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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-81648-Civ-MATTHEWMAN

IN THE MATTER OF THE COMPLAINT OF

TYLER CHAVES, FOR EXONERATION FROM

OR LIMITATION OF LIABILITY AS OWNERS

OF A 23-FOOT 2005 PRO-LINE BOAT, HULL ID

NO. PLCSP054H405 

______________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER AND

CLAIMANT GET MY BOAT, INC.’S JOINT DAUBERT MOTION TO STRIKE

CERTAIN OPINIONS OF CLAIMANT’S LIABILITY EXPERT, 

ALAN RICHARD [DE 63] 

THIS CAUSE is before the Court upon Petitioner Tyler Chaves’ (“Petitioner”) and 

Claimant/Cross-Defendant Get My Boat Inc.’s (“Claimant GMB”) Joint Daubert Motion to Strike 

Certain Opinions of Claimant’s Liability Expert, Alan Richard (“Motion”) [DE 63]. Claimant 

Donald Partridge (“Claimant Partridge”) has filed a response to the Motion [DE 78], and Petitioner

and GMB have replied [DE 93]. The Court held a hearing on the Motion on January 25, 2024. The 

matter is now ripe for review. The Court has carefully considered the parties’ written submissions, 

the parties’ oral argument at the hearing, the record, and applicable law.

I. BACKGROUND

Claimant Partridge has disclosed Alan Richard as his marine safety and regulations expert. 

[DE 63 at 2]. Alan Richard seeks to provide expert opinions on alleged safety defects and 

shortcomings in Petitioner’s rental of his vessel. Id. The entirety of his expert report and detailed 

opinions is on the docket at DE 63-1. 

SW Feb 12, 2024 WPB

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II. MOTION, RESPONSE, AND REPLY

In their Motion, Petitioner and Claimant GMB seek to exclude the opinions of Mr. Richard 

and argue that Mr. Richard’s opinions are rife with impermissible legal conclusions that are not 

helpful to the Court. [DE 63 at 4–9]. According to Petitioner and Claimant GMB, “[h]ired attorney 

Richard’s opinions regarding the purported negligence of Chaves, the seaworthiness of his boat, 

and supposed statutory violations and their bearing on the subject incident are not helpful to the 

trier of fact in this matter.” Id. at 6. They further argue that “Attorney Richard attempts to cloak 

his advocacy as ‘expert opinions,’ which invades the province of the trier of fact not only through 

his express statements that Chaves was negligent, but also his insinuations that the vessel was

unseaworthy due to the lack of an ECOS lanyard.” Id. Petitioner and Claimant GMB claim that 

the “trier of fact is fully capable of assessing the facts and determining liability based on those

facts; he/she does not require expert testimony to rule on given issues. This is particularly true

regarding Richard’s opinions on the alleged statutory violations, as even if they had occurred, they

could certainly be considered to have little, if any, bearing on the purported causes of the incident 

or how it unfolded.” Id. at 8–9. They assert that Mr. Richard’s opinion on what damages should or 

should not be awarded is wholly improper. Id. at 9. Finally, Petitioner and Claimant GMB take 

issue with Mr. Richard’s use of legal terms, opinion on negligence, and opinion on the applicability 

and extent of the Florida Livery Statute. Id. 

In response, Claimant Partridge concedes that Mr. Richard “is not entitled to opine on what 

damages are available to Partridge” and that whether Claimant GMB was a principal or accessory 

before the fact in Petitioner’s statutory breaches is a legal conclusion within the province of the 

Court. [DE 78 at 2, 4]. Next, Claimant Partridge asserts that “Captain Richard’s opinion would be 

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helpful to the trier of facts to describe what is an ECOS Link and how it works. It would also be 

helpful to explain how not having an ECOS Link aboard would impact the requirement that the 

vessel be seaworthy before the voyage as stated.” Id. Claimant asserts more generally that Mr. 

Richard “should be allowed to discuss facts and draw reasonable conclusions from them as to 

whether or not standards of care were met, or not met, by Chaves. The same thing would be true 

as to facts that prove statutory violations of the Florida Boating Safety statutes occurred.” Id.

