[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 10-12651 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 7, 2011
JOHN LEY
D.C. Docket No. 1:08-cv-22174-JLK
CLERK
LYDIA ROSENFELD,
lllllllllllllllllllll Plaintiff - Appellant,
versus
OCEANIA CRUISES, INC.,
lllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 7, 2011)
Before BARKETT and WILSON, Circuit Judges, and WALTER, District Judge.*
WILSON, Circuit Judge:
*
Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
While a passenger aboard the M/V Nautica, Lydia Rosenfeld slipped and
fell on a ceramic tile floor near the buffet bar of the vessel’s Terrace Café. She
suffered a shoulder fracture and incurred medical expenses as a result of her fall.
Rosenfeld brought this diversity action against the operator of the M/V Nautica,
Oceania Cruises, Inc. (“Oceania”), to recover damages for her injuries. She
claimed, inter alia, that Oceania negligently caused the accident by failing to
provide an adequate flooring surface for the buffet area of the Terrace Café.
To prove her case, Rosenfeld offered the expert testimony of Peter
Vournechis, an Australian floor-safety specialist who performed various
coefficient-of-friction tests to determine the slip resistance of the M/V Nautica’s
flooring surfaces. Vournechis found that, under wet conditions, the ceramic-tile
surface surrounding the Terrace Café had an inadequately low coefficient of
friction. Thus, he proposed to testify at trial that the flooring surface was not
reasonably safe for a self-serve or bistro area, because it posed a high risk for
those passing through the Café to slip and fall.
Following briefing, the district court entered a pre-trial order precluding
Vournechis’s testimony. The court stated only one ground for its decision:
[Rosenfeld] . . . has not established that the proposed liability expert
will provide helpful analysis to the Court in understanding a matter of
scientific, technical or specialized expertise. Instead, the liability
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expert intends to testify that the floor where plaintiff fell is
unreasonably safe for its intended use. Such conclusions are properly
left for the Court or jury to decide.
At trial, Rosenfeld raised the issue again, asking the district court to allow
her to read Vournechis’s deposition to the jury. The court denied her oral motion.
At the close of the evidence, the court instructed the jury, in relevant part, as
follows:
In this case the plaintiff claims that the defendant was negligent and
that such negligence was the legal cause of damage sustained by the
plaintiff. Specifically, the plaintiff alleges that the injury was caused
by Defendant’s failure to choose an adequate flooring surface for the
area where the accident occurred . . . .
In order to prevail on this claim the Plaintiff must prove both of the
following facts by a preponderance of the evidence:
First: That the defendant was “negligent;” and
Second: That such negligence was a “legal cause” of damage
sustained by the plaintiff.
...
If the evidence proves negligence on the part of the Defendant that
was a legal cause of damage to the Plaintiff, you should award the
Plaintiff an amount of money that will fairly and adequately
compensate the Plaintiff for such damage.
Following several hours’ deliberation, the jury returned a verdict for
Oceania. Rosenfeld now appeals from the district court’s orders granting
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Oceania’s motion to preclude the expert testimony and denying Rosenfeld’s
motion for a new trial. For the following reasons, we reverse.
I. STANDARD OF REVIEW
We review the district court’s decision to exclude an expert’s testimony for
an abuse of discretion, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
152, 119 S. Ct. 1167, 1176 (1999), a standard that requires us to defer to the
district court’s evidentiary ruling unless that ruling is “manifestly erroneous.”
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S. Ct. 512, 517 (1997) (quotation
marks omitted). “We will not overturn an evidentiary ruling and order a new trial
unless the objecting party has shown a substantial prejudicial effect from the
ruling.” Maiz v. Virani, 253 F.3d 641, 667 (11th Cir. 2001).
II. DISCUSSION
Rosenfeld argues that the district court abused its discretion by prohibiting
her from introducing expert testimony that Oceania’s choice of flooring posed a
higher danger of slip-and-fall accidents than other surface types. Oceania,
however, argues that the district court’s exclusion of the testimony was proper
under United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (en banc), but that
if any error occurred it was harmless.
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In Frazier, we clarified that trial courts determining the admissibility of
expert testimony under Federal Rule of Evidence 702 must “engage in a rigorous
three-part inquiry,” considering whether:
(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert
reaches his conclusions is sufficiently reliable as determined by the
sort of inquiry mandated in Daubert[v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 113 S. Ct. 2786 (1993)]; and (3) the testimony assists
the trier of fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to determine a
fact in issue.
