New trial ordered where maritime ergonomic engineering expert witness was improperly not permitted to testify...
New trial ordered where maritime ergonomic engineering expert witness was improperly not permitted to testify as to opinions regarding ship's door latches and procedures for inspecting such latches where such expert had not conducted a ship board inspection of the subject area.
COLIN ORPE, Appellant, v. CARNIVAL CORPORATION AND GARY FERRIS, Appellees.
CASE NO. 3D02-3186
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
909 So. 2d 929; 2005 Fla. App. LEXIS 12010; 30 Fla. L. Weekly D 1858
August 3, 2005, Opinion Filed
PROCEDURAL POSTURE: Colin Orpe appeals a final judgment entered in a negligence action. Because the trial court would not allow Orpe to present the testimony of his expert witness at trial, we reverse. FACTS: Dr. Marc Wilson was Orpe's sole liability expert witness. Orpe was injured while he was a passenger on Carnival Corporation's vessel Holiday when his cabin bathroom door swung shut and severed a portion of his finger. The door opened outward and a magnetic device on the adjacent wall was designed to hold the door against the adjacent wall. Orpe's cabin-mate testified that the door had malfunctioned several times before the accident occurred. At trial, Orpe sought to introduce Dr. Wilson's testimony that a door dampener should have been used to slow down the rate at which the door closed; that an outward opening door without a door dampener is a hazard; that written warnings and a handrail in this area on a ship were necessary from an ergonomics, human factors and safety standpoint; that magnets lose their power over time; and that such devices must be regularly inspected and replaced. In the alternative, he suggested that the use of the hook-and-eye-type door latch, the usual type of latch used on cruise ships, was appropriate. In addition, he was to testify about general considerations for safety in equipping a ship's bathroom and door. The court excluded Dr. Wilson's testimony ruling that he was not qualified to testify concerning the appropriate safety measures in a ship's passenger cabin and that expert testimony on this issue was unnecessary. Carnival's expert, however, was permitted to offer his opinion as to a magnet's properties and characteristics, the force necessary to separate the door from the magnetic latch, and use of dampeners on cruise ship doors.
DISCUSSION: Although Dr. Wilson never visited the accident area on the ship, by the time of Dr. Wilson's pre-trial deposition, he had viewed photographs of the subject door, latch and bathroom. Furthermore, he personally interviewed Orpe and read his deposition transcript and read Hahn's affidavit. He had been advised of Orpe and Hahn's testimony regarding how the accident occurred and that there were no handrails or warnings in the bathroom. In addition, at the time of his deposition, Dr. Wilson had seen photographs of a bathroom door in a cabin of a competing cruise line, Celebrity Cruises. This door contained a "door dampener" such as here. He further viewed Carnival's video tape of the accident area, previously had inspected passenger bathroom doors on this same vessel, the HOLIDAY, and was familiar with the bathroom doors. Dr. Wilson testified that ergonomics is based primarily on prior research and that there are ample studies on different types of door closure devices, latching devices and dampeners. Dr. Wilson testified that he was able to give opinions from an ergonomic and safety point of view here without having personally viewed the subject accident scene based on the photographs, which showed that the door did not have a dampener, showed the door's magnetic latch at the bottom of the door, and showed there was no warning or safety handrail inside the bathroom or on the door. Dr. Wilson's experience and education afforded him knowledge of how magnets work and whether magnets can lose power. The proffered testimony was a proper subject for expert testimony.
