. 17, 2005) (denying motion to exclude

expert on Mexican law).

Defendant challenges, in part, the admissibility of Plaintiff’s experts because

they run afoul of Daubert and Federal Rule of Evidence 702. “Daubert, however,

does not apply in these circumstances. That holding governs the admissibility of

expert testimony introduced to help a jury understand a piece of evidence or

determine a fact at issue: it does not govern the admissibility of expert testimony

introduced to assist a court in making decisions regarding foreign law.” Id.8 Stated

differently, “Rule 44.1 of the Federal Rules of Civil Procedure removes admissibility

precepts from foreign law determinations,” meaning there is no need for Plaintiff’s

experts to meet the “special qualifications” normally required of factual

experts. Adria MM Prods., Ltd. v. Worldwide Entm’t Grp., Inc., 2018 WL 6505914,

at *2 (S.D. Fla. Aug. 27, 2018) (citing Siswanto v. Airbus Americas, Inc., 2016 WL

7178460, at *4 (N.D. Ill. Dec. 9, 2016) (denying motion to exclude an expert and

noting court’s ability to determine what weight to afford witness’ opinions

on foreign law)). Courts in this district have been consistent on this point and have

repeatedly found that a court may consider a foreign expert report “under Rule 44.1,

notwithstanding a finding that the report would not satisfy Fed. R. Evid. 702 or

Daubert.” Adria MM Prods., Ltd, 2018 WL 6505914, at *2 (citation omitted). We

therefore need not address whether Dr. Valenzia and Dr. Dalli qualify as experts

under Daubert. See Grupo Televisa, S.A., 2005 WL 5955701, at *7 (“The Court . . .

need not address whether Mr. Loperena qualifies as an expert under the criteria set

forth in Daubert.”).

Turning to whether Plaintiff’s experts run afoul of Federal Rule of Evidence

44.1, Defendant’s arguments are unavailing. Defendant claims that the Court

should exclude portions of the expert report because Dr. Valenzia and Dr. Dalli have

no specialized knowledge or expertise on Defendant’s hiring and medical practices

8 That is the same in this case because Plaintiff does not seek to admit these

opinions to a jury.

except for the information that Plaintiff’s counsel provided to them.9 Defendant

fails to reference, however, any part of Rule 44.1 that imposes this requirement as a

basis for exclusion, especially since a determination on foreign law is generally a

question for a judge to decide – not a jury. Indeed, “[t]he purpose of Rule 44.1 is to

provide district courts faced with ‘the peculiar nature of the issue of foreign law’ the

flexibility necessary to examine and weigh materials regarding foreign law as they

see fit in light of the facts and circumstances.” Castillo v. Cessna Aircraft Co., 2010

WL 11505745, at *3 (S.D. Fla. July 22, 2010) (quoting Fed. R. Evid. 44.1). This

flexibility allows a court “to reexamine and amplify material that has been

presented by counsel in partisan fashion or in insufficient detail.” Id. Because Rule

44.1 gives a court considerable discretion to allow a foreign expert to provide

background information that may ordinarily violate Daubert so that a court may

understand the nuances of foreign law, we decline to exclude Plaintiff’s expert

report for these reasons.

Defendant’s final argument is that the expert report should be stricken under

Rule 44.1 because, after Plaintiff’s experts explained the substance of Maltese law,

they incorrectly applied the law to the facts of this case. Defendant claims that the

expert report makes factual determinations on whether Royal Caribbean violated

Maltese law and that this is not allowed because it merely instructs the trier of fact

on what conclusion to reach. This argument is unpersuasive because, as stated

earlier, Plaintiff does not seek to introduce his expert report to the jury. Plaintiff

9 Defendant does not question Plaintiff’s experts on their expertise of Maltese

law.

merely seeks to inform the Court on whether Defendant’s hiring and medical

practices would have violated Maltese law. Defendant’s contention also falls short

because the Court need not adopt any application or conclusion reached in the

expert report. The expert report is merely a guide on how to apply Maltese law and

– irrespective of its potential shortfalls – it is helpful in determining the content of

Maltese law and how it might be applied. Accordingly, there is no reason to strike

any portion of Dr. Valenzia’s and Dr. Dalli’s expert report for the Court’s

consideration and, as a result, Defendant’s motion is DENIED.