Claimant Partridge also believes that Mr. Richard’s opinion that “both Chaves and GMB were 

negligent is permissible under FRE 704” and there “is nothing improper about an expert citing to 

facts which demonstrate breaches of duty.” Id. at 3–4. Claimant Partridge further points out that, 

at the bench trial, the “Court can simply disregard Captain Richard’s opinions should it choose to 

do so or give them the weight they deserve.” Id. at 4. He asserts that an “expert is permitted to 

opine on the ultimate issue under FRE 704(a)” and “[t]he mere reference to a term with legal 

significance in an expert opinion does not necessarily transform the opinion into an inadmissible 

legal conclusion.” Id. at 4–5. Rather, the “pertinent inquiry is whether Captain Richard’s opinions 

are admissible factual opinions, or whether they are inadmissible on the grounds they represent 

conclusions as to determinative questions of law.” Id. at 5. Finally, Claimant Partridge argues that 

experts routinely testify as to industry standards and safety practices, and, in this specific case, that 

“would include safe boating practices and complying with the Florida Statutes and Florida 

administrative code regarding renting of boats for money.” Id.

In reply, Petitioner and Claimant GMB first assert that “Mr. Richard’s opinion regarding 

the engine cut-off switch, addressed as Opinion two (2), remains an impermissible legal conclusion 

due to his inclusion of the term ‘unseaworthy.’” [DE 93 at 2]. Next, they argue that Mr. Richard 

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improperly uses a legally operative term—“negligent”—and that term should be “excluded for 

invading the providence of the Judge.” Id. They also contend that Mr. Richard cannot testify that 

Petitioner “breached his statutory duty” by failing to display the safety placard since “[b]reach of 

a statutory duty is an opinion that clearly assigns liability in no uncertain terms, and should be 

excluded on similar grounds to his other opinions that use legally significant terms.” Id. at 3. 

Petitioner and Claimant GMB further maintain that “all of Richard’s conclusions of law as to GMB 

are inadmissible and should be stricken.” Id. at 4. Finally, Petitioner and Claimant GMB argue 

with regard to Mr. Richard’s opinions generally that “every opinion offered by Richard addresses 

either the applicability of certain statutes, or the breach in duty owed, rather than the relevance of 

certain statutes and the duties owed beyond the common knowledge as the average lay person.” 

Id. at 5. They further maintain that the “use of legal language in an expert opinion is permissible 

when it trac[k]s with statutory language, when the opinion is as to the facts of the matter, not as to 

the ultimate issue of liability.” Id. 

III. RELEVANT LAW

Federal Rule of Evidence 702 governs the admissibility of expert testimony.1 A party that 

proffers the testimony of an expert under Rule 702 bears the burden of laying the proper foundation 

and demonstrating 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 

1 The newest version of the Rule (which went into effect on December 1, 2023) states as follows: “A witness who is 

qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or 

otherwise if the proponent demonstrates to the court that it is more likely than not that: (a) the expert's scientific, 

technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact 

in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles 

and methods; and (d) the expert's opinion reflects a reliable application of the principles and methods to the facts of 

the case.” Fed. R. Evid. 702. The Court is aware of the changes to Rule 702, and the rulings contained in this Order 

are consistent with the new version.

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(11th Cir. 1999). The Eleventh Circuit “has previously held that expert testimony may be admitted 

if three requirements are met. First, the expert must be qualified to testify competently regarding 

the matter he or she intends to address. Second, the methodology used must be sufficiently reliable 

as determined by a Daubert inquiry. Third, the testimony must assist the trier of fact through the 

application of expertise to understand the evidence or determine a fact in issue.” Kilpatrick v. Breg, 

Inc., 613 F.3d 1329, 1335 (11th Cir. 2010); see also Horrillo v. Cook Inc., No. 08-60931-CIV, 

2014 WL 2708498, at *2 (S.D. Fla. June 6, 2014); Southpoint Condo. Ass'n v. Lexington Ins. Co., 

No. 19-CV-61365, 2020 WL 3581611, at *2–3 (S.D. Fla. July 1, 2020) (setting forth a clear and 

detailed summary of the law under Daubert and Federal Rule of Evidence 702).

