Katzoff v. NCL BAHAMAS, LTD.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 19-22754-CIV-COOKE/GOODMAN

JERALD KATZOFF,

Plaintiff,

v.

NCL BAHAMAS, LTD.,

Defendant.

________________________/

REPORT AND RECOMMENDATIONS ON MOTION TO STRIKE/DAUBERT

MOTION TO EXCLUDE PLAINTIFF’S EXPERT WITNESS, EDWARD WANKEL

Jerald Katzoff alleges that he was injured while dancing in a lounge aboard the

Norwegian Sky cruise ship because he tripped on a sound monitor on the dance floor. In

this lawsuit against NCL (BAHAMAS) LTD, Katzoff retained Edward Wankel as an

expert witness on issues relating to the placement of the sound monitor, sometimes called

the stage monitor. By way of summary, Wankel, who has a bachelor’s degree in Business

Administration and a master’s degree in Public Administration, opined that NCL was

negligent in myriad ways. NCL filed a Daubert motion to exclude Wankel’s expert opinion

testimony. [ECF No. 97]. Katzoff filed an opposition response, and NCL filed a reply [ECF

Nos. 102; 105]. United States District Judge Marcia G. Cooke referred the Daubert motion

to the Undersigned. [ECF No. 98].

For the reasons discussed below, the Undersigned respectfully recommends that

Judge Cooke grant the motion. Wankel’s proposed opinions have several problems,

ranging from concerns about his qualifications to the absence of reliable methodology. At

bottom, though, Wankel’s opinions would not be helpful to a jury. His core opinion --

that NCL negligently placed a stage monitor on the dance floor where passengers were

dancing, rather than on the stage -- concerns a lay matter that the jury can easily

understand and decide without Wankel’s opinion. His other opinions either contain too

little analysis, are outside of his area of expertise, and/or are impermissibly conclusory.

Plaintiff never addressed those challenges in his opposition response. The Undersigned

will provide a more comprehensive discussion of the facts and legal principles and then

analyze the Daubert challenge.

I. Factual Background

Wankel’s Report contains both “opinions” and “conclusions.” Rather than

paraphrase the opinions and conclusions, I will quote them here verbatim:

a. Opinions

1. Based on a reasonable degree of professional certainty, the Defendant did

not exercise due care in the set up of their stage for Mr. Katzoff and other passengers

onboard the Norwegian Cruise Line Vessel SKY, on August 16, 2018 in a safe manner, by

creating a tripping hazard for passengers dancing in the Outrigger lounge. The careless

placement of the monitor caused the Plaintiff to trip and fall over a stage monitor that

was placed in a careless and dangerous manner. (See CCTV Video of Accident).

2. The Defendant did not follow their own policies and procedures as stated

in the Defendants SMART Training Campaign. As stated therein, the Defendant

acknowledges that inadequate lighting and other contributors such as the environment

cause or contribute to trip and falls. NCL acknowledges that trip and falls are preventable

by following a risk-based approach and “identifying high risk areas.” Hazards and

obstructions should be clearly marked according to their policy.

3. It is my further opinion, based on a reasonable degree of professional

certainty, that Defendant should have known that inadequate and improper set up

procedures and safety inspections by under qualified staff, on the vessel SKY, over a long

period of time, contributed to creating a dangerous condition for passengers at large. It

should have been anticipated that the guest population on a large ship, who rely on the

vessel’s staff for their safety, will include a variety of people from all age brackets and

physical and mental conditions. The fact that the ships technical personnel who were

responsible for the maintenance, set up of equipment and the safety of the dancing space,

should have known that improper placement of stage monitors on the dance floor, rather

than on the stage where it belongs, created an unreasonable and avoidable danger to

passengers.

3. The Defendants failed to follow standards and guidelines from audio visual

professionals, manufacturers of stage monitors and the performers themselves, as

testified to by Alexandra Jaime (performer) under contract with the Defendant, that stage

monitors should be placed on the stage. (See Attachments # 3,4 and 5).1

4. Defendant failed to have as crew qualified stage technicians trained to

competently set up a stage at the Outrigger Lounge. The Outrigger Lounge was unsafe

for the Plaintiff and other NCL passengers on August 16, 2018.

5. There were reasonable alternatives for available practical passenger safety

and due care at the time and place alleged in the complaint. They include:

• The Defendants ship employees could have set the stage monitor on a raised stand.

• The Defendant could have placed the stage monitor off the side of the dance floor

to make it visible to passengers.

