United States District Court, W.D. Washington, Seattle
ORDER ON SUMMARY JUDGMENT
RICARDO S. MARTINEZ, District Judge.
THIS MATTER comes before the Court on Motion for Summary Judgment by Defendants Holland America Line, Inc., Holland America Line N.V., and HAL Antillen N.V. Dkt. # 15. Plaintiff was a passenger aboard one of Defendants' cruises when she suffered an injury from a fall during an organized charity walk. Defendants move for dismissal of Plaintiff's sole claim for negligence. For the reasons stated herein, Defendants' motion is DENIED.
On December 11, 2011, Plaintiff, Diane Weiss, and her husband embarked on a seven day cruise aboard a Holland America Line ("HAL") vessel, the M/V WESTERDAM ("Westerdam") from Fort Lauderdale, Florida. Ms. Weiss, a then 69-year old resident of Delray Beach, Florida, is a veteran cruiser, having taken approximately 20 cruises over the past 20 years. During each of the first five mornings of the instant cruise, Ms. Weiss walked with a friend for half an hour on the Westerdam's upper deck walking track, covering a distance of approximately three miles. Dkt. # 16, Ex. B., pp. 18-19. Plaintiff did not experience problems with her walking or balance during these routine exercises. Id. at p. 20. During the first five days of the cruise, the Westerdam experienced generally calm seas and low swell with relatively little vessel motion. See Dkt. # 20, ¶ 5. The wind began to pick up late on December 15, 2011, increasing to "moderate" levels at 10:00am on December 16, as recorded in the vessel's logs. Id. Ms. Weiss described the weather conditions on December 16 as generally "clear, a little choppy, some whitecaps, " with a little wind. Dkt. # 16, Ex. B, pp. 22-23.
On December 16, 2011, Ms. Weiss, a breast cancer survivor, signed up to participate in a walk-for-charity event, On Deck for the Cure, in support of the Susan G. Komen Foundation. Participants in this non-competitive event aimed to walk nine laps of the Westerdam's promenade deck, or three miles, though they were free to cease participation at any point. Dkt. # 16, Ex. B., pp. 28-29; Dkt. # 23, Ex. F. Immediately prior to the event, Ms. Weiss paid her participation fee, received her t-shirt, and listened to an introductory talk by lifestylist Nicholas Reiersgard, the crewmember in charge of the walk. Dkt. # 16, Ex. B, p. 25. The charity walk began at 2:00pm and progressed without incident until Ms. Weiss had completed 6 or 7 laps. At this point, Ms. Weiss reportedly felt the Westerdam starting "to rock a little." As she rounded the stern and turned right toward the bow, the ship allegedly gave "one big surge, " at which point she lost her balance on the dry deck and hit her wrist against a metal support structure as she instinctively sought to brace her fall. Dkt. # 16, Ex. B., p. 34. She suffered a fracture to her wrist, which resulted in three surgeries, including a wrist replacement. Dkt. # 19, ¶ 9. An additional charity walk participant, Herbert Basson, fell in approximately the same location. He recalls that he let go of a rail that he was holding and fell as the Westerdam "went for a sleigh ride." Dkt. # 18, Ex. 4, p. 12. Neither Weiss nor Basson observed other participants fall. Id.; Dkt. # 20, p. 35.
An hourly recording by bridge crew in the Westerdam's NAPA log indicated that at the start of the race, the wind was at 31.5 knots (nautical miles per hour), described as "near gale" conditions. Dkt. # 18, Ex. 1, p. 4; Ex. 5, p. 57. The swell was described as moderate, with a sea force of 5 to 6 on the Beaufort scale, and the vessel state as "pitching and rolling." Id. at Ex. 1, p. 5; Ex. 5, p. 53. The accident report recorded for Ms. Weiss' injury describes this pitching as "slight" and rolling as "gentle." Dkt. # 16, Ex. A. Because the winds were hitting the ship from the starboard quarter toward the stern, the relative wind speed experienced by passengers aboard the ship was only 20 knots. Dkt. # 18, Ex. 5, p. 47. According to Third Officer Marco Boere, the Westerdam had deployed one of two stabilizers on December 16; two would have been deployed in the event of heavy rolling. Dkt. # 23, Ex. A., p. 59. According to Third Officer Marco Boere, Westerdam officers did not institute particularized safety protocols during the walkathon, but officers on watch did carry out "constant monitoring of the normal weather conditions." Id. at 38. These procedures authorize those on watch to impose a deck ban as appropriate. Id. at 39. No deck ban was imposed during the day of the incident.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) permits parties to move for summary judgment on all or part of their claims. Summary Judgment is proper where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are those that may affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248. An issue of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In ruling on a motion for summary judgment, the court does "not weigh the evidence or determine the truth of the matter but only determine[s] whether there is a genuine issue for trial." Crane v. Conoco, 41 F.3d 547, 549 (internal citations omitted).
The moving party bears the initial burden of production and the ultimate burden of persuasion. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The moving party must initially establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party defeats a motion for summary judgment if she "produces enough evidence to create a genuine issue of material fact." Nissan Fire, 969 F.2d at 1103. By contrast, the moving party is entitled to summary judgment where "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof" at trial. Celotex, 477 U.S. at 322. "[T]he inferences to be drawn from the underlying facts...must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat summary judgment. Anheuser-Busch, Inc. v. Natural Beverage Distributors, 60 F.3d 337, 345 (9th Cir. 1995).
A. Motions to Strike
As a threshold matter, Defendants move the Court to strike both of Plaintiff's proffered expert opinions. In ruling on a summary judgment motion, the Court is restricted to considering evidence that is admissible. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). Supporting or opposing affidavits must be based on "personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(e)(1).
Rule 702 of the Federal Rules of Evidence provides that expert testimony is admissible "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." The district court's role as a gatekeeper "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is...valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharm., Inc., 409 U.S. 579, 592-93 (1993). "This duty to act as a gatekeeper and to assure the reliability of proffered expert testimony before admitting it applies to all (not just scientific) expert testimony." Samuels v. Holland America Line-USA Inc., 656 F.3d 948, 952 (9th Cir. 2011)(internal citations and quotations omitted). The word "knowledge" in this context "connotes more than subjective belief or unsupported speculation." Id., citing Daubert, 509 U.S. at 590. The court's inquiry under Rule 702 is a "flexible" one, and the court tailors its choice and application of the Daubert factors to the "nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)(internal quotation omitted); see also, Samuels, 656 F.3d at 952.
Defendants contend that Declaration of Kenneth Nemire should be stricken as he has failed to establish personal knowledge or competency to testify at trial on the issues raised or demonstrated that his opinions are supported by sufficient facts or data. Mr. Nemire, a Human Factors Engineering Analysis consultant with a PhD in Experimental Psychology, provided a declaration based on a report, opining that HAL failed to take adequate measures to mitigate the hazard that allegedly caused Ms. Weiss' injury. Dkt. ## 21, 26. The Court agrees that Mr. Nemire has failed to substantiate that he is qualified to opine on the particular contexts of cruise ship safety or charity walk risk management on the basis of relevant experience or training. More fatally, Mr. Nemire's report lacks an adequate basis in facts or data for the conclusions that he draws regarding safety concerns for charity walks as opposed to normal perambulation, the foreseeable physiological experiences of the On Deck for a Cure participants, or the effects of vessel motion on participants related to weather conditions at the time of the event. Certain of Mr. Nemire's opinions additionally cannot be applied to the facts. For instance, the motivations of participants professed in his declaration are contradicted by the non-competitive nature of the event, the ...