The judge plays a “gatekeeping” role in determining admissibility. See Daubert v. Merrell 

Dow Pharms., Inc., 509 U.S. 579, 589 n.7, 597 (1993). However, this gatekeeping role “is not 

intended to supplant the adversary system or the role of the jury.” Southpoint Condo. Ass'n, 2020 

WL 3581611, at *3 (quoting Quiet Tech. DC-8, Inc. v. Hurel-Dubois, UK Ltd., 326 F.3d 1333, 

1341 (11th Cir. 2003) (citations omitted)). A district court enjoys “considerable leeway” in making 

determinations regarding the admissibility of expert testimony and the reliability of an expert 

opinion. United States v. Frazier, 387 F.3d 1244, 1258–59 (11th Cir. 2004) (citing Kumho Tire 

Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

“[C]ourts must remain chary not to improperly use [Rule 702’s] admissibility criteria to 

supplant a plaintiff's right to a jury trial.” Moore v. Intuitive Surgical, Inc., 995 F.3d 839, 850 (11th

Cir. 2021) (“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.” (quotation marks omitted)); see also Quiet Tech. DC-8, Inc., 326 F.3d at

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1341 (11th Cir. 2003) (“[I]t is not the role of the district court to make ultimate conclusions as to 

the persuasiveness of the proffered evidence ... [or to] supplant the adversary system or the role of 

the jury.” (citation and quotation marks omitted)). But neither can a court abdicate its “gatekeeping 

role” to ensure that expert testimony is reliable before it is admitted, as required by Daubert and 

Rule 702. See McLain v. Metabolife, Int'l, Inc., 401 F.3d 1233, 1238 (11th Cir. 2005) (“A trial 

court ... abuses its discretion by failing to act as a gatekeeper” to ensure reliability of expert 

testimony); see also Wilson v. Flack, No. 19-14294, 2022 WL 4477025, at *8 (11th Cir. Sept. 27, 

2022).

In a bench trial, “[t]here is less need for the gatekeeper to keep the gate when the gatekeeper 

is keeping the gate only for h[er]self.” United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 

2005); see also Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000); Ass Armor, LLC v. Under 

Armour, Inc., No. 15-cv-20853-CIV, 2016 WL 7156092, at *4 (S.D. Fla. Dec. 8, 2016). That is 

because the Court as a fact finder is “presumably competent to disregard what he thinks he should 

not have heard, or to discount it for practical and sensible reasons.” Ass Armor, 2016 WL 7156092, 

at *4 (internal quotation marks and citations omitted). At trial, the Court as fact finder is free to 

later decide to disregard testimony in whole or in part and/or to decide how much weight to give 

the testimony. See Brown, 415 F.3d at 1270.

Thus, “[w]here a trial judge conducts a bench trial, the judge need not conduct a Daubert

(or Rule 702) analysis before presentation of the evidence, even though [s]he must determine 

admissibility at some point.” Travelers Prop. Cas. Co. of Am. v. Barkley, No. 16-61768-CIV, 2017 

WL 4867012, at *1 (S.D. Fla. June 2, 2017) (quoting Kansas City S. Ry. Co. v. Sny Island Levee 

Drainage Dist., 831 F.3d 892, 900 (7th Cir. 2016)). “Notwithstanding, courts may still go through 

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the individual analyses of the experts or motions, and have granted these motions to strike prior to 

the bench trial.” Broberg v. Carnival Corp., No. 17-cv-21537, 2018 WL 4778457, at *1 (S.D. Fla. 

June 11, 2018) (citing Exim Brickell LLC v. Bariven, S.A., No. 09-CV-20915, 2011 WL 13131317, 

at *4 (S.D. Fla. Mar. 11, 2011); Goldberg v. Paris Hilton Entm't, Inc., No. 08-22261-CIV, 2009 

WL 1393416, at *4 (S.D. Fla. May 18, 2009)), report and recommendation adopted, No. 17-

21537-CIV, 2018 WL 4776386 (S.D. Fla. July 3, 2018); see also W. Palm Beach Acquisitions, 

Inc. v. Kia Motors Am., Inc., No. 20-CV-80780, 2022 WL 1211403, at *2 (S.D. Fla. Apr. 25, 

2022). 

IV. ANALYSIS AND RULINGS

A. Mr. Richard’s Qualifications

With regard to the Daubert analysis, Petitioner and Claimant GMB do not dispute Mr. 

Richard’s qualifications and have waived any argument about his qualifications. The Court also 

independently finds Mr. Richard to be qualified in light of his credentials. See DE 78-1. 

