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Orpe v. Carnival Corp.8/3/2005
Before RAMIREZ, WELLS, and SHEPHERD, JJ.
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.
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. The jury awarded Orpe $42,233.62, an award that is unchallenged, but it found Carnival 20% negligent and Orpe 80% comparatively negligent. The trial court denied Orpe's motion for a new trial based on the exclusion of his sole expert witness.
" t is generally within the trial court's discretion to determine a witness's qualifications to express an opinion as an expert, and the court's determination in this regard will not be reversed absent a clear showing of error." Davis v. Caterpillar, Inc., 787 So. 2d 894, 899 (Fla. 3d DCA 2001). In addition, the proper subject matter for expert testimony is within the trial court's discretion. Angrand v. Key, 657 So. 2d 1146, 1149 (Fla. 1995). Here, however, the trial court should not have excluded Dr. Wilson's testimony. The subject matter of the testimony, which is beyond the common understanding of the jury, would have aided the fact-finder in resolving disputed issues, and the expert was qualified to opine on the matter. ยง 90.702, Fla. Stat. (2004). This was emphasized by the trial court's ruling allowing the defense expert to testify on basically the same subjects on which it had disqualified plaintiff's expert.
It is beyond peradventure that Dr. Wilson was qualified to testify on the subject of ship safety by virtue of his education, training and experience. In addition to a Bachelor's Degree in nuclear physics, a Master's Degree in mechanical engineering, and a Doctorate Degree in engineering, with a specialty in advanced marine vehicles, Dr. Wilson, an experienced ship builder, is board certified in ergonomics. He is presently a First Engineer in the American Merchant Marine. He assisted in drafting the American Society of Testing Materials Standards for merchant vessels, and served as a Coast Guard senior marine safety inspector. He has written numerous articles on human factors and safety on vessels. Furthermore
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