• The Defendants could have warned Plaintiff and other passengers about the

speaker placement danger.

• The Defendant could have eliminated the use of a stage monitor which was not

necessary for a small venue.

• The Defendant could [have] used smaller monitors which many performers prefer

to eliminat[e] the stage monitor. See attached manufacturers recommendation. (See

Attachment # 3).

• As observed on the video, the dance floor area was dark and the passengers[‘]

visibility was limited by the spot lights, strobes, and colored lights flashing.

Objects on the dance floor would have been more conspicuous by simplifying the

lighting.

1 Wankel’s report contains two opinions designated as numbered paragraph 3.

• The lighting conditions on the CCTV video is a misleading representation of the

visual appearance to passengers on the dance floor. This video was taken between

10:30 PM and 11 PM on August 16, 2018. The stage monitor was black. In my

opinion the Defendant should have enhanced the lighting to improve safety of

passengers using this busy traffic area and dance floor.

• The Defendants knew or should have known that most people are drinking

alcoholic beverages at social dancing venues especially with a bar right in back of

the stage. While drinking alcohol it more difficult for passengers to see obstacles

on and around the dance floor. As testified to by defendant representatives in their

deposition most of the previous accidents where guests tripped over speakers,

their breathalyzers test showed high levels of alcohol by those patrons. So again,

in my opinion they knew this was commonplace and did nothing to reduce the

potential risk of accidents in the Outrigger Lounge. The Plaintiff was not

intoxicated at the time and place. (See review of Documents Deposition of Brett

Berman) Page # 6.

• There are other options for the placement of stage monitors or none at all in my

opinion. The music is also distracting, there were no staff to monitor guests, and

The Defendant knew about prior tripping accidents over speakers. And Defendant

knew its passenger population was at higher risk for falls compared to general

populations. This in my opinion was a recipe for accidents to happen as Defendant

states, “Older adults, expected and encouraged to drink a lot, have less agility,

poorer eyesight and hearing among other naturally occurring health issues due to

age,” in my opinion.

[ECF No. 97-2, pp. 10-12].

b. Conclusions

Based on my investigation and evaluation of the circumstances involved in this

case, it is my professional opinion that the Defendant did not exercise reasonable and due

care in providing a safe environment at the Outrigger Lounge stage and dance floor on

the NCL, SKY vessel on August 16, 2018. In evaluating the subject defendants conduct

with regard to proper stage set up procedures and proper safety inspections, and lighting

to protect the Plaintiff Jerald Katzoff, I can state, based on the information available at

this time with a reasonable degree of of [stet] professional certainty, that the

Defendants failed in its duty to exercise reasonable care to protect the Plaintiff along with

other guest[s] and dancers on August 16, 2018.

Specifically, the Defendant provided improper stage setup and safety

inspections, which failed to conform to an accepted standards [stet] of care, inattentive

supervision for the claimant and lack of foresight, resulting in insufficient safety and

failure to protect the plaintiff against a known risk of injury. The Defendants [stet] were

obligated to anticipate the potential dangers posed by the inappropriate placement of

an obstacle (stage monitor), insufficient lighting and for not taking any and all safety

precautions necessary to ensure the safety and wellbeing of the Plaintiff and all other

guests on August 16, 2018. Indeed it appears the sound quality and the performers safety

were a priority over cruise passenger safety.

Furthermore, in my opinion the Defendant, first allowed the continuous

placement of an obstacle on the dance floor knowing that former guests have tripped

over speakers in and around on similar dance floors and rooms on ships but did not

warn their guests either by appropriate signage, verbal warning from entertainers or by

other warnings such as cones around the corners of the stage monitor, raising stage

monitor[s] making them more visible which left a safety hazard by not doing so.

Ultimately, this led to the Plaintiffs [stet] fall on August 16, 2018. [ECF No. 97-2, p. 13].

c. Wankel’s Academic and Experience-Based Background and Purported

Expertise

Wankel has a bachelor’s degree in Business Administration and a master’s degree

in Public Administration. He has more than thirty-five years of experience in recreation

and education planning, administration, maintenance park and playground safety. He

served as the Commissioner of the Town of Islip Department of Parks, Recreation and

Cultural Affairs, for twelve years, as well as the Deputy Supervisor of the Town of Islip.

In addition, he was the Commissioner of Parks, Recreation and Conservation for Suffolk

County, NY for more than three years.

