# Mondella

> District Court, E.D. New York · December 15, 2025

URL: https://www.frixlaw.com/law-library/cases/11225404

## Case

- **Full name:** Robert Mondella and Tara Mondella v. Schiffahrtsgesellschaft Oltmann mbH & Co. KG, Schiffahrtsgesellschaft Oltmann Verwaltung mbH, and Hansecontor Shipmanagement GmbH & Co. KG
- **Court:** District Court, E.D. New York
- **Decided:** December 15, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11225404

## How later opinions describe it (automated extraction)

- holding that “only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

ROBERT MONDELLA and TARA
MONDELLA,

Plaintiffs, MEMORANDUM & ORDER
v. 20-CV-01059 (HG) (PK)

SCHIFFAHRTSGESELLSCHAFT
OLTMANN mbH & CO. KG,
SCHIFFAHRTSGESELLSCHAFT
OLTMANN VERWALTUNG mbH, and
HANSECONTOR SHIPMANAGEMENT
GmbH & CO. KG,

Defendants.

HECTOR GONZALEZ, United States District Judge:
At its core, this case involves an alleged injury on a ship. Specifically, Plaintiffs Robert
Mondella and Tara Mondella allege that Mr. Mondella was seriously injured when he fell from a
gangway while performing services on board the JPO Capricornus (the “Capricornus”), a vessel
owned by Defendants. See ECF No. 1.1
Mr. Mondella claims that his injuries were a result of Defendants’ negligence, and that
Defendants are liable for damages pursuant to the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. § 905(b). Presently before the Court is Defendants’ consolidated
motion, in which they move, first, pursuant to Federal Rule of Evidence 702 and the Daubert v.
Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) line of cases, to exclude the report and

1 Unless otherwise indicated, when quoting cases and the parties’ papers, the Court omits
all internal quotation marks, alteration marks, emphases, footnotes, and citations. The Court
refers to the pages assigned by the Electronic Case Files system (“ECF”), except when quoting to
deposition transcripts, where the Court cites to the original page number on the native document.
When citing to the parties’ Rule 56.1 statements, the Court incorporates references to the record.
testimony of Plaintiffs’ expert witness, Captain Joseph Ahlstrom (“Capt. Ahlstrom”); and,
second, pursuant to Federal Rule of Civil Procedure 56, for summary judgment dismissing
Plaintiffs’ claims. See ECF No. 73.
For the reasons stated below, Defendants motion to exclude the report and testimony of

Capt. Ahlstrom is GRANTED, and Defendants’ motion for summary judgment is GRANTED.
BACKGROUND
I. Relevant Facts
The following facts are either undisputed by the parties or presented in the light most
favorable to Plaintiffs.2
This action is based on events that occurred on April 11, 2019, on or near the
Capricornus, a nearly 900-foot-long container vessel capable of carrying thousands of shipping
containers, that Defendants own. ECF No. 57-1 at 8. At all relevant times, the Capricornus was
docked at the Howland Hook Marine Terminal in Staten Island, a facility owned and operated by
Global Container Terminal. Id. at 2, 8. Global Container Terminal was also Mr. Mondella’s

employer during the relevant period. Id.
The gangway of the Capricornus lies at the heart of this action. At approximately
7:00 am on the morning of April 11, 2019, the vessel’s crew assembled the gangway. ECF
No. 57-3 at 16:2–7. Shortly after it was assembled, Mr. Mondella first used the gangway to
board the Capricornus and began unlashing containers on the vessel. ECF No. 57-1 at 9.

2 Unless otherwise indicated, the Court recites the facts from Plaintiffs’ counterstatement
to Defendants’ Rule 56.1 statement to the extent those facts are undisputed by the parties and
incorporates their references to the record, as “a reasonable trier of fact, weighing the conflicting
evidence and resolving all ambiguities and credibility determinations in Plaintiff[s’] favor, could
infer that the following events transpired.” Grant v. City of New York, No. 15-cv-3635, 2019
WL 1099945, at *4 (E.D.N.Y. Mar. 8, 2019).
Mr. Mondella and others used the gangway throughout the morning, and the gangway was
inspected at regular intervals. Id.; ECF No. 73-5 at 29:10–31:5, 33:8–18, 34:10–19; 68:17–
69:13.
At approximately 1:30 pm, after he finished unloading another round of containers,

Mr. Mondella was using the gangway to disembark the vessel. ECF No. 57-1 at 9. As he made
his way down the gangway, part of the handrail he was using became loose when a pin
disengaged. Id. Without the pin, the handrail shifted forward, id. at 9–11, and Mr. Mondella fell
down several of the gangway’s steps, injuring his neck and back. Id.
II. Procedural Background
Mr. Mondella initiated this action on February 26, 2020, ECF No. 1, suing Defendants
for negligence under the Longshore and Harbor Workers’ Compensation Act of 1972, 33 U.S.C.
§ 905(b) (the “LHWCA”), and Defendants answered the original Complaint on June 22, 2020,
ECF No. 13. On March 12, 2021, Mr. Mondella filed an Amended Complaint, adding his wife,
who is suing Defendants for, inter alia, loss of society related to her husband’s alleged injury.

