United States v. Teresita Sorrels v. NCL (Bahamas), LTD, 796 F.3d 1275

Background

While on a 2012 cruise aboard NCL’s Norwegian Sky, Mrs. Sorrels slipped on a rain‑wet teak pool deck and fractured her wrist; she and her husband sued NCL for negligence under maritime law.
Plaintiffs’ expert, civil engineer Dr. Ronald Zollo, tested the deck ~520 days after the accident (wet tests) and reported wet COF values ranging 0.14–0.70, averaging 0.45.
Dr. Zollo opined the deck failed to meet industry COF standards (citing ASTM F1166‑07 §11.12.1.2 requiring COF ≥ 0.6 when wet) and offered opinions on notice, maintenance, and a “false sense of security” theory from variable COF.
The district court excluded all COF‑related expert testimony and the cited publications (finding methods unreliable and ASTM inapplicable to passenger areas), then granted summary judgment for NCL and taxed costs.
The Eleventh Circuit affirmed some exclusions (notably the “false sense of security” opinion) but held the district court abused its discretion by wholly excluding COF evidence and the ASTM standard; it vacated summary judgment and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of COF testing performed 520 days after accident	Zollo: tests reflect substantially similar wet conditions; results probative of deck safety	NCL: delay and possible surface changes made tests unreliable and inadmissible	Court: Excluding on timeliness was abuse — delay and minor differences go to weight, not admissibility (tests admissible)
Applicability of ASTM F1166‑07 §11.12.1.2 (COF ≥ 0.6 when wet) to passenger pool decks	Plaintiffs: ASTM provision applies to pool decks traversed by crew and passengers and is probative of industry custom/standard	NCL/District Ct: ASTM addresses crew areas and thus does not govern passenger decks	Court: ASTM may apply to commonly traversed areas like pool decks; district court erred excluding ASTM on that basis
Reliability of "false sense of security" theory (wide COF variability across path)	Plaintiffs: variability in measured COF supports that surface can unexpectedly trap pedestrians	Plaintiffs: same	Court: Opinion unreliable because Zollo did not test along plaintiff’s actual path; subjective impressions insufficient — exclusion affirmed
Sufficiency of remaining evidence to survive summary judgment (notice / created dangerous condition)	Plaintiffs: COF evidence + evidence of prior slips and occasional post‑rain warning signs create issues of fact on creation/notice	NCL: prior incidents not substantially similar; no proof signs were absent on night; insufficient evidence without Zollo	Court: Vacated summary judgment — admissible portions of expert evidence and testimony (employees saying signs sometimes posted) suffice to preclude summary judgment and require remand

Key Cases Cited

Mihailovich v. Laatsch, 359 F.3d 892 (7th Cir.) (COF explained as degree of slip resistance)
Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190 (11th Cir.) (qualified experts using reliable COF testing may testify to flooring safety)
United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338 (11th Cir.) (wholesale exclusion of some reliable expert opinions can be abuse of discretion)
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (expert‑testimony reliability factors and gatekeeping)
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (expert reliability gatekeeping applies to all expert testimony)
Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.) (industry custom admissible on standard of care)
Barnes v. General Motors Corp., 547 F.2d 275 (5th Cir.) (out‑of‑court experiments admissible only if substantially similar)
Borden, Inc. v. Fla. E. Coast Ry. Co., 772 F.2d 750 (11th Cir.) (prior incidents admissible when sufficiently similar to show foreseeability)
F.W. Woolworth Co. v. Seckinger, 125 F.2d 97 (5th Cir.) (delay in inspecting accident site generally goes to weight, not admissibility)
Gen. Elec. Co. v. Joiner, 522 U.S. 136 (court may reject expert ipse dixit; gatekeeper not bound by conclusory assertions)