Wankel was appointed by the Pataki Administration as the Deputy Commissioner

of Parks, Recreation and Historic Preservation for the State of New York in 1995 and

served until December of 1998. In that capacity, he oversaw the Long Island and New

York City Regions. Mr. Wankel served as Vice President of the Suffolk County Police

Athletic League, as well as the Treasurer of The New York State Recreation and Parks

Society.

On the other hand, he is not an engineer, biomechanical engineer, medical

professional, accident reconstructionist, or a human factors expert. Wankel also does not

hold any degrees or licenses in lighting, nor does he have any formal training in forensic

video analysis. He is also not an architect, nor does he hold any degrees in hospitality.

Wankel has never been employed with a cruise line, has never designed a cruise

ship, or a lounge or music venue on a cruise ship, nor has he designed a dance floor on a

cruise ship. He has no professional experience with cruise ship dance spaces. Wankel also

is not a professional musician and has never personally used a monitor. He also has no

experience designing or selling sound equipment, including monitors. Wankel is also not

a toxicologist.

Wankel’s CV does not mention any experience in setting up equipment for live

musical performances, and he has never published anything regarding setting up audio

equipment for live musical performances.2 He has also never been employed as a lounge

technician. Wankel has also never testified in any other matter involving the set-up of

audio equipment for live musical performances.

In fact, an ALM Experts’ website, which NCL attached as an exhibit to its motion,

represents Wankel’s primary area of expertise to be “golf courses.” [ECF No. 97-5, p. 1].

Wankel’s ALM page represents that he is an expert with many areas of expertise:

Accident Investigation & Failure, Analysis; Athletic Accidents; Athletic Facilities;

Camping; Campsites; Falls, Fitness; Golf; Golf Carts; Golf Course Maintenance; Golf

Courses; Health Club Facilities; Parks & Playgrounds; Parks and Recreation; Parks &

Recreation Accidents; Parks & Recreation Facilities; Parks & Recreation Management and

Parks and Recreation Safety.

2 His expert report says he “assist[ed] with the setup of stages for over 150 outdoor

concert performances, for both spectators and dancers, over a period of fifteen years.”

[ECF No. 97-2, p. 10 (emphasis added)].

Wankel’s CV also makes no mention of experience with cruise ships or other

maritime vessels.

In his three-page opposition [ECF No. 102] to the 16-page Daubert motion,

Katzoff’s primary argument is that Wankel’s “deposition testimony regarding his

extensive experience both supervising and participating in sound equipment setup for

live concerts” is sufficient to give him the requisite expertise to offer expert opinions

about the stage/sound monitor’s placement. [ECF No. 102, p. 2]. He did not address the

issue of whether Wankel’s opinions would help the jury.

Relying on Wankel’s experience as a parks and recreation supervisor, Katzoff

contends that Wankel “supervised approximately 150 parks” and notes that his duties

“included supervising setup and management for approximately 12 to 13 outdoor

concerts a year,” which total approximately 150 concerts over the 15-year period. Id.

Katzoff’s opposition memorandum further notes that “while initially he would merely

assist in equipment setup as directed by others,” he learned “after ‘the first couple of

years . . . how to do it myself,’” including “where equipment should go.” Id. (citing ECF

No. 97-4 at 33:1-3; 33:16-22; 35:19-36:7).

Katzoff conceded that Wankel “is not a professional sound technician,” but points

out that he “did consult sources from the music sound industry in formulating his

opinions.” Id. at p. 3. He also argued that these sources merely confirmed his own

opinions derived from his experience. Katzoff emphasized that Wankel’s opinions about

the proper placement of sound equipment “in concert venues” are “derived principally

from his fifteen years of experience supervising and participating in sound equipment

for approximately 150 concerts.” Id.

Katzoff’s memorandum did not discuss Wankel’s experience with indoor music

venues, where people are dancing on a dance floor, nor did it discuss the placement of

sound equipment for a band playing in a lounge aboard a cruise ship.

As noted in NCL’s reply, though, Katzoff’s memorandum discussed only

Wankel’s alleged experience in sound equipment setup; it did not seek to justify any of

the other opinions in his report, such as the qualifications and training of NCL’s

employees, whether they followed guidelines, the adequacy of the lighting, that the

music distracted Plaintiff, and the frequency with which passengers drink alcohol on

cruise ships.

During his deposition, Wankel summarized his experience in setting up outdoor

concerts at county parks:

Back in the ‘70s we started a concert program. I assisted. I was at every

single one of those events, and I would help assist the – performers put their

equipment up. I learned over the first couple of years pretty much, you

know, where equipment should go, and I helped with that. I wasn’t – I

wasn’t – I wasn’t the – the technician.