ECF No. 20 ¶¶ 21–24.
After protracted discovery, the parties filed a joint status report on November 20, 2023, in
which they stated, in relevant part, that discovery would be completed by December 8, 2023, and
that “[n]o dispositive motions [were] anticipated.” ECF No. 48 at 1.
Nonetheless, on February 27, 2024, Defendants filed a letter requesting a pre-motion
conference in anticipation of a motion for summary judgment. ECF Nos. 52, 53. But, because
that letter failed to comply with the Court’s Individual Rules, the Court struck it but gave the
parties another opportunity to file pre-motion letters. Feb. 27, 2024, Text Order. Defendants
filed another letter in anticipation of a motion for summary judgment and to preclude expert
testimony. ECF Nos. 54, 55. Plaintiffs opposed that motion. ECF Nos. 56, 57. In their letter,
Plaintiffs indicated for the first time their intention to seek spoliation sanctions, and the Court
directed the parties to brief the sanctions issue before proceeding to the summary judgment
briefing. The parties filed their respective briefs in due course, see ECF Nos. 59, 60, 61, and on

July 9, 2024, the Court issued its Order denying Plaintiffs’ motion for sanctions, Mondella v.
Schiffahrtsgesellschaft Oltmann mbH & Co. KG, No. 20-cv-1059, 2024 WL 3343954 (E.D.N.Y.
July 9, 2024). The Court also directed the parties to proceed to summary judgment briefing.
July 9, 2024, Text Order.
Ultimately, pursuant to the Court’s Order directing Defendants to file both parties’
motion papers, Dec. 10, 2024, Text Order, on March 17, 2025, Defendants filed: their
consolidated motions to exclude Capt. Ahlstrom’s testimony and for summary judgment, ECF
No. 73; Plaintiffs’ consolidated opposition to their motions, ECF No. 74; and their reply, ECF
No. 75.
LEGAL STANDARD

I. Summary Judgment
Summary Judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A court should grant summary judgment “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party
has the burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (moving party entitled to summary judgment where the
“nonmoving party has failed to make a sufficient showing on an essential element of her case
with respect to which she has the burden of proof”). “Where the moving party demonstrates the
absence of a genuine issue of material fact, the opposing party must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly &

Co., 654 F.3d 347, 358 (2d Cir. 2011). In deciding a summary judgment motion, any
ambiguities and inferences drawn from the facts must be viewed in the light most favorable to
the nonmoving party. LaFond v. Gen. Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995).
“In reviewing the evidence and the inferences that may reasonably be drawn, [the Court] may not
make credibility determinations or weigh the evidence . . . [such functions], and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.” Proctor v.
LeClaire, 846 F.3d 597, 607–08 (2d Cir. 2017).
II. The Longshore and Harbor Workers’ Compensation Act
The LHWCA establishes a comprehensive workers’ compensation program for
longshoremen who suffer from qualifying injuries. Section 905(b) sets forth circumstances in

which the vessel may be held liable for a worker’s injuries. It provides, in relevant part, that:
In the event of injury to a person covered under this chapter caused by the
negligence of a vessel, then such person, or anyone otherwise entitled to recover
damages by reason thereof, may bring an action against such vessel as a third
party. . . . The remedy provided in this subsection shall be exclusive of all other
remedies against the vessel except remedies available under this chapter.
33 U.S.C. § 905(b). In situations involving “the typical tripartite situation” between a
longshoreman, his independent stevedore-employer, and the vessel, “the longshoreman . . .
may . . . recover tort damages if he can prove negligence by the vessel.” Jones & Laughlin Steel
Corp. v. Pfeifer, 462 U.S. 523, 530 (1983). The contributory negligence of the longshoreman
will not bar recovery, though his comparative fault may be considered in mitigation of damages.
See O’Hara v. Weeks Marine, Inc., 294 F.3d 55, 66 (2d Cir. 2002).
Though Section 905(b) uses the term “negligence,” it does not define it. Howlett v.
Birkdale Shipping Co., S.A., 512 U.S. 92, 97–98 (1994). Therefore, the Supreme Court, in
Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981) (“Scindia”), “outlined the
three general duties shipowners owe to longshoremen”:

The first, which courts have come to call the “turnover duty,” relates to the
condition of the ship upon the commencement of stevedoring operations. . . . The
second duty, applicable once stevedoring operations have begun, provides that a
shipowner must exercise reasonable care to prevent injuries to longshoremen in
areas that remain under the “active control of the vessel.” The third duty, called
the “duty to intervene,” concerns the vessel’s obligations with regard to cargo
operations in areas under the principal control of the independent stevedore.
Howlett, 512 U.S. at 98 (citing Scindia, 451 U.S. at 167–78). A breach of any of these three
duties—often referred to as the “Scindia duties”—“gives rise to a right of action under
[Section] 905(b).” Vargas v. APL Ltd., 431 F. Supp. 3d 82, 88 (E.D.N.Y. 2019) (citing Howlett,
512 U.S. at 98 and collecting cases).
III. Federal Rule of Evidence 702
In the context of a motion for summary judgment, the Court considers only admissible
evidence, and “has wide discretion in determining which evidence is admissible.” Nora
Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). When evaluating
the admissibility of expert testimony, Federal Rule of Evidence 702 controls. Rule 702 permits
expert testimony, provided that it is relevant and reliable, i.e., the proponent demonstrates, by a
preponderance of the evidence, that:
(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’s opinion reflects a reliable
application of the principles and methods to the facts of the case.