387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d
548, 562 (11th Cir.1998)). “While there is inevitably some overlap among the
basic requirements—qualification, reliability, and helpfulness—they remain
distinct concepts and the courts must take care not to conflate them.” Id.
Further, “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. v.
Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003); Maiz, 253 F.3d at
666 (“A district court’s gatekeeper role under Daubert is not intended to supplant
the adversary system or the role of the jury.” (internal quotation marks omitted)).
“Quite the contrary, ‘vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
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appropriate means of attacking shaky but admissible evidence.’” Quiet Tech., 326
F.3d at 1341 (quoting Daubert, 509 U.S. at 596, 113 S. Ct. at 2798). Indeed, “in
most cases, objections to the inadequacies of a study are more appropriately
considered an objection going to the weight of the evidence rather than its
admissibility.” Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1188 (9th Cir. 2002).
See also Quiet Tech., 326 F.3d at 1345 (noting that, “[n]ormally, failure to include
variables will affect the analysis’ probativeness, not its admissibility” (quoting
Bazemore v. Friday, 478 U.S. 385, 400, 106 S. Ct. 3000, 3009 (1986)).
Here, the district court excluded Vournechis’s proposed testimony as
unhelpful, explaining that “[s]uch conclusions are properly left for the Court or
jury to decide.” In this instance, we disagree. As the court instructed the jury,
Rosenfeld’s negligence claim arose from “Defendant’s [alleged] failure to choose
an adequate flooring surface for the area where the accident occurred.”
Rosenfeld’s principal theory of the case was that Oceania’s choice of ceramic tile
flooring for the Terrace Café area was unreasonable, given Oceania’s knowledge
that the area was heavily trafficked and susceptible to spills. A qualified expert
who uses reliable testing methodology may testify as to the safety of a defendant’s
choice of flooring, determined by the surface’s coefficient of friction. See, e.g.,
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Great Am. Ins. Co. v. Cutrer, 298 F.2d 79, 80-81 (5th Cir. 1962)1 (noting that both
the plaintiff and defendant presented expert evidence about the coefficient of
friction on the steps and sidewalk where the plaintiff slipped and fell); see also
Santos v. Posadas de Puerto Rico Assocs., Inc., 452 F.3d 59, 63–64 (1st Cir. 2006)
(approving the admission of expert testimony regarding the variable friction
between the pool steps and their edges on the grounds that it was crucial to the
plaintiff’s theory of the case).
Because the jury was not allowed to consider evidence about whether the
slip resistance of the flooring posed a danger to passengers aboard the M/V
Nautica, it could not have found in Rosenfeld’s favor with regard to her main
negligence theory; matters of slip resistance and surface friction are “beyond the
understanding and experience of the average lay citizen.” See United States v.
Rouco, 765 F.2d 983, 995 (11th Cir. 1985). Accordingly, we conclude that the
district court erred by granting Oceania’s motion to preclude Vournechis’s
proposed testimony.
Although the district court discussed only whether Vournechis’s testimony
would be helpful to a jury, Oceania advances a number of arguments on appeal
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions handed down by the Fifth Circuit before October 1,
1981.
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concerning the reliability of Vournechis’s methods. Specifically, Oceania argues
that Vournechis’s methods failed to accurately test for wet conditions, and that his
conclusions were “imprecise and unspecific” and based on “incorrect
assumption[s]” about the location of Rosenfeld’s fall. However, based on the facts
of this case, these arguments attack the weight and the persuasiveness of
Vournechis’s testimony, not its admissibility. Oceania can raise these arguments
on retrial through “‘vigorous cross-examination’” and “‘presentation of contrary
evidence.’” Quiet Tech., 326 F.3d at 1346 (quoting Daubert, 509 U.S. at 596, 113
S. Ct. at 2798).
Finally, we cannot say that the district court’s error was harmless. Because
Rosenfeld was not allowed to admit evidence proving the inadequacy of Oceania’s
choice of flooring surface, the jury could not have found that the floor near the
Terrace Café’s buffet was necessarily unsafe when wet. Consequently, the jury
was not able to consider whether Oceania’s choice of ceramic-tile flooring caused
Rosenfeld’s injuries. This is particularly problematic in light of the negligence
instruction given to the jury that “the plaintiff alleges that the injury was caused by
Defendant’s failure to choose an adequate flooring surface for the area where the
accident occurred.”
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Accordingly, we conclude that a new trial is warranted; Rosenfeld is entitled
to submit expert testimony regarding the adequacy of Oceania’s choice of flooring
surface.
REVERSED AND REMANDED.
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