I didn’t know a lot more than the technicians on your cruise ship, but I

helped and over the years. I learned. And that’s how I learned. But my

experience is in park safety. I am not a technician that sets up stages. I

never – I didn’t do that for a living. I helped – (emphasis added).

[ECF No. 97-4, pp. 35-36 (emphasis added)].

d. Other Factors

Wankel did not inspect the lounge, the stage, the dance floor, the stage monitor,

or any other equipment. He did not take any measurements of these things and did not

know their dimensions. Wankel did watch the CCTV video footage of the incident,

which, NCL points out, “is something any lay person can do.” [ECF No. 105, p. 4]. But

Wankel does not know how far the stage was from the CCTV camera, and he has not

done any forensic examination of the video.

II. Applicable Legal Principles

The district court has “broad discretion in determining whether to admit or

exclude expert testimony, and its decision will be disturbed on appeal only if it is

manifestly erroneous.” Evans v. Mathis Funeral Home, 996 F.2d 266, 268 (11th Cir. 1993).

Federal Rule of Evidence 702 governs the admission of expert testimony, as explained

and refined by the United States Supreme Court in Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579, 582 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Under

this framework, district courts are charged with a gatekeeping function “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).

Rule 702 provides that:

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.

To fulfill its obligation under Daubert, a trial court engages in a three-part inquiry:

(1) whether the expert is qualified to testify competently; (2) whether the methodology

used to reach the conclusions is sufficiently reliable; and (3) whether the testimony assists

the trier of fact to understand the evidence or to determine a fact at issue. Rink v.

Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir. 2005).

As an overarching principle, the district court must “ensure that speculative,

unreliable expert testimony does not reach the jury.” McCorvey, 298 F.3d at 1256. “In order

to be admissible, an expert’s testimony must be based on ‘more than subjective belief or

unsupported speculation.’” Haggerty v. Upjohn Co., 950 F. Supp. 1160, 1167 (S.D. Fla. 1996)

(quoting Daubert, 509 U.S. at 590). There should be “[s]cientific method; good grounds

and appropriate validation.” U.S. v. Masferrer, 367 F. Supp. 2d 1365, 1371 (S.D. Fla. 2005).

Reliability of the methodology requires “an exacting analysis of the proffered

expert’s methodology.” McCorvey, 298 F.3d at 1257. That analysis takes into consideration

a number of factors, including: (1) whether the expert’s methodology can be, and has

been, tested; (2) whether the expert’s scientific technique has been subjected to peer

review and publication; (3) whether the method employed has a known rate of error; and

(4) whether the technique is generally accepted in the scientific community. Rink, 400 F.3d

at 1292; see also Quiet Tech. DC–8, Inc. v. Hurel–Dubois UK Ltd., 326 F.3d 1333, 1341 (11th

Cir. 2003).

These reliability factors, however, are non-exhaustive. Kumho Tire, 526 U.S. at 150;

Rink, 400 F.3d at 1292. Thus, “[i]n evaluating the reliability of an expert’s method . . . a

district court may properly consider whether the expert’s methodology has been

contrived to reach a particular result.” Rink, 400 F.3d at 1293 n.7. The burden of

establishing the reliability of an expert’s opinions rests on the proponent of that expert’s

testimony. U.S. v. Frazier, 387 F.3d 1244, 1244 (11th Cir. 2004). The party proffering the

expert also has the burden of “laying the proper foundation for the admission of the

expert testimony . . . and admissibility must be shown by a preponderance of the

evidence.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).

“It is not the role of the district court to make ultimate conclusions as to the

persuasiveness of the proffered evidence.” Quiet Tech. DC–8, Inc., 326 F.3d at 1341. Thus,

the district court cannot exclude an expert because it believes the expert lacks personal

credibility. Rink, 400 F.3d at 1293 n.7. To the contrary, “vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but admissible evidence.” Quiet

Tech. DC–8, Inc., 326 F.3d at 1341 (quoting Daubert, 509 U.S. at 596).

A less-than-perfect expert opinion may still be admitted, even if it contains gaps.

See In re Trasylol Prods. Liab. Litig., No. 08–MD–01928, 2010 WL 1489793, at *6 (S.D. Fla.

Feb. 24, 2010) (“Only if the expert’s opinion is so fundamentally unsupported that it can

offer no assistance to the jury must such testimony be excluded.”).

Furthermore, courts “must be careful not to conflate questions of admissibility of

expert testimony with the weight appropriately to be accorded to such testimony by the

fact finder.” Id. at *7 (quoting Quiet Tech, 326 F.3d at 1341).

On the other hand, courts do not hesitate to exclude purported expert testimony

which does not pass muster. See Allison v. McGhan Medical Corp., 184 F.3d 1300 (11th Cir.

1999) (affirming summary judgment in favor of silicone breast implant manufacturers

and upholding district court’s exclusion of proffered expert’s causation testimony under

Daubert); Rink, 400 F.3d 1286 (affirming exclusion of expert testimony in products liability

and toxic trespass claims against pesticide manufacturer and therefore affirming

summary judgment for defendant); United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004)

(finding trial court in criminal case did not abuse its discretion in excluding proffered

expert testimony from forensic investigator); Hendrix v. Evenflo Co., Inc., 609 F.3d 1183

(11th Cir. 2010) (affirming defense summary judgment for infant car seat manufacturer

in products liability lawsuit involving child who sustained traumatic brain injuries and

upholding trial court ruling which excluded expert testimony because the experts were

not sufficiently reliable).

III. Analysis

“[W]here an expert relies mainly on experience as the basis for an opinion, “the

witness must explain [1] how that experience leads to the conclusion reached, [2] why that

experience is a sufficient basis for the opinion, and [3] how that experience is reliably

applied to the facts.” Payne v. C.R. Bard, Inc., 606 F. App’x 940, 942-943 (11th Cir. 2015)

(emphasis added).

The Undersigned is not convinced that Wankel has the necessary qualifications to

provide expert opinion testimony about the monitor placement or the placement of

warning signs on the dance floor. The mere fact that Wankel was a parks commissioner

or assisted others in placing speakers at large outdoor concerts does not necessarily

equate to having the appropriate qualifications to provide the opinions he seeks to testify

about at trial.

But even if Wankel has sufficient qualifications (which is still very much in doubt),

his primary opinion concerns a basic matter which is not beyond the understanding of a

lay person: whether NCL acted unreasonably in having its employees place the stage

monitor on the dance floor, in front of the stage. Given this reality, his opinion would not

be of help to the jury.

“[E]xpert testimony is not helpful if it simply addresses ‘lay matters which the jury

is capable of understanding and deciding without the expert’s help.’” Faulkner v. Arista

Records LLC, 46 F. Supp. 3d 365, 375 (S.D.N.Y. 2014) (quoting United States v. Mulder, 273

F.3d 91, 101 (2d Cir. 2001)); see also In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164,

173 (S.D.N.Y. 2009).

Helpful expert testimony is admissible because it illuminates matters beyond the

understanding of the average lay person. Frazier, 387 F.3d at 1262 (11th Cir. 2004). Expert

testimony that “offers nothing more than what lawyers for the parties can argue in

closing arguments” generally will not assist the trier of fact and will be excluded. Id. at

1262–63.

The instant lawsuit is not the first federal lawsuit in which Wankel’s proposed

expert opinions were challenged as being unhelpful. See McHugh v. United States, No. 18-

cv-788, 2019 WL 2763845 (S.D.N.Y. July 2, 2019) (excluding Wankel’s proposed expert

testimony about allegedly faulty bearings in roller skates rented at a Government-

operated park as not helpful and noting that the jury would be fully capable of

performing the simple analysis he performed).

Although Wankel performed a test (which did not replicate the relevant

conditions) and also took the skates apart in McHugh, he did not perform any test or do

an inspection here. Instead, he merely, in effect, proclaimed that the placement of the

stage monitor on the dance floor (in a location not on the stage) was risky and

unreasonable. But any juror is capable of reaching that basic conclusion, which means his

proffered opinion improperly usurps the factfinder’s role. See id. at *4; Crawford v. Franklin

Credit Mgmt. Corp., No. 08-CV-6293, 2015 WL 13703301, at *6 (S.D.N.Y. Jan. 22, 2015)

(explaining that jury is fully capable of performing “the same simple mathematical

calculation that Smith performs in his report”); see also In re Rezulin Prod. Liab. Litig., 309

F. Supp. 2d 531, 551 (S.D.N.Y. 2004) (excluding expert testimony where it consisted of a

“narrative of the case which a juror is equally capable of constructing”).