Fed. R. Evid. 702; Daubert, 509 U.S. at 593, 593 n.10.
The Court, for its part, “must determine: (1) whether the witness is a qualified expert;
(2) whether the opinion is based on application of reliable data and methodology to the facts of
the case; and (3) whether the expert’s testimony will assist the trier of fact to understand the
evidence or determine an issue of fact.” Boateng v. Bayerische Motoren Werke

Aktiengesellschaft, No. 17-cv-209, 2022 WL 4357555, at *10 (E.D.N.Y. Sept. 20, 2022).
Because “[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,” Daubert, 509 U.S. at 596, the “exclusion of expert testimony is
warranted only when the district court finds serious flaws in reasoning or methodology,” Lickteig
v. Cerberus Cap. Mgmt., L.P., 589 F. Supp. 3d 302, 330 (S.D.N.Y. 2022). Although the Rule
702 standard is not particularly onerous, it “still imposes limits on how shaky an expert’s
testimony [may] be,” Wills v. Microgenics Corp., No. 20-cv-4432, 2025 WL 2208291, at *3
(E.D.N.Y. Aug. 4, 2025), and bars expert testimony that is “speculative or conjectural or based
on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in

essence an apples and oranges comparison,” Restivo v. Hessemann, 846 F.3d 547, 575–76 (2d
Cir. 2017).
DISCUSSION
Because “[t]he Court may only consider admissible evidence in evaluating the parties’
motions for summary judgment,” Wills v. Microgenics Corp., No. 20-cv-4432, 2025 WL
2208291, at *2 (E.D.N.Y. Aug. 4, 2025) (citing Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.
1997)), the Court addresses Defendants’ motion to preclude the testimony of Capt. Ahlstrom
before addressing their motion for summary judgment. Forte v. Liquidnet Holdings, Inc.,
No. 14-cv-2185, 2015 WL 5820976, at *4 (S.D.N.Y. Sept. 30, 2015), aff’d, 675 F. App’x 21 (2d
Cir. 2017) (citing Raskin, 125 F.3d at 66) (“[W]hen a party offers expert testimony . . . and a
separate motion has been made to preclude such testimony, a court must decide the motion to
preclude first, in order to determine whether such testimony may be considered in connection
with the summary judgment motion.”).

I. The Motion to Preclude Capt. Ahlstrom’s Expert Testimony
Defendants move to preclude Capt. Ahlstrom’s testimony by arguing that the six opinions
in his expert report, see ECF No. 74-19 at 10–11, “blow through the[] guardrails” that Rule 702
“erects . . . to protect against the substantial risk of unfair prejudice improper expert opinions
pose,” ECF No. 73 at 20. With no hint of irony, Defendants ask the Court to find that the
metaphorical guardrails of Rule 702 apply such that they preclude the expert testimony of
Capt. Ahlstrom, which concerns the literal guardrails on the gangway of the Capricornus.
Defendants challenge each of the enumerated opinions in Capt. Ahlstrom’s report on at
least one of the following grounds: (1) that he is unqualified; (2) that his opinions are
speculative, conjectural, or otherwise rely on insufficient evidence; and (3) that he relies on

principles or methods that are inappropriate or otherwise improper for expert testimony. See
ECF No. 73 at 20–25. In Defendants’ view, when these infirmities are stacked up,
Capt. Ahlstrom’s report “do[es] not assist the Court or trier of fact, but pose[s] a substantial risk
of unfairly prejudicing Defendants,” and, therefore, should be excluded in its entirety. Id.
Plaintiffs contest most of Defendants’ arguments,3 and argue that “based on [Capt. Ahlstrom’s]

3 Plaintiffs concede that Opinion 4 and Opinion 6 should be “precluded.” ECF No. 74 at
35 n.22. In light of those concessions, Defendants’ arguments as to those paragraphs of
Capt. Ahlstrom’s report are moot. See Manbro Energy Corp. v. Chatterjee Advisors, LLC,
No. 20-cv-3773, 2023 WL 2563054, at *2 (S.D.N.Y. Mar. 17, 2023) (finding defendants’ motion
in limine moot “to the extent [they] seek to preclude evidence or argument that [p]laintiff has
disclaimed”). Accordingly, the Court does not consider them for the purposes of the instant
motions. See Nora Beverages, Inc., 164 F.3d at 746.
specialized and relevant knowledge, skill, experience, training and education, and his review of
the referenced materials,” his testimony satisfies Rule 702’s requirements. See ECF No. 74 at
29–37.
A. Capt. Ahlstrom’s Qualifications
The Court begins by evaluating Capt. Ahlstrom’s qualifications. Defendants’ arguments

in this regard concern Capt. Ahlstrom’s “defective pin theory,” in which he posits that the
accident occurred because the pin used in the gangway handrail was dangerous due to its “rusted
and deteriorated condition.” ECF No. 74-19 at 10. Defendants argue that Capt. Ahlstrom “is not
a metallurgist, possesses no educational background, training, or experience in the field of
metallurgy, and is not qualified to opine on metallurgical matters (i.e., whether the pin was
rusted or corroded, leading it to be in a ‘defective’ condition).” ECF No. 73 at 21. Plaintiffs
argue that Capt. Ahlstrom’s metallurgic bona fides, or lack thereof, is a “quibble [] of no
moment,” because his extensive experience as a ship’s Master and “with this exact type of
gangway pin” are sufficient to qualify him as an expert that can reliably testify about the
condition of the pin. ECF No. 74 at 30–31 (emphasis in original).

