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Eleventh Circuit Awards New Trial to Hear Expert Witness Testimony

By Robyn Hagan Cain on September 07, 2011 | Last updated on March 21, 2019

Dramamine and rubber-soled shoes are critical when sailing.

The open sea, though relaxing, is full of threats: stingrays, icebergs, 15-foot swells, barnacles, Carib shortages, and very slippery floors.

Perhaps that's where today's Eleventh Circuit Court of Appeals plaintiff, Lydia Rosenfeld, erred: She didn't anticipate the slippery floor on her cruise ship.

But according to Rosenfeld, Oceania Cruises should have known that the floor was dangerous.

Rosenfeld slipped and fell on a ceramic tile floor near the buffet bar of the M/V Nautica’s Terrace Cafe. She suffered a shoulder fracture and incurred medical expenses as a result of her fall, and sued Oceania Cruises to recover for her injuries under the negligence theory that Oceania failed 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.

The district court entered a pre-trial order precluding Vournechis’s testimony, finding that Rosenfeld had not established that Vournechis would provide helpful analysis in understanding a matter of scientific, technical or specialized expertise. The district court thought that whether or not the floor was unreasonably dangerous was an issue for the jury, not an expert.

At trial, the jury found in favor of Oceania. Rosenfeld appealed.

The Eleventh Circuit Court of Appeals disagreed with the district court’s stance on Rosenfeld’s expert witness testimony, noting that 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.

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, and slip resistance is beyond the understanding and experience of the average lay juror, the Eleventh Circuit found that the jury could not have found in Rosenfeld’s favor with regard to her main negligence theory that her injury was caused by Oceania’s failure to choose an adequate flooring surface for the area where the accident occurred.

Rosenfeld may not get a second chance at a perfect cruise vacation, but the Eleventh Circuit Court of Appeals has given her a second chance at trial to prove her negligence theory — and possibly a chance to win the proceeds to purchase a nice pair of rubber-soled shoes.

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