B. Defendant’s Motion to Exclude Dr. Amsel [D.E. 88]

Defendant’s second motion seeks to exclude Dr. Amsel who is a Board

Certified psychiatrist with expertise in the assessment of suicide risk. Dr. Amsel

serves as an Assistant Professor of Clinical Psychiatry at Columbia University, as a

research psychiatrist at New York State Psychiatric Institute, and as a psychiatrist

at New York Presbyterian Hospital.10 After reviewing the evidence in the record,

Dr. Amsel opined (1) that Plaintiff “had no psychiatric limitation in regard to

employment on [Defendant’s] ship,”[D.E. 88-1 at 4] (2) that Dr. Gerber’s letter

“should have led to [Plaintiff’s] medical evaluation being completed in [Plaintiff’s]

favor,” id. at 5, and that “[t]his [job] was a good opportunity for [Plaintiff], and he

was unjustly deprived of it.” Id. at 10. Defendant suggests that Dr. Amsel made

several missteps in his expert report because his methodology is unreliable and his

opinions are unhelpful. We consider each argument in turn.

10 Although Defendant did not challenge Dr. Amsel’s qualifications, we include

a brief background to inform the analysis that follows.

1. Reliability

First, Defendant claims that Dr. Amsel’s methodology is unreliable because

he failed to assess Plaintiff’s medical records during the relevant time period and

neglected to perform any independent tests to corroborate his findings. Defendant

also complains that Dr. Amsel failed to even meet with Plaintiff and that, if he had

done so, he would have realized that Plaintiff severed ties with his treating

psychiatrist, Dr. Gerber. Defendant suggests that the cessation in Plaintiff’s

psychiatric care and the occurrence of several major life events (i.e. Plaintiff

starting a new job and moving to a new city) should have been considered when

determining Plaintiff’s well being. Making matters worse, Defendant alleges that

Dr. Amsel undermined his own opinion because he stated that a psychiatric

evaluation is critical in evaluating a person’s mental health but then failed to use

any methodology for his own assessment. Instead, Dr. Amsel chose to rely almost

entirely on Dr. Gerber’s opinions and other statistical data to support a conclusion

that Plaintiff was medically fit for duty at sea. Because Dr. Amsel’s opinion is

devoid of any reliable methodology, Defendant concludes that it cannot stand.

“The reliability standard is established by Rule 702’s requirement that an

expert’s testimony pertain to ‘scientific . . . knowledge,’ since the adjective ‘scientific’

implies a grounding in science’s methods and procedures, while the word

‘knowledge’ connotes a body of known facts or of ideas inferred from such facts or

accepted as true on good grounds.” Daubert, 509 U.S. at 580. This entails an

assessment of whether the “methodology underlying the testimony is scientifically

valid.” Id. at 592. The four non-exhaustive factors used to evaluate the reliability

of a scientific expert opinion include the following:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community.

Frazier, 387 F.3d at 1262 (citations omitted).

After an independent review of Dr. Amsel’s expert report, we agree that there

are viable reasons that his opinions might be subject to criticism. However, it is not

for the Court, on a Daubert motion, to determine the credibility and persuasiveness

of Dr. Amsel’s opinions. All of the defects that Defendant identifies merely affect

the weight of Dr. Amsel’s opinions, as opposed to their admissibility. See, e.g., Pods

Enterprises, Inc. v. U-Haul Int’l, Inc., 2014 WL 2625297, at *3 (M.D. Fla. June 12,

2014) (“PEI [] argues that Dr. Wood improperly weighted the data, included

improper questions, and failed to employ proper quality controls. These criticisms

likewise go to the weight of her opinions, not their admissibility.”).

Defendant takes issue, for instance, with Dr. Amsel’s decision to omit any

consideration of Plaintiff’s move to a new city or other major life events in Plaintiff’s

life. But, there is no evidence that the failure to consider these factors renders Dr.

Amsel’s opinion unreliable.11 Defendant then alleges that Dr. Amsel was unaware

that Plaintiff ceased his psychiatric appointments with Dr. Gerber. While that

might be true, that goes to the weight that a jury should assign to Dr. Amsel’s

11 Defendant’s argument appears meritless because there is evidence in Dr.

Amsel’s expert report that he was aware of Plaintiff’s major life events.

opinion – not whether the underlying methodology is unreliable. Not to be deterred,

Defendant claims that the failure to physically examine Plaintiff is a proper basis to

exclude Dr. Amsel’s opinion. This argument falls short for many of the same

reasons because Defendant fails to identify what evidence Dr. Amsel should have

considered and how it might have changed his assessment. And even if Defendant

had made that showing, it would have merely provided a critique for the jury to

consider because Dr. Amsel relied on Plaintiff’s medical files when determining

whether Plaintiff had a substantial risk of suicide. Because “a physician need not

necessarily examine a patient, interview that patient, or speak with the patient’s

treating physician(s) in order to render opinions regarding diagnosis, prognosis,

course of treatment and perhaps even causation,” Dr. Amsel’s decision to rely

primarily on medical records is not fatal. Geyer v. NCL (Bahamas) Ltd., 203 F.

Supp. 3d 1212, 1216–17 (S.D. Fla. 2016).

