Altidor v. Carnival Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 20-CV-21516-COOKE/GOODMAN

MARIE ALTIDOR,

Plaintiff,

v.

CARNIVAL CORPORATION,

a foreign corporation, d/b/a

CARNIVAL CRUISE LINES,

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

1 Given Defendant’s filing history, the Undersigned does not make this ruling

without some reservation. Defendant has already been warned by this Court about the

importance of complying with the Court’s deadlines, as well as the Local Rules. [ECF No.

93]. The Undersigned echoes Judge Cooke’s sentiments and reminds Defendant that the

deadlines are not suggestions and that further violations may result in sanctions.

Defendant’s summary judgment was denied without prejudice because the

supporting statement of material facts and supporting materials were filed after

expiration of the summary judgment motion deadline. That procedural mistake is

precisely the mistake Defendant Carnival made again here; it timely filed its Daubert

motion on February 26, 2021 (on the very last day permissible) but untimely filed the

supporting exhibits on March 1, 2021, after the deadline to file Daubert motions expired.

Similar to its mistake with the summary judgment motion, Carnival did not file a motion

for leave to file its supporting materials after the deadline expired. To continue with the

metaphor used above, the ice under Carnival’s litigation skates has now melted.

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.

I. Factual Background

The Undersigned will divide this section into three parts: (1) Factual Allegations;

(2) Tucker’s Expert Report; and (3) Dr. Moya’s Opinions.

a. Relevant Factual Allegations

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.

b. Tucker’s Expert Report2

2 All portions of this section are derived from Tucker’s Report and attached

Curriculum Vitae. [ECF No. 78-2].

i. Tucker’s Curriculum Vitae

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.

ii. Tucker’s Factual Determinations

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.

iii. Tucker’s Opinions

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.

c. Dr. Moya’s Report3

3 All portions of this section are derived from Plaintiff’s Rule 26(a)(2)(B) disclosure.

[ECF No. 81-1].

i. Dr. Moya’s Curriculum Vitae

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 graduate education at three facilities in Miami, the Miami Heart Institute, the Mount

Sinai Medical Center, and the Miami Children’s Hospital.

After completing his final graduate program, Dr. Moya spent ten years as an

Orthopedic Surgeon with a Professional Partnership. Following that, Dr. Moya began

working as a solo practitioner in 1990 and, as of Plaintiff’s Rule 26(a)(2)(B) disclosure, is

still employed in that capacity.

Dr. Moya has testified or given a deposition in more than 50 cases. He is a member

of the American Medical Association, Dade County Medical Association, and South

Florida Orthopedic Association. Additionally, Dr. Moya has received certifications from

the Educational Commission of Foreign Medical Graduates, the State of Florida Board of

Medical Examiners, the American Board of Orthopedic Surgeons, and in Florida

Worker’s Compensation. He has also completed over 1,300 hours of post-graduate

continuing education.

In the past, Dr. Moya has been appointed to a variety of medical boards and

departments. He also teaches or has taught at Barry University and Nova Southeastern

University.

ii. Dr. Moya’s Opinions Relevant to Defendant’s Motion.

Dr. Moya opines as to Plaintiff’s possible necessary future medical treatment.

Specifically, he notes that Plaintiff “may incur” certain medical costs. When discussing

individual medical treatments, Dr. Moya also includes the estimated price of the

treatment.

Dr. Moya opines the following medical treatment may be necessary:

(1) Physical Therapy for acute flare-ups to control pain. The estimated cost

is $2,500 to $3,000 annually, depending on complexity of pain.

(2) Chronic anti-inflammatory and pain medication. The estimated cost is

$1,500 to $2,000 annually, and requires periodic monitoring.

(3) Lumbar trigger point, epidural steroid, or facet/medical branch block

injections. Typically, there are three injections and the injections may be

repeated up to twice annually. The estimated cost is $2,000 to $15,000

per injection.

(4) Lumbar spine surgery for lumbar facet ablation at 3 levels. The

estimated cost is $55,000 to $85,000, depending on factors such as

patient’s age, history, and the operating room time.

(5) Lumber spine surgery for lumbar discectomy and fusion at L4-L5. The

estimated cost is $60,000 to $225,000, depending on factors such as

patient’s age, history, and the operating room time.

(6) Arthroscopic surgery of the left shoulder. The estimated cost is $55,000

to $85,000, depending on factors such as patient’s age, history, and the

operating room time.

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 at 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

Defendant seeks to exclude Tucker from testifying at all and alternatively seeks to

exclude individual portions of his conclusions. Additionally, Defendant asks this Court

to exclude Dr. Moya from testifying about billing costs associated with medical

procedures and future medical treatments Plaintiff may need.

Plaintiff asks this Court to deny Defendant’s motion on the basis that Defendant

did not take depositions of either of the expert witnesses. [ECF No. 81]. Plaintiff supports

this request by citing Ward v. Carnival Corp., No. 17-24628, 2019 WL 1228063 (S.D. Fla.

Mar. 14, 2019) and Continental Motors, Inc. v Jewell Aircraft, Inc., No. 12-0221, 2013 WL

5530842 (M.D. Ala. Oct. 4, 2013) as authority for the proposition that “[c]ourts generally

will deny a Daubert Motion when the party seeking to exclude evidence choose not to

seek a deposition.” [ECF No. 81, p. 3].

This is not the holding of these cases, nor is a deposition a prerequisite to filing a

Daubert motion. When an expert report provides sufficient information, a party “[does]

not need to first attain additional information through a deposition to challenge the

reliability of Plaintiff’s expert.” Golden v. Carnival Corp., No. 14-24899, 2016 WL 11547358,

at *7 (S.D. Fla. Mar. 18, 2016).

The Undersigned notes, however, that many of the rhetorical questions presented

in Defendant’s motion are questions that could (and likely should) have been asked

during a deposition.4 Adopting United States Magistrate Judge Torres’ rationale in Ward,

the Undersigned would be “remiss” if I failed to acknowledge that Defendant elected not

4 The Undersigned is unpersuaded by Defendant’s argument that it was “effectively

preclude[ed] from [] deposing [Tucker] or securing a rebuttal expert.” [ECF No. 77].

Plaintiff filed a motion to extend the deadline to list expert witnesses until February 19,

2021, which the Court granted. [ECF Nos. 40; 41]. Plaintiff complied with the deadline.

Defendant presents no case law holding that a party can be prejudiced due to the

opposing party’s compliance with deadlines. Defendant could have sought an extension

to complete the deposition or it could have attempted to coordinate a deposition with

Plaintiff after the discovery cutoff, as is allowed by the Court’s Order. [ECF No. 54]. The

Undersigned also notes that Court’s initial scheduling order requires Plaintiff to make its

expert available for deposition within fourteen days of listing. [ECF No. 19]. It appears

Defendant made no attempt to avail itself of these opportunities.

to take depositions of either of these witnesses. 2019 WL 1228063, at *5. The questions

posed by Defendant in its motion would have been more appropriately posed to

Plaintiff’s experts and the existence of any unexplained “speculation,” “guesswork,” or

“assumptions” is a fault of Defendant’s own making. Id. Nevertheless, as explained in

Ward, the Court is “in no way saying that [a party] was required to depose” the expert; to

the extent Carnival lacks details about the experts’ opinions, it seems that this “occurred

as a result of [Carnival’s] own failure to seek the information,” and “not because the

expert’s process is somehow lacking.” Id.

a. Tucker’s Qualifications

At the outset, Defendant seeks to exclude the entirety of Tucker’s opinions on the

basis that “[his] education, training and experience is only in shore-side land-based

engineering.” [ECF No. 77]. But Defendant concedes “Mr. Tucker is a well-credentialed

civil engineer.”

Defendant has made no argument about how the barstools in question possess any

quality that is unique to barstools aboard a ship. It seems that Defendant asks this Court

to find that any object, the moment it is placed on a ship, necessitates special adaptation

beyond the understanding of a civil engineer with multiple degrees and decades of

relevant experience. The Court is unwilling make this leap, as there is nothing about this

incident that makes it uniquely maritime. See e.g. Goins v. Royal Caribbean Cruise, Ltd., No.

16-21368, 2017 WL 5891469, at *2 (S.D. Fla. May 31, 2017) (finding a civil engineer, who

was not licensed as a marine or naval engineer, competent to testify as to a slip and fall

on a boat that was no different than a land-based slip and fall); Peck v. Carnival Corp., No.

16-20214, 2017 WL 7726728, at *3 (S.D. Fla. July 13, 2017) (finding a licensed architect,

despite having no special education, experience or specialized knowledge related to

oceangoing vessels, competent to testify as to stairs that were in no way uniquely

maritime).

This defense argument is additionally undermined by the fact that Defendant saw

it fit to task a security guard (who admits he has no experience in maintenance of fixtures)

with disassembling and reassembling the barstools in the Michelangelo lounge.

“’Rule 702 contemplates a broad conception of expert qualifications[,]’ as is

evidenced by the advisory committee notes thereto ‘emphasiz[ing] that Rule 702 is

broadly phrased and intended to embrace more than a narrow definition of qualified

expert.’” Peck, 2017 WL 7726728, at *2 (quoting Hangarter v. Provident Life & Accident Ins.

Co., 373 F.3d 998, 1015 (9th Cir. 2004)) (alterations in original). There is no stringent

requirement: so long as the expert is minimally qualified, objections go to the credibility

and weight of the testimony, not its admissibility. Vision I Homeowners Ass'n, Inc. v. Aspen

Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009).

As explained, Tucker has extensive educational and practical experience relevant

to the subject matter. In addition, he has attended a number of specialized courses and is

a university lecturer on the topics of: Construction Management and Methods,

Construction Engineering II, CADD Applications for Civil Engineers, Structural Systems,

Analysis of Framed Structures, Structural Steel Connection Design, and Behavior of Steel

Structures. The Undersigned is satisfied that Tucker is qualified to testify regarding the

workings of a barstool with no identified special or unique properties. The Undersigned

denies Defendant’s request to exclude Tucker’s testimony based on a purported lack of

expertise.

b. Reliability of Tucker’s Methods

Defendant argues that there is simply too great an analytical gap between the data

and Tucker’s proffered opinion. [ECF No. 77]. Plaintiff counters that Tucker states in his

report that “[t]he opinion and conclusions expressed in this report are based upon a

review of the material currently available to us, as well as our knowledge, education,

training, and experience in mechanical engineering, forensic engineering and accident

reconstruction, and have been reached within a reasonable degree of engineering

certainty.” [ECF No. 81]. In reply, Defendant argues that this “magic language” does not

somehow make Tucker’s opinions reliable. [ECF No. 82].

Defendant’s argument does not hold water and it attempts to discount Tucker’s

statements by isolating them. In the context of reliability, trial courts are given

“considerable leeway in deciding in a particular case how to go about determining

whether particular expert testimony is reliable.” Adams v. Laboratory Corp. of America, 760

F.3d 1322, 1327 (11th Cir. 2014) (quoting Kumho Tire, 526 U.S. at 152). “[T]he proponent of

the testimony does not have the burden of proving that it is scientifically correct, but that

by a preponderance of the evidence, it is reliable.” Allison v. McGhan Medical Corp., 184

F.3d 1300, 1313 (11th Cir. 1999).

While the Daubert framework is helpful to determine reliability, it does not

mandate that every factor in Daubert be satisfied. Kumho Tire, 526 U.S. at 150-51. The Court

has broad discretion, not only in determining an expert’s reliability, but also in how to

examine an expert’s reliability. Id. Regardless of whether Tucker wrote the purportedly

“magic language,” he has also, from a substantive perspective, sufficiently explained that

his opinions are based on the evidence provided to him (e.g., the videos and depositions),

various industry materials (e.g., the International Building Code and the various ASTMs),

his substantial education, and his extensive practical experience.

Defendant is, again, hamstrung by its decision not to take Tucker’s deposition.

Instead of pointing to flaws, inconsistencies, or actual analytical gaps in Tucker’s

methodology, Defendant is left to making conclusory statements that Tucker’s methods

are unreliable.

There is no “magic language” an expert is required to use, and the Undersigned

finds that Tucker appropriately based his opinions on reliable methodology. Defendant,

indeed, has not even contended that Tucker’s educational experience or the industry

materials reviewed are unreliable, just that they are not applicable to ship used barstools.

The Undersigned will next address each of Defendant’s individual requests to

exclude portions of Tucker’s testimony.

i. The Identity of the Subject Screw as the Screw Used During

Plaintiff’s Alleged Fall.

Defendant claims there is a “galactic analytical gap” between the evidence and

Tucker’s “unsupported assumption” that the subject screw is, in fact, the same screw that

was in the barstool during Plaintiff’s alleged fall. Plaintiff, in turn, argues that the

circumstances of the inspection and Carnival’s own admissions, combined with Tucker’s

analysis, are sufficiently reliable.5

At the beginning of Tucker’s report, he defines and provides a comprehensive

analysis of a barstool’s mechanics. Additionally, Tucker gives a breakdown on the types

of, and differences between, screws and bolts.

After outlining the subject matter’s foundation, Tucker details his observations

from the inspection videos. He details the type, length, and relative wear and tear of each

of the examined screws. Then, Tucker describes the function of the screws within the

barstools, while also providing additional remarks about the state of the damage to the

barstools and presence of additional substances.

5 Plaintiff, in her argument, also accuses Defendant of Spoliation. A Daubert motion

response is an inappropriate forum to raise such a claim. Plaintiff fails to even request a

remedy for the alleged violation. In the absence of a specific spoliation-based motion, the

Undersigned declines to address this spoliation allegation any further.

Tucker next gives his assessment of the subject screw. Tucker’s assessment of the

screw takes into account the following factors: (1) the subject screw’s characteristics; (2)

the impact those characteristics have on the mechanics of a barstool; (3) the likely use of

the barstool during the COVID-19 Pandemic; and (4) the characteristics of the barstool in

which the subject screw was placed. In particular, Tucker emphasizes the damage to the

screw, the amount of time it would take for that damage to occur given the manner in

which a barstool operates, the damage to the barstool, and the presence of lubricant on

the barstool.

Based on this analysis, Tucker opines that “the subject screw is likely the screw

which was installed in the barstool on the date of the alleged accident.” [ECF No. 78-2].

The Undersigned believes Tucker’s methodology is reliable based on the evidence

reviewed, the extent of his analysis, and Tucker’s education and experience in civil

engineering.

Plaintiff need only meet this burden by a preponderance of the evidence. Allison

184 F.3d at 1306. Defendant has failed to counter the reliability of Tucker’s methodology

and, instead, relies on the arguments of its attorneys rather than any record evidence.

Latele Tele., C.A. v. Telemundo Commc'ns Grp., LLC, No. 12-22539, 2014 WL 7272974, *7 (S.D.

Fla. Dec. 18, 2014) (“Rhetoric and attorney argument are no substitute for record

evidence.”). The Court’s gatekeeper role is not intended to supplant that of the jury:

“[v]igorous 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.” Allison, 184 F.3d at 1311 (quoting Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579, 596 (1993)) (alterations in original).

Certainly, Defendant can challenge Tucker’s opinions on this issue during trial, as

it also could have done, had it chosen to, during deposition. Defendant’s qualms and

additional questions, however, do not necessitate a finding that Tucker’s opinion on the

subject screw is unreliable. The Undersigned denies Defendant’s request to exclude

Tucker’s opinion on this issue.

ii. Presence of Lubricant on the Barstool

The next portion of Tucker’s testimony Defendant seeks to have this Court exclude

is Tucker’s opinion/observation that there was lubricant on the barstool during the

inspection and when the incident occurred. In its motion, Defendant contends that Tucker

cannot know whether there was lubricant because he could not touch, feel, or smell

lubricant. [ECF No. 77]. Plaintiff says there is nothing unique about Tucker’s

determination and it is clear from the video inspection that lubricant was applied to the

barstool in question. [ECF No. 81]. Defendant, still not conceding the existence of

lubricant, replies that even if there was lubricant, nobody can know when or why it was

applied. [ECF No. 82].

In the portions of Tucker’s report referencing lubricant, he makes the following

observations/conclusions:

The scarifications [on the subject barstool] can be witnessed on the base as

well as a blackened lubricant (photograph 8) . . . The rotational assembly

was rotating on the base for so long that the rotational assembly and base

surface were both worn from the friction. Likewise, lubricant was added to

the base to prevent squeaking when the metals rubbed and to allow

smoother rotation . . . The author opines that Carnival Cruise lines was

aware the barstool did not function properly because lubricant was placed

between the rotational assembly and the base.

[ECF No. 78-2].

As a preliminary matter, the Undersigned rejects Defendant’s assertion that

Tucker is unable to recognize lubricant or differentiate it from dirt without touching,

feeling, or smelling it. If the Undersigned were to take this line of thinking to its logical

conclusion, then an individual would be unable to ever offer an opinion on anything he

or she viewed through a video. This rationale would necessitate an untenable finding that

it is impossible, for example, to know if a surface is wood, steel, plastic, or carpet without

having the opportunity to touch, feel, or smell it.

The Undersigned can also not find any direct mention in Tucker’s report where he

expressly and unequivocally claims that lubricant was present at the time of the alleged

incident. Tucker’s report, however, does seem to implicitly opine that the lubricant’s

presence indicates that Carnival must have known at the time of the incident the barstool

was malfunctioning. If this is, in fact, what Tucker is opining (and I am uncertain because

the record on the issue is unclear), then the Undersigned is currently unconvinced that

the methods in which Tucker reached this conclusion are reasonable.

Regardless of Tucker’s ability to determine that lubricant was present on the

barstool at the time of the January 5, 2021 inspection, it seems implausible, if not

impossible, for him to be able to conclude—as opposed to speculate—that there must

have been lubricant on the barstool April 19, 2019, when the alleged incident occurred.

United States v. Frazier, 387 F.3d 1244, 1272 (11th Cir. 2004) (“[T]he trial judge's role as

gatekeeper is designed to ensure that the jury, in carrying out its prescribed role, bases

its determinations on relevant and reliable evidence, rather than on speculation or

otherwise unreliable conjecture.”). However, due to the underdeveloped factual record,

the Undersigned cannot be certain Tucker intends to even offer this opinion.

On these principles, the Undersigned denies this aspect of Defendant’s motion as

to Tucker’s opinion regarding the presence of lubricant on the date of the inspection and

denies without prejudice Defendant’s request to prohibit Tucker from testifying as to

when the lubricant was placed or whether it was present on the day of the incident, until

a sufficient factual record is developed on the issue. Continental Motors, Inc., 2013 WL

5530842, at *8 (denial without prejudice is appropriate where there is an insufficient

factual record to address the reliability of an expert’s methodology).

iii. The Length of the Subject Screw

Referring to the opinion as conjecture, Defendant next asks this Court to strike

Tucker’s opinion regarding the length of the screw, questioning how somebody could

know a screw is too long without knowing how deep the hole is. [ECF No. 77]. Plaintiff

responds that Tucker noted the screw had been cut, a washer had been used, and [t]he

subject screw, when tightened, allowed the rotational assembly to rotate on the base

when the seat was rotated.” [ECF No. 81].

In Tucker’s report, he discusses the comparative length of the screws used in 14 of

the 15 barstools (one inch in 11 of the 15 barstools, 7/8 inches in 2 of the 15 barstools, and

1 3/8 inches in one of the 15 barstools). Additionally, Tucker references a photograph

(titled “[d]istance subject screw projects through base”) showing the subject screw

protruding 7/8 inches above the top of the base. He expresses this opinion in the context

of the frictional wear seen on both the rotational assembly and the base of the barstool.

Without a sufficient factual record, the Undersigned cannot say whether these

factors serve as the basis for Tucker’s opinion, whether they are reliable, or whether they

are even relevant.

But, the Undersigned has only Tucker’s Report on which to base my findings.

Federal Rule of Civil Procedure 26(a)(2)(B) requires an expert report contain the

following:

(i) a complete statement of all opinions the witness will express and the

basis and reasons for them;

(ii) the data or other information considered by the witness in forming

them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored

in the previous 10 years;

(v) a list of all other cases in which, during the previous four years, the

witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony

in the case.

Fed. R. Civ. P. 26(a)(2)(B). Tucker’s report meets these requirements and Defendant has

not timely moved to strike the report as insufficient. It would be inappropriate to strike

this aspect of Tucker’s testimony without him being given an opportunity to explain or

elaborate on the issue. Without additional evidence (which presumably could have been

developed in a deposition), there is just as much a possibility that the opinion could be

either reliable or unreliable.

Due to the lack of a sufficient factual record, the Undersigned denies without

prejudice this aspect of Defendant’s motion.

iv. Tucker’s Reliance on Various Materials

Defendant suggests this Court should “properly preclude[] Mr. Tucker from

testifying that the ASTM or international property codes apply to the Carnival Sensation.”

[ECF No. 77]. Plaintiff responds by arguing these standards are admissible as bearing on

the standard of care in determining negligence. [ECF No. 81].

Defendant argues that Amy v. Carnival Corp., 360 F. Supp 3d 1345 (S.D. Fla. 2018)

and Fylling v. Royal Caribbean Cruises, No. 18-CV-21953, 2019 WL 8760909 (S.D. Fla. June

13, 2019) are “on-point” and should guide the Court’s analysis. Plaintiff provides

Holderbaum v. Carnival Corp., 87 F. Supp. 3d 1345 (S.D. Fla. 2015) as a basis for its

opposition. The Undersigned will address each of those cases in turn.

Defendant’s reliance on Amy is concerning. Not only is the relevant portion of the

opinion dicta, but the case was reversed by the Eleventh Circuit and no mention is made

of this in Defendant’s motion or reply. See Amy v. Carnival Corporation, 961 F.3d 1303 (11th

Cir. 2020). Amy involved a three-year old child who fell over or through railing meant to

prevent cruise passengers from falling to the beneath deck. Amy, 260 F. Supp at 1349. The

court determined that the plaintiff’s expert’s reliance on the IBC and NFPA did not, as a

matter of law, establish constructive notice because they are voluntary, non-binding

standards. Id. at 1356. In a footnote, the Amy Court hinted as dicta that these standards

would be inadmissible at trial but also acknowledged other district courts have ruled

differently.

Fylling involved an elderly 71-year old plaintiff who tripped through an

entranceway due to conditions and hazards related to the ramp area. 2019 WL 8760909,

at *1. The Court, citing to Amy, held that ASTM F1637-95 is inadmissible as a land-based

non-binding standard related to safe walking surfaces. Id. at * 5.

In Plaintiff’s provided case, Holderbaum, the plaintiff’s shoe caught a metal strip on

the top stair, causing her to fall down the stairs. 87 F. Supp. 3d at 1348. The Holderbaum

Court, in denying the defendant’s summary judgment motion, considered evidence of

ASTM 1637-95, stating, “the law in the Eleventh Circuit, as established by the former Fifth

Circuit, is that advisory guidelines and recommendations, while not conclusive, are

admissible as bearing on the standard of care in determining negligence.” Id. at 1358.

The Undersigned is persuaded by the reasoning in Holderbaum, for both its logic

and its consistency with other cases in this district. Here, while Defendant claims these

codes are completely inapplicable to maritime issues, it has failed to identify how this

issue is at all uniquely maritime. Peck v. Carnival Corp., 2017 WL 7726728, at *6 (allowing

an expert to rely on International Building Codes, stating “even if the standards utilized

by [the expert] in the formation of his opinions are not mandatory on cruise ships, [the

expert’s] explanation regarding passengers’ expectation pertaining to stairway design

based upon standards accepted by the international community of architects is reliable.”).

“Additionally, where the hazard alleged is not unique to the maritime

environment, it is not necessary to apply only maritime standards (which seemingly do

not exist).” Id. When an injury is of the type that could occur on land and does, in fact,

occur in similar ways also on land, such standards, even if not exclusively maritime, are

admissible and relevant. Cook v. Royal Caribbean Cruises, Ltd., No. 11-20723, 2012 WL

1792628, at *4 (S.D. Fla. May 15, 2012).

Because Defendant’s motion only contests Tucker’s reliance on ASTM or

International Property Maintenance Codes, the Undersigned will address only those

materials. The ASTM codes relied on by Tucker involve codes related exclusively to the

function of, among other similar topics, threaded fasteners, washers, direct tension, bolts,

screws, studs, and tensile strength. Defendant would be hard-pressed to argue that the

threads of screws/bolts—and the science of friction/tension—work differently the

moment the item is moved from land to a boat. Again, this incident involves a barstool;

to the extent the International Property Maintenance Code provides guidance to the

standards of barstool construction, the Undersigned is unconvinced it is inapplicable

when the barstool is on a boat.

This reasoning is bolstered by the fact that Defendant has not provided any

alternative acceptable “exclusively maritime” standards addressing the topics of the

materials which Plaintiff’s expert relied upon.

The Undersigned finds the materials Tucker relied upon are appropriate and

denies this facet of Defendant’s motion. The Undersigned issues this ruling with the

caveat that I am not determining the precise purposes for which these standards are

admissible, and the District Court will be able to later determine to what extent Tucker

may rely on these materials.

v. Portions of Tucker’s Conclusions

In a Section titled “Mr. Tucker’s conclusions are not based on any scientific

methodology,” Defendant challenges Tucker’s conclusions that “lack of maintenance and

inadequate repair caused the incident, that the condition would not have been readily

observable to [Plaintiff] and a different screw would have cured the problem.” [ECF No.

77]. Plaintiff, of course, disagrees. [ECF No. 81].

Tucker addresses the lack of maintenance and inadequate repair only after

describing in detail the function of a barstool, the purpose of individual parts of the

barstool, and the damage seen on the subject barstool and its individual parts. Defendant

is free to challenge these opinions on cross examination, but there is no gap which would

preclude their admissibility.

Tucker’s statement that the condition would not have been observable to Plaintiff

is a commonsense statement. One does not need to be an expert to know that people do

not look under or disassemble barstools to determine their functionality before sitting on

them. Damage seen only after the barstool was disassembled is obviously not readily

observable. Nor would it be farfetched for Tucker to understand a lay person does not

know the types of screws meant for barstools to function properly.

Tucker’s conclusion about the effect a change in screw type would have on the

subject barstool is based on analysis and reason. Tucker first describes the types of screws

meant to be used in constructing barstools. Then his report explains why a hex-headed

screw is ideal (i.e., it allows for proper torqueing). After this discussion, Tucker advises

that a different screw could have cured the issue.

Due to the analysis in Tucker’s report, the Undersigned denies this aspect of

Defendant’s motion.

vi. Wear and Tear of the Subject Screw

Defendant’s final challenge to Tucker’s testimony is his analysis of the “wear and

tear” to the subject screw. [ECF No. 77]. Plaintiff counters that Tucker’s conclusion was

based on all the available materials and his experience as an engineer. [ECF No. 81].

In making this challenge, Defendant poses a series of hypothetical questions to the

court: questions which, again, would be more appropriately posed to Tucker in a

deposition. The Undersigned does not discount these questions, as they may very well

be appropriate and persuasive to a jury. However, an expert’s report needs to comply

only with Federal Rule of Civil Procedure 26(a)(2)(B), it need not answer every possible

question an opposing party may have.

Tucker’s education and professional experience is substantial. Throughout his

report, he discusses the function of a barstool, how the subject screw would interact when

placed in a barstool, the observable damage to the subject screw’s threads, and accounts

for the assumed use of the barstool during the COVID-19 pandemic. His conclusion is

reasonably sound. If Defendant believes any of the factors considered by Tucker are

incorrect, then it can present them at trial

Finding no issue with Tucker’s analysis in this regard, the Undersigned denies

this facet of Defendant’s request.

c. Dr. Moya’s Qualifications

Dr. Moya began his practice in 1980 and worked as part of a professional

partnership for the next ten years. Since that time, Dr. Moya has been a solo practitioner,

operating his own practice for approximately 31 years. Dr. Moya initially received his

medical degree in Spain in 1975, following it with three graduate programs at the Miami

Heart Institute, Mount Sinai Medical Center, and Miami Children’s Hospital.

Dr. Moya holds professional certifications with the Educational Commission of

Foreign Medical Graduates, State of Florida Board of Medical Examiners, American

Board of Orthopedic Surgeons, and Florida’s Worker’s Compensation Certification.

Additionally, since 1985, Dr. Moya has completed more than 1,300 hours of continuing

education in the medical field.

i. Likelihood of Future Medical Costs

Defendant asks this Court to preclude Dr. Moya from testifying about future

medical expenses Plaintiff may incur as too speculative, stating “[p]ossibilities do not

suffice for admissibility.” [ECF No. 77]. Defendant asserts this argument because Dr.

Moya opined that Plaintiff “may” incur certain future medical costs. Plaintiff responds

that Dr. Moya properly couched his opinions with facts and provided a legitimate basis

for each of the future medical expenses.

Neither party provided any case law directly addressing this issue.

Plaintiff’s Complaint invokes this Court’s diversity jurisdiction and its admiralty

and/or maritime jurisdiction. [ECF No. 1]. Defendant, however, denies Plaintiff’s

invocation and concedes only to admiralty jurisdiction. [ECF No. 15].

When admiralty jurisdiction is proper, maritime law applies even if diversity

jurisdiction is also applicable. See Kornberg v. Carnival Cruise Line, Inc., 741 F.2d 1332, 1334

(11th Cir. 1984) (despite the fact that the plaintiff alleged diversity jurisdiction, “[s]ince

the complained of injury occurred upon a ship in navigable waters, admiralty jurisdiction

is also present and maritime law governs the outcome of the suit.”); see also Jackson v.

Carnival Cruise Lines, Inc., 203 F. Supp. 2d 1367, 1373 (S.D. Fla. 2002) (“Even when, as here,

the parties allege diversity of citizenship as a basis of subject matter jurisdiction, if

admiralty jurisdiction also exists, federal maritime law governs the substantive issues of

the case.”)

Maritime law is ordinarily governed by federal law. See World Tanker Carriers Corp.

v. MV Ya Mawlaya, 99 F.3d 717, 723 (5th Cir. 1996). “But, when neither statutory nor

judicially created maritime principles provide an answer to a specific legal question,

courts may apply state law provided that the application of state law does not frustrate

national interests in having uniformity in admiralty law.” Coastal Fuels Mktg., Inc. v.

Florida Express Shipping Co., 207 F.3d 1247, 1251 (11th Cir. 2000).

General maritime allows for the recovery of past and future medical expenses.

Consolidated Mach., Inc. v. Protein Products Corp., 428 F. Supp 209, 228 (M.D. Fla. 1976); see

also Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620-CIV, 2011 WL 3703329 (S.D. Fla. Aug.

23, 2011) ((“[Maritime] [p]laintiff is entitled to recover . . . past and future medical

expenses.”) (quoting Schumacher v. Cooper, 850 F. Supp. 438, 453 (D.S.C. 1994)). While

federal common law allows a plaintiff to recover future medical expenses under

admiralty jurisdiction, neither the common law nor any statute answers the question of

standard for admissibility of such evidence. Therefore, it is appropriate to look to state

law.

“Florida law restricts recovery of future medical expenses to those expenses

‘reasonably certain’ to be incurred.” Volusia Cnty. v. Joynt, 179 So. 3d 448, 452 (Fla. 5th

DCA 2015). This is the standard cited by Defendant in its motion. [ECF No. 77]. However,

when an expert opines about future medical expenses, “whatever qualification is placed

on the opinion by the expert (i.e., surgery is possible or likely) goes to the weight of the

opinion, and not its admissibility.” White v. Westlund, 624 So. 2d 1148, 1151 (Fla. 4th DCA

1993). A doctor is not required to use the phrase “reasonably necessary” to permit her

testimony. Id. at 1151. (“[A] medical expert may testify that future medical procedures

are ‘possible’ or ‘likely,’ and need not phrase an opinion in terms of such surgery or

treatment being ‘reasonably necessary.’”).

Applying these principles to the instant action will not frustrate the national desire

for uniform admiralty law. In this context, the state law neither raises nor lowers Daubert’s

standards for admissibility of expert testimony. Rather, in a manner consistent with

Daubert, it leaves the matter of credibility and weight to the jury. Quiet Tech. DC–8, Inc.,

326 F.3d at 1341 (“It is not the role of the district court to make ultimate conclusions as to

the persuasiveness of the proffered [expert] evidence.”).

Moreover, Defendant has not cited any authority holding that an expert’s opinion

is permissible only where a future medical cost is guaranteed to occur. For example, a

doctor could say that a patient might require surgery if he does not change his diet. Or, as

a more common example, if an infection is not treated, then additional medical

intervention via surgery or medicine may become necessary.

Further, Defendant has asserted no claim that Dr. Moya is unqualified to offer

these opinions, nor does the Undersigned believe he lacks the requisite background.

Defendant’s argument about the burden is more appropriately presented to a jury, which

can accept or reject (or partially accept) the opinion, rather than in a Daubert motion.

The Undersigned denies this aspect of Defendant’s motion.

ii. Cost of Medical Care

Defendant claims that Dr. Moya is unqualified to testify as to the cost of medical

care. [ECF No. 77]. Plaintiff contends, in response, that Dr. Moya has been a doctor since

1975 and he provides a wealth of information in his analysis. [ECF No. 81].

The Undersigned finds Plaintiff’s arguments persuasive and Defendant’s only

cited case is distinguishable from the instant situation.

Dr. Moya’s descriptions of the lumbar spine surgeries for lumbar facet ablation

and lumbar discectomy and for the arthroscopic surgery of the left shoulder are

illustrative that this is not guesswork or an area outside Dr. Moya’s knowledge. In each

circumstance, he indicates that the estimates include, when applicable, operating room

time, hardware, supply costs, hospital charges, anesthesia fees, and post-surgical

equipment. Additionally, he notes that the fees vary based on outside factors such as age,

medical history, and operating room time.

Dr. Moya has been a solo practitioner for over three decades. It is difficult to think

he would have no understanding of the costs associated with the procedures necessary

and part of his practice. If he were not aware, then he would be fully unable to address

overhead or provide adequate referrals for patients. Further, the nature of this evaluation

and opinion are bolstered by the fact that Plaintiff’s medical records include summaries

of visits with two other doctors, both of whom included the estimated price of future

treatment.

Defendant’s sole case is markedly different than the situation in front of this Court.

In Rinker v. Carnival Corp., No. 09-23154, 2012 WL 37381 (S.D. Fla. Jan. 6, 2012), the doctor:

(1) never treated or spoke with the plaintiff; (2) included conclusions he could provide no

factual support for and were outside his expertise (i.e., the cost of an attendant/driver);

and (3) were based on the life expectancy of a healthy 62-year-old woman, which the

plaintiff, who had stage three colon cancer, was not.

Defendant’s argument about the existence of billing professionals, code billing,

and medical coding is simply the argument of counsel. Moreover, even if the

Undersigned were to consider this as record evidence, the fact that another specialization

may be more adept at offering this opinion does not mean Dr. Moya is not qualified.

Vision I Homeowners Ass'n, Inc., 674 F. Supp. 2d at 1325 (qualifications are not a stringent

requirement: so long as the expert is minimally qualified, objections go to the credibility

and weight of the testimony, not its admissibility). Defendant is free to probe the grounds

of Dr. Moya’s opinions at trial, on cross-examination.

Based on the foregoing, the Undersigned denies this aspect of Defendant’s motion.

IV. Conclusion

For the reasons discussed above, the Undersigned denies Defendant’s request to

exclude Tucker’s testimony as outside the scope of his expertise.

Additionally, the Undersigned denies Defendant’s request to exclude Tucker’s

testimony as unreliable.

Further, the Undersigned denies Defendant’s request to exclude Tucker’s

testimony about the likelihood of the subject screw being the same screw that was in the

barstool during the incident.

The Undersigned also denies Defendant’s request to exclude Tucker’s testimony

about the presence of lubricant during the January 5, 2021 inspection and denies without

prejudice, until a sufficient factual record is created, the exclusion of testimony by Tucker

about the presence of lubricant at any time before the January 5, 2021 inspection.

The Undersigned denies without prejudice Defendant’s request to exclude

Tucker’s testimony about whether the subject screw was too long until a sufficient factual

record is created.

Moreover, the Undersigned denies Defendant’s request to exclude Tucker’s

testimony regarding the reviewed ASTMs and the International Property Maintenance Code.

The Undersigned additionally denies Defendant’s request to exclude Tucker’s

testimony due to lack of scientific methodology.

The Undersigned further denies Defendant’s request to exclude Tucker’s

testimony on the wear and tear of the subject screw.

Additionally, the Undersigned denies Defendant's request to prohibit Dr. Moya

from testifying about future medical necessities.

Last, the Undersigned denies Defendant’s request to prohibit Dr. Moya from

testifying about the estimated cost of medical treatment.

DONE AND ORDERED in Chambers, in Miami, Florida, on July 27, 2021.

Jgna Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Marcia G. Cooke

All counsel of record

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