Although Capt. Ahlstrom is an expert, his expertise on “hundreds if not thousands of
[gangways]” demonstrates that he has experience generally with the type of gangway pin at
issue, ECF No. 74 at 30–31, but it does not demonstrate that his expertise extends to qualify him
to render the testimony about the condition and structural integrity of the pin at issue here.
Plaintiffs’ focus on Capt. Ahlstrom’s experience on large ships demonstrates only that his
experience with this type of pin has been tangible, i.e., his expertise is based on his ability to
touch, see, and test every angle and aspect of a pin. However, it does not demonstrate that
Capt. Ahlstrom’s experience qualifies him to opine on the condition of this pin—a pin that he
experienced only through a photograph. See ECF No. 74 at 31–32.
Capt. Ahlstrom does not need to be a classically trained metallurgist, but he must have
experience such that the Court is persuaded that his opinions on the condition of the at-issue pin
are as reliable as his opinions based on other pins that were available for him to inspect in
person. Plaintiffs have failed to demonstrate that Capt. Ahlstrom has experience in evaluating

the condition of gangway pins through a single photograph. Because Plaintiffs have not
demonstrated that Capt. Ahlstrom has such experience, Plaintiffs have failed to demonstrate by a
preponderance of the evidence that Capt. Ahlstrom is qualified to testify about matters of
deterioration or structural integrity under these circumstances.
B. Capt. Ahlstrom’s Testimony is not Based on Sufficient Data nor is it the
Product of Reliable Principles and Methods
Even if Capt. Ahlstrom’s qualifications were enough to save his testimony concerning the
pin at issue here, the “focus [of the admissibility inquiry] must be solely on [the potential
expert’s] principles and methodology.” Daubert, 509 U.S. at 595. That focus reveals that
Rule 702 bars the entirety of Capt. Ahlstrom’s testimony because his testimony is not based on
sufficient facts or data, is not the product of reliable principles and methods, and his opinions do
not reflect a reliable application of such principles and methods. See Fed. R. Evid. 702. The
Court addresses each of these deficiencies in turn.
i. Capt. Ahlstrom’s Testimony is not Based on Sufficient Data
Plaintiffs fail to demonstrate that portions of Capt. Ahlstrom’s testimony are based on
“sufficient facts or data.” Fed. R. Evid. 702(b).
Defendants challenge various parts of Opinions 2, 3, and 5 of Capt. Ahlstrom’s report on

the grounds that they are “speculative/conjectural,” i.e., rely on insufficient facts or data.
Specifically, with respect to Opinion 2, Defendants argue that Capt. Ahlstrom’s “failure to
perform in-person inspection/testing renders [Opinion 2] speculative/conjectural” and “is based
on no data at all.” ECF No. 73 at 21–22. Defendants challenge the “lack of factual support” for
statements in Opinion 3 and challenge Opinion 5 because it has “no factual support.” Id. at 24.
At bottom, Defendants rely on the fact that Capt. Ahlstrom did not inspect the relevant
pin or gangway in person. Although the failure to conduct such inspection is not enough, by

itself, to render expert testimony unreliable, Plaintiffs do not demonstrate that his testimony
concerning his review of the available materials is reliable. In fact, Plaintiffs demonstrate the
opposite. Plaintiffs previously stated in their spoliation motion that “without the subject pin
available for inspection, there is no way for [P]laintiffs to determine . . . any hidden danger
presented by the pin’s condition,” and “no way for [P]laintiffs to determine whether
[D]efendants exercised due care in using the subject pin by failing to conduct a reasonable
inspection.” ECF No. 59-14 at 19–20. In other words, Plaintiffs conceded that without the
tangible pin, their expert would not have access to sufficient facts or data necessary to determine
the pin’s condition—those concessions are fatal.
If there was not enough information for Plaintiffs’ expert to determine material facts

about the pin’s condition then, there is certainly not enough information now. Plaintiffs cannot
credibly demonstrate that Capt. Ahlstrom’s testimony regarding the subject pin is based on
sufficient facts or data. In other words, “there is simply too great an analytical gap between the
data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). That
analytical gap renders the portions of the testimony that concern the condition of the pin
speculative and conjectural. Because Rule 702 bars such speculative and conjectural testimony,
Restivo, 846 F.3d at 575–76, the Court must preclude it.
ii. Capt. Ahlstrom’s Testimony is not the Product of Reliable
Principles and Methods
The fact that significant portions of the testimony rely on insufficient facts or data raises
questions about whether the rest of the testimony is based on reliable principles and methods, but
that question is not left unanswered for long. In fact, the first paragraph of Capt. Ahlstrom’s
report, i.e., Opinion 1, reveals that it is not a reliable application of such principles and methods.
The remaining paragraphs fare no better.
Specifically, Defendants argue that: Opinion 1 is “nothing more than pure conclusions of
law that usurp[s] the role of the trial judge,” ECF No. 73 at 20; Opinion 2, in addition to the
flaws already discussed, fails to “properly consider and rule out reasonable alternative causes of

[Mr.] Mondella’s injury,” id. at 22; Opinion 3 improperly opines on “on alleged violations of
law/regulations . . . [and] a supposed causal connection between a law/code violation and an
injury, which is the province of the judge/jury,” id. at 24; and that Opinion 5 improperly
“wrest[s] from the Court its role of instructing the jury as to the applicable law” because it opines
on the duties of the Capricornus or longshoremen, id.
The Court is not persuaded by Plaintiffs’ counter arguments. With respect to Opinion 1,
Plaintiffs argue that Capt. Ahlstrom is merely “provid[ing] background information based on his
extensive experience.” ECF No. 74 at 35. The Court is not convinced. Even a cursory review
of Opinion 1 shows a striking similarity to Plaintiffs’ theory of the duty of care in this case.
Compare ECF No 74-19 at 10 (“[Capricornus] personnel were responsible for deploying the

gangway, inspecting the gangway, and maintaining an active gangway watch to ensure the safety
of all who board and disembark the Vessel . . . [Mr.] Mondella ha[s] absolutely no
responsibility . . .”), with ECF No. 74 at 19–28 (arguing the gangway was under the exclusive
control of Capricornus personnel, that the Defendants breached their “active control duty,” and
that the Capricornus breached its “turnover duty”). This similarity is “inappropriate” because
Opinion 1 is, nothing more than an expert “simply accumulating and putting together one party’s
story,” which is “expressly prohibited.” Kozak v. Liberty Mar. Corp., 729 F. Supp. 3d 277, 294
(E.D.N.Y. 2024).

As to Opinion 2, Plaintiffs do not respond to Defendants’ arguments concerning the
failure to consider reasonable alternative causes. This is fatal because “if an expert fails to
adequately account for obvious alternative explanations, the testimony is not reliable.” Faison-
Williams v. United States, No. 24-1404, 2025 WL 974831, at *3 (2d Cir. Apr. 1, 2025); Fed. R.
Evid. 702 advisory committee’s note (“Whether the expert has adequately accounted for obvious
alternative explanations” is one of several factors that “[c]ourts both before and after Daubert
have found . . . relevant in determining whether expert testimony is sufficiently reliable to be
considered by the trier of fact.”). Capt. Ahlstrom’s failure to consider potential alternative
explanations, and Plaintiffs’ failure to address this deficiency, further undermine the Court’s
confidence that the subject testimony is the product of reliable principles and methods.

The Court agrees with Defendants that Opinion 3 is effectively a legal conclusion dressed
up as expert testimony. See ECF No. 73 at 24. Expert opinions on legal conclusions are
improper and impermissible; courts cannot allow experts to testify to legal conclusions, because
doing so “would give the appearance that the court was shifting to witnesses the responsibility to
decide the case.” Marx & Co. v. Diners’ Club Inc., 550 F.2d 505, 510 (2d Cir. 1977); see also
Golden v. OSG Ship Mgmt., Inc., No. 14-cv-06636, 2017 WL 11454726, at *3 (S.D.N.Y. Oct.
12, 2017) (“An expert cannot be permitted to testify to the legal consequences of any alleged
code violations, because it is the role of the court to determine what violations would
demonstrate negligence and the role of the jury to determine whether such violations occurred.”).
Here too, Plaintiffs fail to address Defendants’ arguments concerning the appropriate principles
and methods necessary for expert testimony, and, therefore, fail to demonstrate that Opinion 3
“reflects a reliable application of the principles and methods to the facts of the case.” Fed. R.
Evid. 702.

Opinion 5 is improper for the same reasons as Opinions 1 and 3. Most of Opinion 5 is a
mere recitation of Plaintiffs’ theory of the case (which, as previously discussed, is “expressly
prohibited,” Kozak, 729 F. Supp. 3d at 294). The remaining portions are overt legal conclusions
about the duty of care and causation. See ECF No. 74-19 at 10 (“[Mr.] Mondella had no such
duty or responsibility [and] [h]ad Vessel crew check[ed] the pin to make sure the drop
nose/folding pin was properly seated, [he] would not have been injured”). Again, as the Court
previously discussed, those types of conclusions “cannot be permitted.” See Golden, 2017 WL
11454726, at *3.
To the extent Capt. Ahlstrom’s testimony was not already barred due to his qualifications
(see Part I.A, supra), or because his testimony was based on insufficient data (see Part II.B.i,

supra), the instant analysis makes clear that Capt. Ahlstrom’s testimony suffers from “serious
flaws in reasoning or methodology.” Lickteig, 589 F. Supp. 3d at 330. Plaintiffs’ failure to
demonstrate that their proposed expert’s testimony “is the product of reliable principles and
methods,” or “a reliable application of the principles and methods to the facts of the case” is
particularly troubling, as the principles-and-methods components of Rule 702 is the crux of the
Court’s inquiry. See Fed. R. Evid. 702(c)–(d); Amorgianos v. National R.R. Passenger Corp.,
303 F.3d 256, 267 (2d Cir. 2002).
C. Capt. Ahlstrom’s Testimony Will Not Assist the Trier of Fact to
Understand the Evidence or Determine an Issue of Fact
Concerns about the reliability of Capt. Ahlstrom’s reasoning and methodology, the
sufficiency of available data, and the other infirmities discussed above lead the Court to the
inescapable conclusion that Capt. Ahlstrom’s testimony will not assist the trier of fact. See Fed.
R. Evid. 702(a). Taken together, Plaintiffs fail to demonstrate that Capt. Ahlstrom’s testimony
satisfies even one of the four requirements of Rule 702. Therefore, the Court finds “that there is
simply too great an analytical gap between the data and the opinion proffered.” Joiner, 522 U.S.
at 146. That analytical gap renders Capt. Ahlstrom’s testimony at best, irrelevant, useless, and
sure to waste time. See Fed. R. Evid. 403. More likely, the testimony poses a substantial risk of

unfair prejudice, confusion, and misleading the jury. See id. Regardless, it is inadmissible—
Defendants’ motion to exclude Capt. Ahlstrom is granted.
II. The Motion for Summary Judgment
Plaintiffs argue, in effect, that they have presented a straightforward negligence case
based on the doctrine of res ipsa loquitur, and because Defendants breached two of the Scindia
duties (the “active control” and “turnover” duties), which led to Mr. Mondella’s injuries.4 See
ECF No. 74 at 19–28. Defendants move for summary judgment on Plaintiffs’ claims, arguing
that res ipsa loquitur does not apply “given the undisputed fact that Defendants did not have
exclusive control of the instrumentality that allegedly led to [Mr.] Mondella’s injury,” and that
Plaintiffs cannot demonstrate a breach of any Scindia duty and, therefore, cannot prove the

essential elements of their claim under the LHWCA. See ECF No. 73 at 6–7.

4 The third Scindia duty does not apply here, as Plaintiffs “do not contend that the ‘duty to
intervene’ applies here.” ECF No. 59-14 at 18 n.7; see also ECF No. 73 at 6.
A. Res Ipsa Loquitur
Plaintiffs invoke the doctrine of res ipsa loquitur, arguing that application of the doctrine
“presents an issue of fact for a jury.” ECF No. 74 at 19. For the doctrine to apply, Plaintiffs
must establish each element of the res ipsa loquitur test: “(1) the event was of a kind which
ordinarily does not occur in the absence of someone’s negligence; (2) it was caused by an agency

or instrumentality within the exclusive control of the defendant; and (3) it was not due to any
voluntary action or contribution on the part of the plaintiff.” St. Paul Fire & Marine Ins. Co. v.
New York, 907 F.2d 299, 302 (2d Cir. 1990). Defendants challenge that the doctrine applies at
all. Specifically, they argue that “the exclusive control element is unsatisfied as a matter of law
given that third parties had access to the gangway.” ECF No. 75 at 5.
The Court agrees with Defendants. Plaintiffs do not demonstrate that the gangway was in
Defendants’ exclusive control, and “it is not enough to prove that the defendant had control if
there is sufficient evidence that a third party also had access to the instrumentality that caused the
injury.” St. Paul Fire & Marine Ins. Co., 907 F.2d at 303. In fact, Plaintiffs demonstrate the
opposite. It is undisputed that the gangway was used by others. See ECF No. 57-1 at 6

(undisputed that “various stevedores came up and down the gangway”); see also ECF No. 57-3
at 35: 3–14 (describing various longshoremen, and “authorities from the shore” using the
gangway during the relevant period).
Here, because there is no genuine dispute over whether others used the gangway,
Plaintiffs fail to satisfy the second element of the res ipsa loquitur test, and the doctrine does not
apply. See Maitland v. Target Corp., No. 20-cv-3892, 2023 WL 6282918, at *8 (E.D.N.Y. Sept.
26, 2023), aff’d, 2024 WL 5182674 (2d Cir. Dec. 20, 2024) (“The doctrine of res ipsa loquitur is
inapplicable since the record does not indicate that Defendant[s] had ‘exclusive control.’”).
Accordingly, Defendants are entitled to summary judgment with respect to Plaintiffs’ res
ipsa loquitur claims.
B. The Turnover Duty
The first Scindia duty, the turnover duty, has two components: (1) a primary “duty to
take ordinary care” that “requires that a vessel must surrender the ship ‘in such condition that an

expert and experienced stevedoring contractor, mindful of the dangers he should reasonably
expect to encounter . . . will be able by the exercise of ordinary care’ to carry out his operations
with reasonable safety”; and (2) a “corollary ‘duty to warn’” that requires vessels to warn
stevedores “of hazards that are ‘known to the vessel or should be known to it in the exercise of
reasonable care’ and which are ‘not known . . . and would not be obvious’ to the stevedore ‘if
reasonably competent in the performance of his work.’” Giganti v. Polsteam Shipping Co., 997
F. Supp. 2d 182, 192 (E.D.N.Y. 2013), aff’d, 588 F. App’x 74 (2d Cir. 2015) (quoting Howlett,
512 U.S. at 98–99). Notably, “[t]here is no duty to turn over an absolutely safe vessel.” Sinagra
v. Atl. Ocean Shipping, Ltd., 182 F. Supp. 2d 294, 300 (E.D.N.Y. 2001).
Defendants argue that “there is absolutely zero evidence” that they failed to turnover the

Capricornus “in a safe condition, nor is there any evidence of an unsafe condition which, in the
exercise of reasonable care, Defendants should have known about.” ECF No. 73 at 25. Plaintiffs
argue that Defendants breached the primary duty by failing to inspect the drop nose pin before
allowing Mr. Mondella and others to use the gangway. ECF No. 74 at 27–28.
As an initial matter, nothing in the record suggests that the gangway was in a hazardous
condition when stevedoring operations commenced on the date of Mr. Mondella’s accident. See
Howlett, 512 U.S. at 92 (the turnover duty “relates to the condition of the ship upon
commencement of stevedoring operations”). In fact, the deposition of Ordinary Seaman Ramon
Jiminez (a member of the Capricornus’ crew that was assigned to gangway watch on April 19,
2019) confirms that “one of the ship crew members . . . inspect[ed] the gangway to make sure
that it was safe for the longshoremen to use to come aboard.” ECF No. 73-5 at 28:16–22; see
also ECF No. 57-3 at 29:10–18, 30: 8–20, 34: 7–19 (describing the initial inspection of the
gangway). Further, Mr. Mondella stated that he used the gangway to first board the Capricornus