Courts in our circuit readily exclude proposed expert testimony when it is not

helpful to the jury. See generally Umana-Fowler v. NCL (BAHAMAS) Ltd., 49 F. Supp. 3d

1120, 1123 (S.D. Fla. 2014) (excluding opinions of crowd control expert as not helpful after

noting that “this case is [simply] about an accident where one passenger bumped into

another”); Lopez v. Allstate Fire and Casualty Ins. Co., No. 14-20654, 2015 WL 5584898, at *6

(S.D. Fla. Sept. 23, 2015) (excluding as not helpful opinion of attorney experienced in

casualty and insurance law in third-party insurance bad faith action because his opinion

“relate[s] to issues of fact that the jury is capable of determining without the assistance of

an expert” and because his opinions “offer nothing more than what lawyers for the

parties can argue in closing arguments”); O’Malley v. Royal Caribbean Cruises, Ltd., No. 17-

cv-21225, 2018 WL 2970728 (S.D. Fla. Jun. 13, 2018) (excluding purported expert

testimony of chief officer aboard passenger ships in personal injury lawsuit against cruise

ship by a passenger); Easterwood v. Carnival Corp., No. 19-cv-22932, 2020 WL 6880369 (S.D.

Fla. Nov. 23, 2020) (granting defense motion to strike Plaintiff’s expert witness opinions

as unhelpful in a bench trial).

The average juror does not need an expert witness to provide opinions on whether

it is negligent to place a stage monitor speaker on a dance floor in front of the stage, where

cruise ship passengers are dancing. Thus, I find that Wankel’s proposed expert testimony

about the placement of the stage monitor speaker should be excluded.

In its motion, NCL raised the following arguments about Wankel’s other opinions:

(1)Wankel’s opinions concerning insufficient lighting are inadmissible; (2) Wankel’s

opinions regarding the training and skills of Norwegian’s crewmembers, the adequacy

of their personnel files, and that they should have performed a walkthrough inspection

are inadmissible; (3) Wankel’s opinions that Norwegian should have known that most

people drink alcoholic beverages are inadmissible; (4) Wankel’s opinion that the music

distracted Plaintiff is inadmissible; (5) Wankel’s opinions that there were insufficient staff

to monitor guests and that cruise ship passengers are at a higher risk of falls than the

general population are inadmissible; (6) Wankel’s opinion that Norwegian put sound

quality and the safety of its performers over cruise passenger safety is inadmissible; (7)

the legal conclusions contained in Wankel’s report are inadmissible; and (8) Wankel’s lay

opinions about the subject CCTV footage are inadmissible. [ECF No. 97, pp. 11-16].

But Plaintiff did not argue against those challenges in his brief opposition

response. Instead, Plaintiff focuses solely on Wankel’s opinion that “the stage monitor

should have been placed on the stage where it belonged rather than on the dance floor

where it posed a tripping hazard for dancers such as Mr. KATZOFF.” [ECF No. 102, p.

1].

Under this scenario, Plaintiff’s arguments about Wankel’s other opinions are

abandoned and the Court finds those so-called opinions to be inadmissible. See GolTV,

Inc. v. Fox Sports Latin America Ltd., 277 F. Supp. 3d 1301, n. 7 (S.D. Fla. 2017) (noting that

when a party fails to respond to an argument in a responsive brief, the argument can be

considered abandoned); Balbin v. Concepcion, 411 F. Supp. 3d 1340, 1361 (S.D. Fla. 2019);

Kuber v. Prudential Ins. Co. of Am., No. 19-80151-CIV, 2019 WL 7899139, at *4 (S.D. Fla. May

31, 2019); Jones v. Bank of Am., N.A., 564 F. App’x 432, 434 (11th Cir. 2014) (quoting Hudson

v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001)); Cardwell v. Auburn Univ.

Montgomery, 941 F. Supp. 2d 1322, 1329 (M.D. Ala. 2013) (granting in part motion to

dismiss after the plaintiff effectively conceded an argument by failing to respond to it in

the responsive brief).

IV. Conclusion

For the reasons discussed above, the Undersigned respectfully recommends that

Judge Cooke grant NCL’s Motion to Strike/Daubert Motion to Exclude Plaintiff’s Expert

Witness, Edward Wankel.

V. Objections

The parties will have fourteen (14) days from the date of being served with a copy

of this Report and Recommendations within which to file written objections, if any, with

United States District Judge Marcia G. Cooke. Each party may file a response to the other

party’s objection within fourteen (14) days of the objection. Failure to file objections

timely shall bar the parties from a de novo determination by the District Judge of an issue

covered in the Report and shall bar the parties from attacking on appeal unobjected-to

factual and legal conclusions contained in this Report except upon grounds of plain error

if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140,

149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016).

RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, on April 19,

2021.

Jgna Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Marcia G. Cooke

All counsel of record

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