B. Reliability of Mr. Richard’s Methodology 

At the January 25, 2024 hearing, counsel for Petitioner argued that Mr. Richard, who is a 

maritime lawyer and a law professor, is acting as nothing more than an advocate for Claimant 

Partridge and that he is trying to provide opinions about factual findings and conclusions of law 

that Claimant Partridge’s attorneys can argue to the trier of fact. In other words, Petitioner contends 

that Mr. Richard is trying to provide legal argument cloaked as an opinion testimony and notes 

that Mr. Richard is not a scientific expert or engineer. Claimant GMB has adopted these arguments. 

To the extent that Petitioner and Claimant GMB object to Mr. Richard’s methodology, their

arguments on methodology are inextricably intertwined with the issue of whether Mr. Richard’s 

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testimony would assist the trier of fact, which is discussed below. 

C. Whether Mr. Richard’s Testimony Would Assist the Trier of Fact 

The main argument in the Motion is that Mr. Richard’s testimony would not assist the trier 

of fact. “[E]xpert testimony is admissible if it concerns matters that are beyond the understanding 

of the average lay person” and offers something “more than what lawyers for the parties can argue 

in closing arguments.” Webb v. Carnival Corp., 321 F.R.D. 420, 425 (S.D. Fla. 2017) (quoting 

Frazier, 387 F.3d at 1262–63). Furthermore, while “[a]n expert may testify as to his opinions on 

an ultimate issue of fact . . . he ‘may not testify as to his opinion regarding ultimate legal 

conclusions.’” Umana-Fowler v. NCL (Bahamas) Ltd., 49 F. Supp. 3d 1120, 1122 (S.D. Fla. 2014)

(quoting United States v. Delatorre, 308 Fed. App’x 380, 383 (11th Cir. 2009)). 

The Court has carefully reviewed Mr. Richard’s opinions in his expert report, DE 63-1 at 

5–8, and finds that the wholesale exclusion of Mr. Richard’s testimony is not proper here, 

especially in light of the fact that this case is proceeding to a bench trial. However, pursuant to the 

applicable law, Mr. Richard shall not be permitted to provide legal opinions or legal conclusions, 

or state a legal determination as to whether, for example, a party was negligent. The Court does 

not want a law professor and lawyer testifying at trial as to how the case should be decided. Those 

are determinations to be made by the Court, not an expert. Further, Mr. Richard shall not be 

permitted to testify on issues and topics that simply do not require expert testimony, such as 

Opinions # 1, 2, 3, 4, 6, 7 in the expert report [DE 63-1]. The parties can either agree to these facts 

or the Court can determine these facts without necessity of an expert. Finally, in light of the Court’s 

summary judgment rulings, several of Mr. Richard’s opinions are now moot, such as Opinion # 5. 

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The Court has also considered the remaining opinions not expressly referenced above. The 

Court finds that Opinion # 8 is questionable and cannot discern why it is necessary; however, the 

Court will not disallow Opinion # 8 at this juncture. For Opinions # 9, 10, 11, 13, and 14 (to the 

extent they are not now moot in light of the Court’s prior rulings in this case), Mr. Richard can 

testify as to his opinions on ultimate issues of fact, but not as to his opinions on ultimate legal 

conclusions. The Court also finds that Opinions # 12, 15, 16, and 17 are improper expert opinions. 

If Mr. Richard’s testimony on opinions 8, 9, 10, 11, 13, and 14 stray too far afield, 

Petitioner and Claimant GMB can lodge contemporaneous objections or motions to strike, for 

determination by the trial judge. Additionally, all of Mr. Richard’s testimony will also be subject 

to rigorous cross-examination.

V. CONCLUSION

In light of the foregoing, it is hereby ORDERED AND ADJUDGED that Petitioner’s and 

Claimant GMB’s Joint Daubert Motion to Strike Certain Opinions of Claimant’s Liability Expert, 

Alan Richard [DE 63] is GRANTED IN PART AND DENIED IN PART, as specifically stated 

in this Order. 

The Court’s rulings herein are without prejudice to any party’s ability to seek 

reconsideration of this Court’s Order during the crucible of trial, in the event circumstances arise 

which support such a request. 

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DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, 

this 12th day of February, 2024.

WILLIAM MATTHEWMAN 

United States Magistrate Judge

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