Court Limits Accident Investigation Expert Witness’ Report on Defendant’s Liability

Plaintiff sustained injuries while waiting in the loading area to board an inflatable raft as part of the Aquazoid water slide (“Aquazoid”). It occurred on August 22, 2015, at Busch Gardens Water Country USA (“Water Country”), in Williamsburg, Virginia.

Two attendants stationed at the loading area at the top of the water slide remove the rafts from the conveyor belt and assist patrons in loading into the rafts. Once an attendant removes a raft from the conveyor belt to load it with patrons, the system engages, and another raft moves down the roller belt.

The Plaintiff alleged that during the loading process at the top of the water slide, the conveyor belt moved a raft down the roller belt, striking Plaintiff in the leg, causing her to fall forward into the raft she was attempting to board, and resulting in injuries to her left knee. Specifically, Plaintiff argued that SeaWorld owed Plaintiff a duty of care “to have the premises in a reasonably safe condition” and to warn Plaintiff of any unsafe conditions.

Defendant SeaWorld Parks & Entertainment, LLC, d/b/a Water Country USA retained Richard Carroll (“Carroll”) as a liability expert witness to testify at trial about the incident and the Aquazoid attraction. Plaintiff filed a motion to exclude Carroll’s opinions on the grounds that his opinions were irrelevant, likely to confuse a jury, or not the proper subject of expert testimony.

Accident Investigation Expert Witness

Richard Carroll has 38 years of combined aquatic facility management, operational and consulting experience. He is is the Senior Vice President and Chief Operating Officer of Jeff Hills & Associates, Inc. He has conducted multiple Aquatic Incident Investigations and over 1000 audits while employed at Jeff Ellis & Associates, Inc. Carroll has been qualified as an expert multiple times.

Prior to assuming a position with Jeff Ellis & Associates, Richard was directly responsible for incident investigation, claims administration, collection of documentation/discoverable evidence and deposition testimony on behalf of Splish Splash Waterpark for 10 years.

Discussion by the Court

Plaintiffs’ first category of objections—that Accident Investigation Expert Witness, Carroll’s opinions were irrelevant and likely to confuse or mislead a jury—were not based on Carroll’s status as a qualified expert witness. Rather, Plaintiffs appeared to argue that the exclusion of these opinions was based on Rule 403.

Plaintiff sought to exclude a second category of Carroll’s opinions on grounds that they were not proper expert testimony pursuant to Federal Rule of Evidence 702 and the requirements of expert testimony as outlined in Daubert.

Carroll’s Opinion that Aquazoid’s Standard Operating Procedure and Attendant Training Meets Internal Industry Best Practices is Irrelevant

Plaintiff first took issue with Carroll’s opinion that Aquazoid’s standard operating procedure and attendant training met internal industry best practices. Plaintiff contended that this statement was irrelevant because Plaintiff had not made any allegations regarding Aquazoid’s training, but rather argued that the ride attendants did not follow the training or exercise ordinary care.

The Court held that there was little probative value in the opinion that Aquazoid’s standard operating procedure and attendant training met industry best practices because whether the attendants acted or failed to act in a way that breached their duty as established by industry standards was actually in dispute.

Carroll’s Opinions that the Raft Conveying Process is Safe and Meets Industry Standards, the Process for Moving Rafts from the Conveying System to the Start Tub Meets Industry Standards, and the Conveying System Meets Industry Standards are Irrelevant

The parties have stipulated that the conveying system did not have design flaws and was operating as designed at the time of the incident.

The Court held that Carroll’s opinions that the raft conveying process was safe and met industry standards, the process of moving rafts from the conveying system to the start tub met industry standards, and the conveying systems met industry standards, had little probative value, and instead had the potential to mislead the jury into deliberating the wrong issue.

Carroll’s Opinions that the Ride is Reasonably Safe as Designed and Compliant with Applicable Standards is Relevant

The Plaintiff argued that Carroll’s opinions that the ride was reasonably safe as designed and compliant with applicable standards were irrelevant because Plaintiff was not alleging that the ride was unsafe or non-compliant with industry standards.

However, the Court held that since the cited industry standards addressed where patrons were to stand while boarding the ride, such testimony would have been relevant to Plaintiff’s claim that Defendant breached its duty of ordinary care by allowing her to board from an area where she would have been struck by a raft descending onto the roller assembly.

Carroll’s Opinion that Having Two Ride Attendants Met the Manufacturer’s Operation and Maintenance Manual Requirements is Relevant

The Plaintiff objected to Carroll’s opinion that having two ride attendants present in the loading area met the manufacturer’s operation and maintenance manual. She argued that Defendant’s compliance with its own operating manual was irrelevant and could confuse the jury into believing that compliance with its own policies, as opposed to industry standards, was sufficient to absolve Water Country from the negligence of its employees.