Defendant’s last argument, as to the reliability of Dr. Amsel’s opinion, is that

Dr. Amsel relied too heavily on “another doctor’s letter and generalized statistical

data to support his conclusion that [Plaintiff] was medically fit for duty.” [D.E. 88

at 8]. But, this is inaccurate because Dr. Amsel consulted the entire record

available to Royal Caribbean including Plaintiff’s psychiatric history and the

medical records from Dr. Gerber and Dr. Balick. Dr. Amsel then used his own

methodology to assess Plaintiff’s prior suicide attempt, Plaintiff’s medications, and

other studies related to mental health. While Defendant may disagree entirely with

how Dr. Amsel reached his conclusions, that does not mean that his opinions are

unreliable under Daubert. If Defendant wants to undermine Dr. Amsel’s opinions,

it will have ample opportunity to do so at trial. Accordingly, Defendant’s motion to

exclude Dr. Amsel’s opinions as unreliable is DENIED.

2. Helpfulness

Second, Defendant seeks to exclude limited portions of Dr. Amsel’s expert

report because they will be unhelpful to the trier of fact. Defendant takes issue

with Dr. Amsel’s opinion that Plaintiff’s medical evaluation should have been

returned in his favor and that Defendant should have hired Plaintiff because he

was medically fit. More specifically, Defendant argues that Dr. Amsel’s expert

report includes impermissible legal conclusions because he opines that Dr. Gerber’s

letter “satisfies the ILO Guidelines that are supposed to define the clearance

process,” [D.E. 88-1 at 5] and that Defendant’s job opening was a “good opportunity

for [Plaintiff], and he was unjustly deprived of it.” Id. at 10. Defendant claims that

these opinions are not grounded in any scientific, technical, or other specialized

knowledge and that they will not assist the jury in understanding Plaintiff’s

emotional or mental health condition. For these reasons, Defendant concludes that

these opinions should be stricken.

“[E]xpert testimony is admissible if it concerns matters that are beyond the

understanding of the average lay person” and offers something “more than what

lawyers for the parties can argue in closing arguments.” Frazier, 387 F.3d at 1262-

63 (citations omitted). While “[a]n expert may testify as to his opinions on an

ultimate issue of fact . . . he ‘may not testify as to his opinion regarding ultimate

legal conclusions.’” Umana-Fowler v. NCL (Bahamas) Ltd., 49 F. Supp. 3d 1120,

1122 (S.D. Fla. 2014) (quoting Delatorre, 308 F. App’x at 383). The Eleventh Circuit

has made clear that “merely telling the jury what result to reach is unhelpful and

inappropriate.” Umana-Fowler, 49 F. Supp. 3d at 1122 (citing Montgomery v. Aetna

Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)).

Here, Defendant’s arguments are well taken because a small portion of Dr.

Amsel’s expert report includes opinions that are not beyond the understanding of an

average layperson. Statements that Defendant’s job offer was a “good opportunity,”

and that Defendant “unjustly deprived [him] of it” is a determination that a jury

can make entirely on its own. [D.E. 88-1 at 10]. While the deprivation of a job

opportunity does not, by itself, rise to a legal conclusion, it falls outside the scope of

expert testimony and it presents a risk of telling a jury what result it should reach

as to Plaintiff’s ADA and FCRA claims. See Montgomery, 898 F.2d at 1541 (“An

expert may not . . . merely tell the jury what result to reach.”) (citing Fed. R. Evid.

704).

The same is true with respect to Dr. Amsel’s statement that Dr. Gerber’s

letter satisfies the ILO guidelines. “While [a]n expert may testify as to his opinion

on an ultimate issue of fact,” Dr. Amsel’s opinion runs the risk of instructing the

jury that the ILO guidelines were satisfied and that Defendant had no justifiable

reason to revoke Plaintiff’s job offer. Id. (citing Fed. R. Evid. 704). This opinion

leads the jury too close to the water’s edge of concluding that Defendant unlawfully

discriminated against Plaintiff. Plaintiff suggests that a jury would benefit from

Dr. Amsel’s opinion in determining the application of the ILO guidelines to

Defendant’s conduct. But, if a jury finds Dr. Amsel’s testimony and expert report to

be persuasive and credible, this is a determination that a jury can make on its own

without the risk of instructing jurors on what conclusion to reach. Accordingly,

Defendant’s motion to exclude a limited portion of Dr. Amsel’s expert report as

unhelpful is GRANTED and, in all other respects, Defendant’s motion is DENIED.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Daubert motions [D.E. 87, 88] are

GRANTED in part and DENIED in part:

A. Defendant’s motion to exclude the expert reports of Dr. Valenzia and

Dr. Dalli is DENIED.

B. Defendant’s Daubert motion to exclude a limited portion of Dr. Amsel’s

medical opinions as unhelpful is GRANTED. In all other respects,

Defendant’s motion is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, this 5th day of

June, 2020.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge