Carnival Wins Summary Judgment in Cruise Slip-Fall Case

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April 6, 2026 Get Citation Alerts Download PDF Add Note

John Olenik, as next friend of Helen Olenik, an incapacitated person v. Carnival Corporation, d/b/a Carnival Cruise Line

District Court, S.D. Florida

• Citations: None known
• Docket Number: 1:25-cv-20901

• Precedential Status: Unknown Status

• Opinion

• Authorities (51)

• Cited By (0)

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Trial Court Document

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 25-cv-20901-BLOOM/Elfenbein

JOHN OLENIK, as next friend of
HELEN OLENIK, an incapacitated person,

Plaintiffs,

v.

CARNIVAL CORPORATION, d/b/a
Carnival Cruise Line,

Defendant.
__________________________________/

OMNIBUS ORDER

THIS CAUSE is before the Court upon Defendant Carnival Corporation’s (“Carnival”)
Motion for Summary Judgment, ECF No. [47], Defendant’s Motion to Strike and Exclude the
Opinions from Plaintiff’s Experts Francisco De Caso Basalo and Nicholas D. A. Suite, M.D., ECF
No. [48], and Defendant’s Motion to Strike Plaintiff’s Supplemental Rule 26 Expert Witness
Disclosure for Nicholas Suite and Untimely Supplemental Disclosure of Victoria Maria-Sekunda,
ECF No. [52]. The Plaintiff John Olenik, as next friend of Helen Olenik filed Responses in
Opposition, ECF Nos. [66]; [68]; [74]. Carnival filed Replies in Support, ECF Nos. [70]; [71];
[72]. The Court has reviewed the Motions, the supporting and opposing submissions, the record,
and is otherwise fully advised. For the reasons that follow, the Motions are granted.
I. BACKGROUND
Plaintiff John Olenik is the husband and Next Friend of Real Party in interest, Helen Olenik,
an incapacitated adult. In the Complaint, Plaintiff asserts three counts of negligence against
Carnival: Negligent Failure to Maintain (Count I), General Negligence (Count II), and Negligent
Failure to Warn (Count III). ECF No. [15].
A. Material Facts
The following facts are not genuinely in dispute unless otherwise noted: On April 29, 2024,
Helen Olenik and John Olenik were passengers aboard Carnival Corporation’s ship, M/V Carnival
Pride. ECF Nos. [46] ¶ 1; [67] ¶ 1. Helen Olenik fell on an exterior tile floor after walking through
sliding glass doors leading from the interior of the ship to the Serenity pool deck. ECF Nos. [46]

¶ 4; [67] ¶ 4. The area where Helen Olenik fell was adjacent to the Serenity pool deck with a
jacuzzi and pool nearby. ECF Nos. [67] ¶ 25; [70] ¶ 25. At the time of the incident, Helen Olenik
wore contacts occasionally for reading but did not otherwise have any vision problems. ECF Nos.
[46] ¶ 3; [67] ¶ 3. John Olenik was in front of Helen Olenik when she fell and did not see the
incident. ECF Nos. [46] ¶ 5; [67] ¶ 5. A caution sign was present on the floor just a couple of feet
in front of where Helen Olenik fell. ECF Nos. [46] ¶ 6; [67] ¶ 6. Neither John Olenik nor Helen
Olenik recall noticing a liquid or substance on the floor where Helen Olenik fell either before or
after the incident or any substance on Helen Olenik’s clothing after she fell. ECF Nos. [46] ¶¶ 10-
11; [67] ¶¶ 10-11.
On September 28, 2025, Plaintiff’s expert, Dr. Francisco De Caso, performed an inspection of

the floor where the incident took place. ECF Nos. [46] ¶ 13; [67] ¶ 13. Dr. De Caso tested the slip
index of the floor under both dry and wet conditions. His dry measurements averaged 0.58 and his
wet measurements averaged 0.23. ECF Nos. [46] ¶ 15; [67] ¶ 15. Dr. De Caso’s Report discusses
a “grease film problem” and “mineral deposition” he observed on the tiles, but his report does not
identify any evidence that these conditions were present in the location and at the time of the
incident. ECF Nos. [46] ¶ 16; [67] ¶ 16.
After the incident, Helen Olenik took a medvac flight from Grand Turk to a hospital in Fort
Lauderdale where she was admitted and stayed for 10 days recovering from pelvic fractures. ECF
Nos. [46] ¶¶ 17- 18; [67] ¶¶ 17-18. After returning home, Helen Olenik was able to walk
independently after completing physical therapy. ECF Nos. [46] ¶ 20; [67] ¶ 20.
In its Motion for Summary Judgment, Carnival seeks summary judgment on all counts because
there is no evidence that the floor was contaminated or otherwise in a dangerous condition at the

time of the alleged incident. In its Motion to Strike and Exclude the Opinions from Plaintiff’s
Expert, Carnival seeks to exclude or limit the testimony of Plaintiff’s expert, Dr. Francisco De
Caso, as his opinions fail to satisfy the qualification, reliability, and/or helpfulness prongs of
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Finally, in its Motion to Strike
Plaintiff’s Supplemental Rule 26 Expert Witness Disclosure for Nicholas Suite and Untimely
Supplemental Disclosure of Victoria Maria-Sekunda, Carnival seeks to exclude the testimony and
reports of both Dr. Nicholas Suite and Dr. Victoria Maria-Sekunda as Plaintiff failed to timely
provide reports and disclosures as required, and the delay was neither substantially justified nor
harmless, warranting exclusion under Federal Rule of Civil Procedure 37(e).
In response to Carnival’s Motion for Summary Judgment, Plaintiff argues Dr. De Caso’s

testing of the subject floor reveals that a grease-contaminated wet tile floor is unreasonably
dangerous. ECF No. [66] at 7. In response to Carnival’s Motion to Strike and Exclude the Opinions
of Plaintiff’s Expert, Plaintiff agrees to limit the scope of Dr. De Caso’s testimony to his core slip
resistance engineering testimony. ECF No. [68]. Finally, in response to Carnival’s Motion to
Motion to Strike Plaintiff’s Supplemental Rule 26 Expert Witness Disclosure for Nicholas Suite
and Untimely Supplemental Disclosure of Victoria Maria-Sekunda, Plaintiff argues the untimely
disclosures were substantially justified and harmless, ECF No. [74] at 8.
II. LEGAL STANDARD
A. Daubert Standard
Federal Rule of Evidence 702 governs the admissibility of expert testimony. When a party
proffers the testimony of an expert under Rule 702, the party offering the expert testimony bears
the burden of laying the proper foundation, and that party must demonstrate admissibility by a
preponderance of the evidence. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir.

2005); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). To determine
whether expert testimony or any report prepared by an expert may be admitted, the Court engages
in a three-part inquiry, which includes whether: (1) the expert is qualified to testify competently
regarding the matters the expert intends to address; (2) the methodology by which the expert
reaches his or her conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or specialized expertise, to understand the evidence
or to determine a fact in issue. See City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589). The Court of Appeals for the Eleventh Circuit
refers to each of these requirements as the “qualifications,” “reliability,” and “helpfulness” prongs.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). While some overlap exists among
these requirements, the court must individually analyze each concept. See id. Under Daubert, a district court must take on the role of gatekeeper, but this role “is not intended
to supplant the adversary system or the role of the jury.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois
UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (citations and quotation marks omitted). Consistent
with this function, the district court must “ensure that speculative, unreliable expert testimony does
not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002).
“[I]t is not the role of the district court to make ultimate conclusions as to the persuasiveness of
the proffered evidence.” Quiet Tech., 326 F.3d at 1341 (citations and quotation marks omitted).
Thus, the district court cannot exclude an expert based on a belief that the expert lacks personal
credibility. Rink, 400 F.3d at 1293 n.7. On the contrary, “vigorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Quiet Tech., 326 F.3d at 1341 (quoting Daubert, 509 U.S. at 596). “Thus, ‘[o]n cross-examination, the opposing counsel is given
the opportunity to ferret out the opinion's weaknesses to ensure the jury properly evaluates the
testimony's weight and credibility.’” Vision I Homeowners Ass'n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009) (quoting Jones v. Otis Elevator Co., 861 F.2d 655,
662 (11th Cir. 1988)). Ultimately, “a district court enjoys ‘considerable leeway’ in making”
evidentiary determinations such as these. Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty.,
Fla., 402 F.3d 1092, 1103 (11th Cir. 2005) (quoting Frazier, 387 F.3d at 1258).
B. Late Disclosure of Experts and Expert Reports
i. Rule 26
Federal Rule of Civil Procedure 26 requires a party to disclose to the other parties the identity
of any witness it may use at trial to present expert testimony. See Fed. R. Civ. P. 26(a)(2). To make

a proper disclosure, parties must disclose the expert’s identity “accompanied by a written
report.” Fed. R. Civ. P. 26(a)(2)(B). The written report must contain an array of information,
including a “complete statement of all opinions the witness will express and the basis and reasons
for them,” “the facts or data considered by the witness in forming them,” and the witness’
qualifications, lists of cases where the witness testified as an expert, the expert’s fee arrangement,
and exhibits used to summarize or support the expert’s opinions. See Fed. R. Civ. P.
26(a)(2)(B)(i)-(vi). Expert disclosures must be made at the times and in the sequence that the court
orders. See Fed. R. Civ. P. 26(a)(2)(D).
Parties must supplement their expert disclosures when required under Rule 26(e). See Fed. R.
Civ. P. 26(a)(2)(E). Rule 26(e) imposes a duty on a party to supplement or correct its
expert disclosure or response “in a timely manner if the party learns that in some material respect
the disclosure or response is incomplete or incorrect, and if the additional or corrective information

has not otherwise been made known to the other parties during the discovery process or in writing;
or as ordered by the court.” Fed. R. Civ. P. 26(e)(1). Further, for an expert whose report must be
disclosed under Rule 26(a)(2)(B), “the party's duty to supplement extends both to information
included in the report and to information given during the expert’s depositions,” and any “additions
or changes to this information must be disclosed by the time the party's pretrial disclosures
under Rule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2).
However, the Eleventh Circuit has affirmed that the supplementation of an expert report “is
not a device to allow a party's expert to engage in additional work, or to annul opinions or offer
new ones to perfect a litigating strategy.” Cochran v. Brinkmann Corp., No. 1:08-cv-1790-WSD, 2009 WL 4823858 at * 5 (N.D. Ga. Dec. 9, 2009), aff'd, 381 F. App'x. 968 (11th Cir. 2010). “[T]he

expert disclosure rule is intended to provide opposing parties ‘reasonable opportunity to prepare
for effective cross examination and perhaps arrange for [rebuttal] expert testimony from other
witnesses.’ ” Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (quoting Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000)).
ii. Rule 37
If a party violates Rules 26(a) or (e), Rule 37(c) provides for the exclusion of the expert
evidence “unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
The non-disclosing party bears the burden of showing that the failure to comply with Rule 26 was
substantially justified or harmless. Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir.
824). In making this determination, the Court considers four factors: “(1) the importance of the
excluded testimony; (2) the explanation of the party for its failure to comply with the required
disclosure; (3) the potential prejudice that would arise from allowing the testimony; and (4) the
availability of a continuance to cure such prejudice.” Torres v. First Transit, Inc., No. 17-CV-
81162, 2018 WL 3729553, at *2 (S.D. Fla. Aug. 6, 2018) (citations omitted). “Prejudice generally

occurs when late disclosure deprives the opposing party of a meaningful opportunity to perform
discovery and depositions related to the documents or witnesses in question.” Bowe v. Pub.
Storage, 106 F. Supp. 3d 1252, 1260 (S.D. Fla. 2015) (citation omitted).
Ultimately, the “determination of whether a Rule 26(a) violation is justified or harmless is
entrusted to the broad discretion of the district court.” Smith v. Jacobs Eng'g Grp., Inc., No.
4:06CV496-WS/WCS, 2008 WL 4264718, at *6 (N.D. Fla. Mar. 20, 2008), report and
recommendation adopted, No. 4:06 CV 496 WS, 2008 WL 4280167 (N.D. Fla. Sept. 12, 2008)
(citation omitted); Warren v. Delvista Towers Condo. Ass'n, Inc., No. 13-23074-CIV, 2014 WL
3764126, at *2 (S.D. Fla. July 30, 2014) (noting that a court has “great discretion in deciding
whether to impose such a sanction” for failure to comply with expert witness disclosure

requirements). Indeed, “[c]ourts have broad discretion to exclude untimely expert testimony—
even when they are designated as ‘supplemental’ reports.” Guevara v. NCL (Bahamas) Ltd., 920
F.3d 710, 718 (11th Cir. 2019).
C. Summary Judgment
A court may grant a motion for summary judgment “if 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). The parties may support their positions by citations to materials in the record,
including, among other things, depositions, documents, affidavits, or declarations. See Fed. R. Civ.
P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving
party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it
“might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S.
at 247-48).
A court views the facts in the light most favorable to the non-moving party, draws “all

reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility
determinations, which ‘are jury functions, not those of a judge.’” Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11th Cir. 2019) (quoting Feliciano v. City of Mia. Beach, 707 F.3d 1244,
1252 (11th Cir. 2013)); see also Crocker v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018) (“[W]e
accept [the non-movant's] version of the facts as true and draw all reasonable inferences in the
light most favorable to him as the non-movant.”). “The mere existence of a scintilla of evidence
in support of the [non-moving party's] position will be insufficient; there must be evidence on
which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252, 106
S.Ct. 2505. “If more than one inference could be construed from the facts by a reasonable fact
finder, and that inference introduces a genuine issue of material fact, then the district court should

not grant summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th
Cir. 1990). The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485
F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Comm'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d
1352, 1356 (11th Cir. 1986)).
Initially, the moving party bears the “responsibility of informing the ... court of the basis for
its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
see also Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant satisfies this burden,
“the nonmoving party ‘must do more than simply show that there is some metaphysical doubt as
to the material facts.’” Ray v. Equifax Info. Servs., LLC, 327 F. App'x 819, 825 (11th Cir. 2009)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead,
“the non-moving party ‘must make a sufficient showing on each essential element of the case for

which he has the burden of proof.’” Id. (quoting Celotex Corp., 477 U.S. at 322). The non-moving
party must produce evidence, going beyond the pleadings, and by its own affidavits, or by
depositions, answers to interrogatories, and admissions on file, designating specific facts to suggest
that a reasonable jury could find in the non-moving party's favor. Shiver, 549 F.3d at 1343. Yet,
even where a non-movant neglects to submit any alleged material facts in dispute, a court must
still be satisfied that the evidence in the record supports the uncontroverted material facts proposed
by the movant before granting summary judgment. Reese v. Herbert, 527 F.3d 1253, 1268-69,
1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave.,
Mia., Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004) *1319 (“One Piece of Real Prop.”). Indeed,
even “where the parties agree on the basic facts, but disagree about the factual inferences that

should be drawn from those facts,” summary judgment may be inappropriate. Warrior Tombigbee
Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).
In resolving the issues presented under Rule 56, “the court may not weigh conflicting evidence
to resolve disputed factual issues; if a genuine dispute is found, summary judgment must be
denied.” Carlin Commc'n, Inc., 802 F.2d at 1356. Moreover, summary judgment is inappropriate
where the Court would be required to weigh conflicting renditions of material fact or determine
witness credibility. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993);
see also Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is not the court's
role to weigh conflicting evidence or to make credibility determinations; the non-movant's
evidence is to be accepted for purposes of summary judgment.”); Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (“Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,
whether he [or she] is ruling on a motion for summary judgment or for a directed verdict.” (quoting

Anderson, 477 U.S. at 255)); see also Ramirez v. Nicholas, No. 13-60820-CIV, 2013 WL 5596114,
at *4 (S.D. Fla. Oct. 11, 2013) (“The Court may not make the credibility determinations needed to
resolve this conflict; only the jury may do so.”).
D. Maritime Law
The parties agree that this case is governed by maritime law. ECF No. [47] at 2; [66] at 4. In
analyzing a maritime tort case, courts rely on general principles of negligence law. Chaparro v.
Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (quoting Daigle v. Point Landing, Inc., 616
F.2d 825, 827 (5th Cir. 1980)). The elements of a negligence claim based on a shipowner's direct
liability for its own negligence are well settled: “a plaintiff must allege that (1) the defendant had
a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the
breach actually and proximately caused the plaintiff's injury; and (4) the plaintiff suffered actual

harm.” Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1253 (11th Cir. 2014) (quoting
Chaparro, 693 F.3d at 1336). “Each element is essential to [a p]laintiff's negligence claim and [a
p]laintiff cannot rest on the allegations of her complaint in making a sufficient showing on each
element for the purposes of defeating summary judgment.” Isbell v. Carnival Corp., 462 F. Supp.
2d 1232, 1236-37 (S.D. Fla. 2006).
Moreover, a “cruise-ship operator ‘is not liable to passengers as an insurer, but only for its
negligence.’ The mere fact of an accident-causing injury is insufficient to establish that a
dangerous condition existed.” D'Antonio v. Royal Caribbean Cruise Line, Ltd., 785 F. App'x 794,
796-97 (11th Cir. 2019) (quoting Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th
Cir. 1989)); see also Brown v. Carnival Corp., 202 F. Supp. 3d 1332, 1338 (S.D. Fla. 2016)
(“Generally, ship owners and operators do not owe a heightened or special duty of care to their
passengers.” (citing Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959)), aff'd, 679 F. App'x 981 (11th Cir. 2017). Rather, “under maritime law, the owner of a ship

in navigable waters owes passengers a duty of reasonable care under the circumstances.” Sorrels
v. NCL (Bah.) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015).
To establish the owner of a ship in navigable waters breached its duty of care under a theory
of direct liability, a plaintiff must show: “(1) a dangerous condition existed; (2) the vessel's
operator had actual notice of the dangerous condition; or (3) if there was no actual notice, that
defendant had constructive notice of the dangerous condition for an interval of time sufficient to
allow the vessel's operator to implement corrective measures.” Stewart v. Carnival Corp., 365 F.
Supp. 3d 1272, 1275 (S.D. Fla. 2019) (quoting Reinhardt v. Royal Caribbean Cruises, Ltd., No.
1:12-cv-22105, 2013 WL 11261341, at *4 (S.D. Fla. Apr. 2, 2013)).
III. DISCUSSION
Since the determination of the Defendant’s Motion for Summary Judgment requires an analysis

of the expert’s opinions, the Court proceeds to the Daubert Motion and Motion to Strike first.
A. Daubert Motion and Motion to Strike
i. Dr. Francisco De Caso
Carnival argues Dr. De Caso’s opinions fail to satisfy Federal Rule of Evidence 702 and
Daubert standards. ECF No. [48] at 2. Specifically, Carnival contends Dr. De Caso is not qualified
to opine on human factors or housekeeping standards. Id. at 4. Carnival points out that Dr. De
Caso’s curriculum vitae does not identify any education, training, or experience in human factors
and his list of publications, professional experience, and teaching experience similarly lack any
mention of human factors. Id. at 5. Carnival further argues that Dr. De Caso has been repeatedly
precluded from testifying about human factors by courts in this district. Id. at 6. Carnival offers
the following citations in support:
See Padula at *14 (finding De Caso was “not qualified to offer expert opinions
regarding what Plaintiff, or some other reasonable person, would have seen and
how they would have reacted to it.”); Kessler v. NCL (Bahamas) Ltd., No. 19-cv-
20583, 2019 WL 8128483, 2019 U.S. Dist. LEXIS 228545, at *12 (S.D. Fla. Dec.
20, 2019) (finding Dr. De Caso “not qualified to render an expert opinion as to
human factors, including as to gait, signage and visibility, based on his admission
that he is not a human factors expert”); Darby v. Carnival Corp., No. 19-cv-21219, 2021 WL 6428039, 2021 U.S. Dist. LEXIS 227077, at *20 (S.D. Fla. Nov. 23,
2021), report and recommendation adopted by Darby v. Carnival Corp., 2022 WL
112193, 2022 U.S. Dist. LEXIS 6487 (S.D. Fla. Jan. 12, 2022) Id. Moreover, Carnival points out that Dr. De Caso has also been precluded from testifying about
cleaning and maintenance. Id. at 7 (citing Kessler v. NCL (Bahamas) Ltd., No. 1:19-CV-20583, 2019 WL 8128483, at *4) (“Dr. De Caso is not qualified to render an expert opinion as to Spa
cleaning and maintenance, based on his admission that he has never been employed in a position
related to cleaning or janitorial maintenance.”).
Second, Carnival avers that the majority of Dr. De Caso’s opinions are speculative and
unsupported by a reliable methodology. Id. at 7. Carnival describes Dr. De Caso’s opinions as a
“scattershot attempt to testify to a jury that many potential hazards could have caused [Helen]
Olenik’s fall without any scientific method applied to explain whether these hazards existed as the
time of the incident or how they contributed to the fall.” Id. at 12. Nonetheless, Carnival concedes
that Dr. De Caso’s measurements of the slip index are grounded in a reliable methodology. Id.
Moreover, Carnival argues Dr. De Caso should not be permitted to offer unhelpful legal
conclusions. Id. at 13.
Plaintiff responds that Dr. De Caso’s slip engineering opinions are admissible as Dr. De Caso
has over fifteen years of experience conducting slip resistance evaluations in maritime and other
environments, has testified as an expert in numerous slip-and-fall cases, and participates in the
Advancing Standards Transforming Markets (“ASTM”) F13 Committee on Pedestrian/Walkway
Safety and Footwear Standards Development. ECF No. [68] at 4. Moreover, Plaintiff argues that
Dr. De Caso’s methodology is reliable and accepted in the scientific community. Id. Specifically,
Plaintiff points out that Dr. De Caso used industry-standard equipment and methodologies to test

the actual floor where Helen Olenik fell aboard the Carnival Pride and appropriately utilized water
as the contaminant. Id. at 5. Olenik argues water is the actual foreseeable contaminant on a pool
deck and “[t]esting slip resistance with the actual expected contaminant is a fundamental principle
of tribology.” Id.
However, Plaintiff agrees to limit the scope of Dr. De Caso’s testimony and concedes that he
will not offer opinions at trial regarding:
• Human factors, including passenger perception, visibility of contaminants,
gait analysis, or pedestrian behavior
• Signage effectiveness, warning adequacy, or visual conspicuity from a
human factors perspective
• Housekeeping or janitorial maintenance standards or practices

Id. at 6-7. Plaintiff further agrees to redact legal conclusions from the expert report. Id. at 7. As
such, Plaintiff identifies the following as what remains after the concessions:
• The methodology used to conduct slip resistance testing
• The industry-standard testing equipment employed
• The slip resistance measurements obtained under wet and dry conditions
• The recognized minimum safety thresholds for pedestrian walking surfaces
• The engineering opinion that wet slip resistance fell below industry-
recognized minimum safety standards
• The applicable codes, standards, and industry guidance

Id.
Carnival replies that “Olenik concedes most of the arguments raised in Carnival’s [M]otion.”
ECF No. [71] at 1. Moreover, Carnival points out to the extent Olenik does not concede Carnival’s
arguments, he either does not address them, or the now limited testimony makes the arguments
irrelevant. Id. at 2.
Thus, the Court turns to address whether the testimony of Dr. De Caso, after Plaintiff’s
concessions, satisfies the “qualifications,” “reliability,” and “helpfulness” prongs of the Daubert

standard. Frazier, 387 F.3d at 1260.
First, as to qualifications, “[t]he qualification standard for expert testimony is ‘not stringent,’
and ‘so long as the expert is minimally qualified, objections to the level of the expert’s expertise
[go] to credibility and weight, not admissibility.” Banuchi v. City of Homestead, 606 F. Supp. 3d
1262, 1272 (S.D. Fla. 2022) (citing Vision I Homeowners Ass'n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009)) (quoting Kilpatrick v. Breg, Inc., Case No. 08-10052-
CIV, 2009 WL 2058384 (S.D. Fla. June 25, 2009)). Nonetheless, the party proffering the expert
must still “show that his expert is qualified to testify competently regarding the matters he intend[s]
to address[.]” Frazier, 387 F.3d at 1260.
Here, Plaintiff has established that Dr. De Caso is qualified as a slip resistance expert. Dr. De

Caso’s curriculum vitae established that Dr. De Caso is a licensed professional engineer in Florida,
with a Ph.D. in civil engineering. ECF No. [48-2]. Dr. De Caso is also the founder and principal
of The Integrated Built Infrastructure Group LLC. that specializes in pedestrian walkway safety
and slip resistance evaluation. Id. Moreover, Dr. De Castro reports that he is Certified XL
Tribometrist, completed the Walkway Safety Certification program at the University of North
Texas College of Engineering, and earned the Walkway Auditor Certificate from the National
Floor Safety Institute. ECF No. [64-2] ¶ 29. The Court notes that Carnival does not contest those
qualifications as it relates to Dr. De Caso as a slip resistance expert but challenges the
qualifications to opine about human factors and housekeeping standards. ECF No. [48] at 4.
Second, an expert satisfies the reliability prong of the Daubert standard when the methodology
by which the expert reaches conclusions is sufficiently reliable as determined through
consideration of several non-exclusive factors, primarily:
(1) whether the expert's methodology has been tested or is capable of being tested;
(2) whether the theory or technique used by the expert has been subjected to peer
review and publication; (3) whether there is a known or potential error rate of the
methodology; and (4) whether the technique has been generally accepted in the
relevant scientific community.

Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1305 (11th Cir. 2014) (quoting
United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir. 2013).
Here, Plaintiff has established that Dr. De Caso’s slip resistance testing is reliable. Plaintiff
points out that Dr. De Caso employed industry-standard equipment and methodologies following
recognized ASTM standards. Moreover, he used an English XL tribometer for slip index
measurements, a BOT-3000E tribometer for dynamic coefficient of friction measurements, and an
SJ-210 surface roughness meter. ECF No. [48-1] at 15. Dr. De Caso notes that these devices are
used and consistent with the ASTM F1694 (Standard Guide for Composing Walkway Surface
Investigation), and the ASTM F2508 (Standard Practice for Validation of Walkway Tribometers.
ECF No. [64] ¶¶ 5, 31. Carnival does not contest the reliability of the measurements of the slip
index of the subject floor, but challenges Dr. De Caso’s opinions which are not based on
identifiable methodology. This includes his opinions that the floor at the time of the incident was
more likely than not to become wet, or his observations, some one and a half years later, of grease
film on the floor suggesting a grease film incident on the day in question. ECF No. [48] at 7-11.
As to Dr. De Caso’s opinions beyond his slip index testing, Plaintiff has failed to establish or point
to any reliable methodology.
Finally, helpfulness, turns on whether the proffered testimony “concern[s] matters that are
beyond the understanding of the average lay person.” Edwards v. Shanley, 580 F. App'x 816, 823 (11th Cir. 2014) (quoting Frazier, 387 F.3d at 1262). Here, Plaintiff has agreed to redact all legal
conclusions from the expert report and limit the testimony of Dr. De Caso to opinions related to

his slip index testing. As such, Carnival’s Motion, ECF No. [48], is granted.
ii. Dr. Nicholas Suite and Dr. Victoria-Maria Sekunda
In its Motion to Strike, ECF No. [48], Carnival argues Dr. Nicholas Suite should be precluded
from testifying because Olenik never produced a report prepared and signed by Dr. Suite as
required by Federal Rule of Civil Procedure 26(a)(2)(B). ECF No. [48] at 14. After the filing of
the Motion, on February 4, 2026, Plaintiff served Carnival a Supplemental Rule 26 Expert Witness
Disclosure which included a report from Dr. Suite. ECF Nos. [52] at 2; [52-3] at 7. Thereafter, on
February 6, 2026, Plaintiff served Carnival a Second Supplemental Disclosure which disclosed a
new witness, Dr. Victoria-Maria Sekunda, and a copy of her report concerning neuropsychological
evaluations conducted of Helen Olenik. ECF Nos. [52] at 2; [52-6]. Carnival argues that discovery
closed on January 6, 2026, and the deadline for the Parties to file dispositive pre-trial motions was

January 28, 2026. As such, Carnival contends that the late disclosure of those reports is neither
substantially justified nor harmless, and the reports should be excluded. ECF No. [52] at 3.
Carnival also seeks to exclude the testimony of Dr. Suite and Dr. Sekunda. Id. Carnival points out that even though Dr. Suite evaluated Helen Olenik and prepared a report
dated September 22, 2025, the report was not served until four months later, after discovery closed
and the deadline for filing dispositive motions passed. Id. at 4. Carnival contends this report is the
first time it has been asserted that Helen Olenik’s post-incident mental decline was caused by a
head injury. Likewise, Carnival points out Dr. Sekunda first evaluated Helen Olenik on November
25, 2025, yet the February 6, 2026, Supplemental Notice was the first time Dr. Sekunda’s role as
a treating doctor was disclosed. Id. Carnival argues it has suffered harm because it is now too late
to obtain a rebuttal report from Carnival’s expert neurologist, to depose Dr. Suite and Dr. Sekunda,
or to raise Daubert challenges. Id. at 5. Carnival further argues it is prejudiced because the claim
that advanced through discovery was that Helen Olenik’s cognitive decline was due to immobility

while she recovered from pelvic fractures. Had it known Helen Olenik suffered a head injury in
her fall, it would have provided such information to its experts, and it would have arranged for a
neuropsychology expert to perform testing and address Dr. Sekunda’s report. Id. at 5-6. Finally,
Carnival argues that the prejudice from late disclosure cannot be cured through depositions outside
of the discovery period, as Carnival is unable to challenge the reliability of the experts in a timely
Daubert motion, and Carnival’s Motion for Summary Judgment seeks dismissal of Helen Olenik’s
claim for damages for neurocognitive decline because there is no medical expert opinion to support
causation. Id. at 6.
Plaintiff responds that on December 16, 2025, Dr. Suite was disclosed with a detailed summary
of his anticipated opinions. ECF No. [74] at 4. Plaintiff reveals that Dr. Suite examined Helen

Olenik on September 22, 2025, but Dr. Suite did not provide a report until January 30, 2026, which
Plaintiff served upon Carnival on February 4, 2026. Id. at 5. Plaintiff also contends that Carnival’s
claim that Dr Suite’s report is the first time it was asserted Helen Olenik’s mental decline was
caused by a concussion and head injury is belied by the pleadings and Dr. Sekunda was not retained
for litigation purposes but evaluated Helen Olenik as part of her ongoing medical care and
treatment for the injuries she sustained in the fall. Id. at 6. As a result, Plaintiff’s counsel claims
they did not learn of Dr. Sekunda’s identity until early February 2026, when members of the Olenik
family provided documentation and information to counsel. Id. at 7. As such, Plaintiff points out
he disclosed Dr. Sekunda and produced her report within hours of receiving the information. Id.
Plaintiff argues these late disclosures were substantially justified and harmless, and the factors set
forth in Lips v. City of Hollywood, 350 F. App'x 328, 340–41 (11th Cir. 2009), to determine
whether exclusion is appropriate, weigh against exclusion. Id. In Lips, the Eleventh Circuit held
that in determining whether a failure to disclose was substantially justified or harmless “we

consider the non-disclosing party's explanation for its failure to disclose, the importance of the
information, and any prejudice to the opposing party if the information had been admitted.” Lips
v. City of Hollywood, 350 F. App'x 328, 340 (11th Cir. 2009) (citing Romero v. Drummond
Co., 552 F.3d 1303, 1321 (11th Cir. 2008)). Plaintiff contends that Dr. Suite’s testimony is
“critically important” and exclusion of his testimony “would effectively end this claim.” Id. at 9.
Plaintiff also contends that there is a reasonable explanation for the late disclosures. Dr. Suite did
not finish his report until January 28, 2026, and counsel was not aware of Dr. Sekunda until early
February. Id. at 9-10. Finally, Plaintiff argues this Court should impose curative measures rather
than exclusion and proposes:
(a) Permitting Carnival to depose Dr. Suite and Dr. Sekunda at mutually
agreeable dates before trial;
(b) Permitting Carnival's expert Dr. Herskowitz to review and supplement his
opinions in light of Dr. Suite's report;
(c) Permitting Carnival to file a supplemental Daubert motion directed at Dr.
Suite and/or Dr. Sekunda within 21 days of the completion of those depositions;
(d) Adjusting any pretrial deadlines as necessary to accommodate the
foregoing.

Id. at 11.
The Court finds that Plaintiff has not satisfied his burden of showing that the failure to comply
with Rule 26 was substantially justified or harmless. On April 16, 2025, this Court issued a
Scheduling Order requiring that, by December 9, 2025, the Parties were to disclose experts and
exchange expert witness summaries or reports, and by December 23, 2026, the Parties were to
exchange rebuttal expert witness summaries or reports. All discovery, including expert discovery
was to be completed by January 6, 2026. See ECF No. [16]. Neither party requested an extension
of those deadlines. As Plaintiff acknowledges, Dr. Suite’s report was not provided until February
4, 2026, well after the close of discovery and after the deadline to exchange expert witness reports.
Similarly, Dr. Sekunda was not disclosed as an expert until February 6, 2026.

As for Dr. Suite, Plaintiff has offered no explanation for why he did not seek an extension of
the Court’s deadlines. As Carnival points out and Plaintiff concedes, Dr. Suite examined Helen
Olenik on September 22, 2025, months before expert disclosures were due. Dr. Suite had sufficient
time to prepare his report, and Plaintiff should have sought an extension if there was a reason for
the delay. The Court is not convinced that Dr. Suite’s December 16, 2025 summary of anticipated
opinions is sufficient. As Carnival correctly points out, “‘disclosure of expert testimony within the
meaning of the federal rule contemplates not only the identification of the expert, but also the
provision of a written report containing ‘a complete statement of all opinions’ and ‘the basis and
reasons therefor.’ Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (quoting Fed. R. Civ. P.
26(a)(2)(B)).

Moreover, Carnival has demonstrated prejudice from Plaintiff’s disregard of the Scheduling
Order. The deadline to complete all discovery passed on January 6, 2026, and the deadline to file
dispositive motions passed on January 28, 2026. It is now too late for Carnival to obtain rebuttal
reports, depose Dr. Suite about his opinions, or to raise Daubert challenges. Additionally, in Dr.
Suite’s initial summary disclosure, he indicated he would testify:
within a reasonable degree of medical probability, that Mrs. Olenik sustained
traumatic injuries in the fall and that traumatic injury in geriatric individuals is
known to be associated with accelerated and/or earlier onset neurocognitive
impairment. Based on the reported contrast between Mrs. Olenik’s condition and
functioning at/around the time of the fall and during her immediate recovery, as
compared to her current condition, Dr. Suite is expected to opine that the April 29,
2024 fall more likely than not caused or substantially contributed to an early onset
neurocognitive decline.
ECF No. [52-2] at 4. It is only upon receipt of Dr. Suite’s untimely report in a supplemental
disclosure that Carnival was notified that Dr. Suite formed the opinion that Helen Olenik suffered
a concussion due to significant jarring of her head in the fall. ECF No. [52-3] at 13. Though
Plaintiff claims paragraph 28 of the Amended Complaint alleges that Helen Olenik suffered “early
onset of cognitive decline as a result of the traumatic fractures and the prolonged recovery time
she spent in medical facilities and prolonged periods of immobility”, no such language exists. Even
if that allegation existed, the Court agrees with Carnival that such a statement is not the same as
a theory of worsening cognitive impairment because of a concussion suffered in the fall. “While it
is true that Rule 26(e) mandates, at times, a party supplement or correct its disclosure, that is not

an end-around of discovery deadlines.” In re Fla. Cement & Concrete Antitrust Litig., No. 09-
23493-CIV, 2011 WL 13174537, at *7 (S.D. Fla. Nov. 17, 2011). “The purpose of rebuttal and
supplementary disclosures is just that—to rebut and to supplement. These disclosures are not
intended to provide an extension of the deadline by which a party must deliver the lion's share of
its expert information.” Id. (quoting Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73
F.3d 546, 571 (5th Cir. 1996)).
Similarly, the Court finds Plaintiff has failed to offer a reasonable explanation for the late
disclosure of Dr. Sekunda. Though Plaintiff’s counsel may not have known about Dr. Sekunda’s
treatment of Helen Olenik prior to the discovery deadlines, Plaintiff fails to explain why Plaintiff

and his counsel did not communicate regarding this ongoing treatment. Moreover, for the same
reasons as applied to Dr. Suite, Carnival has established prejudice if Dr. Sekunda is permitted to
testify. As such, Carnival’s Motion to Strike, ECF No. [52], is granted.
B. Summary Judgment
i. Evidence of a Dangerous Condition
Carnival argues it is entitled to summary judgment on all Counts because Olenik has failed to
provide evidence that the floor was contaminated or otherwise in a dangerous condition at the time
of the alleged incident. ECF No. [47] at 4. Carnival contends that the CCTV camera footage shows
that, prior to Helen Olenik’s fall, more than 25 people were walking over the subject area without

incident and there is no apparent source of liquid or contamination on the floor. Id. at 5. Moreover,
neither John Olenik or Helen Olenik recall noticing any substance on the floor or any substance
on Helen Olenik’s clothing after she fell. Id. While Carnival acknowledges a caution sign was on
the floor several feet in front of Helen Olenik, it argues the sign is not evidence of an unsafe
condition but was in place to advise passengers that the floor could become wet because there was
a pool nearby. Id. Carnival contends that although Dr. De Caso offers the opinion that the slip
index of the floor, when wet, falls below the minimum threshold of safety, Dr. De Caso has no
actual knowledge of whether the floor was wet at the time of the incident. Id. Similarly, Carnival
argues that though Dr. De Caso opined that grease film can be a contributor to slip and fall

incidents, Dr. De Caso has no knowledge of whether grease film was on the floor at the time of
the incident. Id.
Plaintiff responds that Dr. De Caso’s water testing demonstrates the subject floor was safe
when dry but becomes dangerously slippery when wet. ECF No. [66] at 7. Moreover, Plaintiff
contends Dr. De Caso’s inspection documented visible grease contamination on the tile surface
from food service operations in the adjacent buffet area. Id. at 8. Plaintiff asserts that the CCTV
camera footage does not contradict this account because the alleged dangerous condition (a
combination of water contamination from pool traffic and invisible grease film accumulation)
would not be visible on a CCTV camera. Id. at 9. Plaintiff further asserts in his Response to
Carnival Corporation’s Statement of Material Facts that the caution sign present on the floor near
where Helen Olenik fell indicates the floor may have been wet because of guests using the pool
and jacuzzi. ECF No. [67] ¶ 7.
To establish a breach of a defendant's duty of care in a maritime negligence case, a plaintiff

must establish that “a dangerous condition existed that caused the claimed injury.” Williams v.
Carnival Corp., 440 F. Supp. 3d 1316, 1319 (S.D. Fla. 2020); see also Caron v. NCL (Bah.), Ltd., 910 F.3d 1359, 1369 (11th Cir. 2018) (“To survive summary judgment on his negligence claim
based on a dangerous condition, [a plaintiff] must produce evidence, sufficient for a jury to find
for him, that the [condition identified] was a dangerous condition[.]”).
Contrary to Plaintiff’s argument, he has not presented any evidence of a dangerous condition
on the day of the incident in question. While Dr. De Caso has opined that water or grease can cause
the floor to become dangerously slippery, Dr. De Caso cannot opine as to whether the floor was
dangerous on the date in question. While it is not dispositive that John or Helen Olenik notice any
contamination on the floor, Plaintiff has failed to present any evidence that a dangerous condition

existed or that anyone on the day in question noticed water, grease, or any contamination on the
floor where Helen Olenik fell. See Haiser v. MSC Cruises (USA) Inc., No. 18-CV-60964-RS, 2019
WL 4693200, at *4 (S.D. Fla. Aug. 9, 2019) (finding that even though the Plaintiff could not
identify whether there was a foreign substance on the floor prior to her fall, her theory of liability
was not hypothetical because she presented the testimony of a fellow passenger who observed a
pool of water on the floor); Merideth v. Carnival Corp., 49 F. Supp. 3d 1090, 1093 (S.D. Fla.
2014) (finding that though the Plaintiff could not identify whether there was a foreign substance
on the floor prior to her slip and fall, Defendant’s security officer testified the housekeeper cleaned
up condensation); Villa v. Carnival Corp., 207 F. Supp. 3d 1311, 1314 (S.D. Fla. 2016) (finding
that though Plaintiff could not identify the substance he slipped on, he testified that half his body
was wet as a result of the fall). Moreover, though a caution sign was a couple of feet from where
Helen Olenik fell, a cruise ship operator is not automatically liable any time a passenger is injured
in the area of the sign. See Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 722 (11th Cir. 2019)

(“We are merely holding that a cruise ship operator has notice of a condition—and thus a duty to
warn—if a sign is posted on a ship warning about the condition. This decision does not mean that
a cruise ship operator is automatically liable any time a passenger is injured in the area of the
sign.”)
Absent any record evidence that the floor where the Plaintiff fell was wet or otherwise
contaminated, Olenik’s assertion of a dangerous condition is entirely hypothetical. “The mere fact
that an accident occurs does not give rise to a presumption that the setting of the accident
constituted a dangerous condition.” Miller v. NCL (Bahamas) Ltd., No. 1:15-CV-22254-UU, 2016
WL 4809347, at *4 (S.D. Fla. Apr. 6, 2016) (citing Isbell v. Carnival Corp., 462 F. Supp. 2d 1232,
1237 (S.D. Fla. 2006)). “Rather, it is the plaintiff's responsibility to come forth with enough

evidence proving there was a dangerous condition.” Klein v. Seven Seas Cruises S. DE R.L., No.
16-21981-CIV, 2017 WL 3405531, at *3 (S.D. Fla. Aug. 7, 2017). Therefore, without evidence
that an existing condition was dangerous, a plaintiff's maritime negligence claim will fail.
Plaintiff has failed to present evidence sufficient for a jury to find that the Defendant had actual
or constructive knowledge of any dangerous condition or had a duty to warn of that dangerous
condition. As such, there is no genuine issue of material fact that exists, and Carnival’s Motion for
Summary Judgment, ECF No. [47], is granted.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion to Strike and Exclude the Opinions from Plaintiff’s Expert, ECF
Case No. 25-cv-20901-BLOOM/Elfenbein

No. [48], is GRANTED.
2. Defendant’s Motion to Strike Plaintiffs Supplemental Rule 26 Expert Witness
Disclosure for Nicholas Suite and Untimely Supplemental Disclosure of Victoria
Maria-Sekunda, ECF No. [52] is GRANTED.
3. Defendant’s Motion for Summary Judgment, ECF No. [47] is GRANTED.
4. To the extent not otherwise disposed of, any scheduled hearings, court appearances,
and trial are CANCELED, all pending motions are denied as MOOT and all deadlines
are TERMINATED;
5. The Clerk is DIRECTED to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on April 3, 2026.

UNITED STATES DISTRICT JUDGE
ce: counsel of record

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