Plaintiffs’ argument misrepresented Carroll’s opinion. Carroll stated in his report, twice, that the staffing of two attendants was consistent with industry standards as well as the manufacturer’s guidance.

The Court held that because Carroll was not basing his opinion simply on compliance with Water Country’s own policies, but instead, was basing it on Water Country’s compliance with industry standards, which were reflected in Water Country’s policies, the risk of jury confusion was minimal.

Carroll’s Opinion that Plaintiff was Under the Influence of Alcohol is Irrelevant

The Court held that Carroll’s opinion that Plaintiff had a duty not to participate on the ride if she was under the influence of drugs or alcohol had no probative value due to lack of allegation or evidence of Plaintiff’s impairment at the time of her alleged injury.

Carroll’s Opinion that ProSlide Recommended Sign and Patron Communications Were in Place and in Use at the Time of the Incident may be Relevant and is not Unfairly Prejudicial

Plaintiff moved to exclude Carroll’s opinion regarding the recommended signage in place at the time of the incident because it did not absolve SeaWorld of negligence and the signage did not warn about the dangers posed by rafts descending the roller assembly.

Since the ProSlide recommended signs warned Plaintiff of the danger near the conveyor, and are the signs referenced by ProSlide, the Court held that it had probative value.

Carroll’s Opinion that Plaintiff Either Walked into an Area Inside the Safety Fence When a Descending Raft Struck her or that She Tripped is Conclusory

Carroll’s report stated that the first scenario is that Plaintiff walked into the area inside the safety fence, standing near the conveying system and a raft descended and touched Plaintiffs leg causing her to fall into the raft. Alternatively, Carroll opined that the second scenario is that Plaintiff simply tripped and fell when stepping into the raft.

Defendant stated that Carroll “could take Plaintiff’s testimony and apply the ride mechanics and layout to illustrate to the jury what would and what would not be possible.”

The Court held that Carroll’s opinion as to possible alternative causes of the incident—either Plaintiff stood too near the safety fence or tripped and fell—was speculative, and therefore unhelpful to the jury. Since Carroll cannot say which of the two possible scenarios occurred, his opinion that one of the two occurred would not help the trier of fact understand the evidence or to determine the facts in issue. However, Carroll’s testimony regarding how the conveyor system works under different scenarios would be helpful to the jury to understand the evidence in the case and determine the facts in issue.

Carroll’s Opinion that the Ride Attendants Did Not Have Sufficient Time to Activate the Emergency Stop Button on the Conveyor Belt is not based on Sufficient Facts, or Data

The Court held that because the parties stipulated that the conveying system did not have design flaws and Defendant did not know where the ride attendants were located at the time of the incident, Carroll’s opinion that the attendants’ position would not have allowed sufficient time to reach the emergency stop button was not based on sufficient facts or data.

Carroll’s Opinion about the “Please Stand Clear of Conveyor” Sign Does Not Lack Scientific Methodology

Plaintiff sought to exclude Carroll’s opinion that the “Please Stand Clear of Conveyor” sign was a warning to patrons of the danger of the descending roller assembly on the grounds that it “lacked scientific methodology and was internally inconsistent with his own definitions and other opinions expressed in his report.”

The Court held that Carroll based on his opinions about the sign on relevant industry standards because he referenced the normative guidance American National Standards Institute provides when more than one hazard exists in close proximity to each other or might be preventable from a common location.

Held

The Court granted in part and denied in part the Plaintiff’s motion to exclude Accident Investigation Expert Witness, Richard Carroll.

The Court subsequently dismissed the action on March 15, 2024. It ordered the Plaintiff to cover the Defendant’s costs of action.

Key Takeaways:

1. Relevance and Potential Confusion: Expert testimony must be relevant and not likely to confuse or mislead the jury. Arguments about relevance should be based on established rules and standards, not merely the expert’s qualifications.
2. Admissibility under Rule 702 and Daubert: Expert opinions should meet the admissibility requirements outlined in Federal Rule of Evidence 702 and the Daubert standard.
3. Relevance of Industry Standards: Opinions based on industry standards are relevant when assessing claims of negligence or breach of duty, particularly regarding safety protocols and procedures.

Case Details:

Case Caption:	Almeida-Graves V. Seaworld Parks & Entertainment Llc
Docket Number:	4:22cv127
Court:	United States District Court, Virginia Eastern
Citation:	2024 U.S. Dist. LEXIS 45703
Order Date:	February 20, 2024