at approximately 7:00 am on April 11, 2019, and that he “had not noticed a problem.” ECF
No. 57-1 at 9. Thus, even when viewed in a light favorable to Plaintiffs, the record reflects that,
at the time stevedoring operations commenced, Mr. Mondella was able “to carry out his
operations with reasonable safety.” Giganti, 997 F. Supp. 2d at 192. Accordingly, there is no
dispute that Defendants satisfied the turnover duty.
For the avoidance of doubt, the Court notes that Plaintiffs’ counter arguments are
unpersuasive. Plaintiffs’ primary support for their argument that Defendants breached the
turnover duty is Capt. Ahlstrom’s testimony, in which he states his opinion that Defendants
breached the turnover duty by failing to inspect the pin and account for its defects. See ECF
No. 74 at 27–28 (citing ECF No. 74-17 ¶ 10; ECF No. 74-19 at 10). However, that testimony

has been excluded for the reasons previously discussed in this Order. See Part I, supra. And,
when “expert testimony is found inadmissible under Rule 702, then the remaining ‘summary
judgment determination is made by the district court on a record that does not contain that
evidence.’” Boateng, 2022 WL 4357555, at *9 (quoting Humphrey v. Diamant Boart, Inc., 556
F. Supp. 2d 167, 173–74 (E.D.N.Y. 2008)). For secondary support, Plaintiffs direct the Court to
the Declaration of Richard Gonzalez. See ECF No. 74 at 28. However, this testimony is
inapposite, as the declarant recounts his investigation of the gangway after Mr. Mondella “fell
down a ship’s gangway leading from the vessel [Capricornus] to the pier,” ECF No. 74-20 ¶ 2,
and, therefore, does not speak to the condition of the gangway “at the time the stevedore embarks
upon its operations.” Sinagra, 182 F. Supp. 2d at 300.
For these reasons, even after reviewing the record in the light most favorable to Plaintiffs,
the Court finds that not only have they failed to demonstrate a genuine issue of material fact with

respect to Defendants’ satisfaction of the turnover duty, but that the record supports that
Defendants satisfied that duty. Accordingly, Defendants are entitled to summary judgment on
this claim.
C. The Active Control Duty
Once a stevedore’s operations have begun, a vessel may be liable “if it actively involves
itself in the cargo operations and negligently injures a longshoreman.” Gravatt v. City of New
York, 226 F.3d 108, 121 (2d Cir. 2000) (quoting Scindia, 451 U.S. at 167)) (emphasis in
original). Even if the vessel is not actively involved in cargo operations, this duty applies “where
the vessel . . . exercises ‘active control’ over the ‘equipment’ used by the longshoremen, or []
exercises ‘active control’ over the ‘areas’ where the longshoremen are working.” Vargas, 431
F. Supp. 3d at89 (quoting Gravatt, 226 F.3d at 121). Stated otherwise, the “active control duty”

is comprised of two, related obligations “arising either from the vessel’s ‘active involvement’ in
cargo operations or its ‘active control’ of areas of the vessel encountered by longshoremen.”
Gravatt, 226 F.3d at 121. Where the allegations concern equipment or areas used by
longshoremen, “the vessel must take care to prevent unreasonable hazards in areas of the vessel
under its direct control.” Id.
To establish that the Capricornus is liable for breaching the active control duty, Plaintiffs
must establish: (i) that the duty was triggered; (ii) that it was breached; and (iii) that the breach
proximately caused Mr. Mondella’s injuries. See Vargas, 431 F. Supp. 3d at 89; Trueba v. Flota
Bananera Ecuadorian Lines, Inc., 675 F. Supp. 786, 788 (S.D.N.Y. 1987) (“plaintiff bears the
burden of establishing four elements: duty, breach, causation, and damage” under § 905(b) of
the LHWCA). Here, Plaintiffs fail to establish that the active control duty was triggered.
However, even if this duty was triggered, Plaintiffs fail to establish that Defendants breached it.
It is undisputed that Defendants were not actively involved in cargo operations.

Accordingly, the Court’s inquiry focuses on whether equipment at issue—here, the gangway—
was under Defendants’ active control. Defendants argue that the active control duty does not
apply, because they “were not actively controlling the gangway within the meaning of Scindia at
the time of [Mr.] Mondella’s fall.” ECF No. 73 at 33. Plaintiffs argue that this duty applies
because the gangway was under Defendants’ “exclusive control,” which, in Plaintiffs’ view, “at
least includes ‘active’ control.” ECF No. 74 at 24–26.
The Court agrees with Defendants: Plaintiffs have not shown that the active control duty
applies. When a vessel is not actively involved in stevedoring operations, as is the case here,
“[t]he focus of the active control inquiry is on unreasonable hazards in areas of the vessel under
its actual direct control.” Giganti, 997 F. Supp. 2d at 195 (emphasis in original). A vessel

exercises control in this context if it “retain[s] substantial control, or because the vessel
substantially interfered, by invitation or otherwise, with the stevedore’s exercise of exclusive
control.” Rivera v. Arctic Ocean Shipping Ltd., No. 09-cv-4672, 2012 WL 1004840, at *6
(E.D.N.Y. Mar. 23, 2012) (quoting Davis v. Portline Transportes Mar. Internacional, 16 F.3d
532, 541 (3d Cir. 1994)).
Here, Plaintiffs’ arguments regarding exclusive control fail for the same reasons the
Court rejected their res ipsa loquitur theory. See Part II.A, supra. Defendants did not have
direct control of the gangway because, after initial inspection on the morning of the accident,
Defendants ceded control of the gangway to stevedoring operations, as discussed earlier in
connection with the turnover duty. See Part II.B, supra. From that point onward, Plaintiffs have
failed to point to any record evidence indicating that Defendants substantially interfered with
stevedoring operations. Although some members of the vessel’s crew were monitoring the
gangway while serving as “gangway watch,” see ECF No. 57-3 at 35:3–20, 47:5–23, the act of

monitoring alone does not rise to interference with stevedoring operations, let alone the
substantial interference required in this context, cf. Rivera, 2012 WL 1004840, at *6 (active
control duty triggered when employee of vessel, who was supervising operations, ordered
stevedore to move equipment in dangerous manner). Next, even if Plaintiffs demonstrated that
Defendants had exclusive control over the gangway, they fail to present a genuine dispute that
Defendants failed to “take care to prevent unreasonable hazards in areas of the vessel under its
direct control.” Gravatt, 226 F.3d at 121. In fact, undisputed evidence supports that Defendants
satisfied their duty. Defendants assembled the gangway hours before Mr. Mondella’s fall, ECF
No. 57-3 at 16:2–7; separate vessel crew inspected the gangway to ensure it was made up safely,
ECF No. 73-5 at 28:16–29:8; and they inspected the gangway throughout the day, including

inspection about one hour before Mr. Mondella’s fall, id. at 29:10–31:5, 33:8–18, 34:10–19;
68:17–69:13.5 Further, the undisputed record reflects that the gangway was in good working
order because it was used multiple times by multiple longshoremen (including Mr. Mondella)
and others before Mr. Mondella’s fall. Id. at 35:3–20, 69:22–70:20; ECF No. 73-7 at 64:15–

5 Without more, Defendants’ access to the gangway and their ability to inspect the
gangway are not enough to trigger the active control duty. See O’Hara v. Weeks Marine, Inc.,
294 F.3d 55, 66 (2d Cir. 2002) (even though vessel employee was “supervising the barge’s
salvaging operations,” the active control duty was not triggered until employee, aware “of the
risks posed by that operation, [] negligently ordered [stevedore] to lift the stay-in-place forms”);
see also Vargas, 431 F. Supp. 3d at 89–90 (noting that “courts have consistently held that the
active control duty is triggered when the vessel orders longshoremen to engage in specific
stevedoring tasks” and collecting cases).
66:6, 68:14–70:21. Stated otherwise, the record reflects that Defendants took care (through
various procedures, throughout the day) to prevent unreasonable hazard. See Giganti, 997
F. Supp. 2d at 195–96 (even though active control duty did not apply, no breach of duty when
defendant prevented unreasonable hazard); see also DeBiase v. Cat Island Shipping, Ltd.,

No. 07-cv-3057, 2009 WL 3077193, at *9 (E.D.N.Y. Sept. 25, 2009) (even though active control
duty did not apply, no breach of duty because record reflects defendant was not negligent).
Plaintiffs fail to show that these facts are in dispute. Again, Capt. Ahlstrom’s testimony
does not create a factual dispute because, as already discussed, the Court’s determination must
rely “on a record that does not contain that evidence.” Humphrey, 556 F. Supp. 2d at 173–74.
Plaintiffs’ emphasis on Defendants’ post-accident investigation report is similarly misplaced
because Federal Rule of Evidence 407 precludes subsequent remedial measures as evidence of
“negligence; culpable conduct; a defect in a product or its design; or a need for a warning or
instruction.” Fed. R. Evid. 407. Plaintiffs cannot rely on that report, regarding steps the
Capricornus identified to improve vessel safety after the accident, to generate a factual dispute

because inadmissible evidence does not create a dispute of fact. See Est. of Hamilton v. City of
New York, 627 F.3d 50, 53 (2d Cir. 2010) (district court “correctly excluded” evidence of
subsequent remedial measures on summary judgment because such evidence “plainly runs afoul
of Rule 407 of the Federal Rules of Evidence”); Diaz v. Calabrese, No. 13-cv-1531, 2014 WL
6883517, at *8 (E.D.N.Y. Dec. 4, 2014) (evidence “inadmissible under Federal Rule of Evidence
407” cannot prove negligence for purposes of summary judgment); see also Presbyterian Church
Of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264–65 (2d Cir. 2009) (holding that “only
admissible evidence need be considered by the trial court in ruling on a motion for summary
judgment”).6
In sum, even if the active control duty was triggered, Plaintiffs fail to demonstrate that
duty was breached. Again, the admissible, undisputed record shows the exact opposite.

Accordingly, the Court grants Defendants’ motion for summary judgment on this point.
CONCLUSION
For the reasons stated above, Defendants’ motion, pursuant to Federal Rule of Evidence
702 and the Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) line of cases, to
preclude the testimony of Capt. Ahlstrom is GRANTED. Defendants’ motion, pursuant to
Federal Rule of Civil Procedure 56, for summary judgment dismissing Plaintiffs’ claims is also
GRANTED.
The Clerk of Court is respectfully directed to enter judgment consistent with this Order
and close this case.

SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge

Dated: Brooklyn, New York
December 15, 2025

6 Plaintiff’s argument that the post-accident investigation report is admissible as a
statement against interest, see ECF No. 74 at 17 n.8, is unpersuasive, as an exception to the rule
against hearsay cannot override the Rule 407 problem. See Paolitto v. John Brown E. & C., Inc.,
151 F.3d 60, 64 (2d Cir. 1998) (“[T]he fact that evidence is within an exception to the hearsay
rule does not by itself make it admissible per se.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11225404. Public record. Not legal advice.