D.M. v. NCL (Bahamas) Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A

October 3, 2014

D.M. v. NCL (Bahamas) Ltd.

D.M.,
Plaintiff,

v.

NCL (BAHAMAS) LTD.,
Defendant.

                                                                        /

PLAINTIFF’S REPLY IN FURTHER SUPPORT OF PLAINTIFF’S MOTION FOR SANCTIONS AGAINST DEFENDANT, NCL (BAHAMAS) LTD., FOR ITS FAILURE TO DISCLOSE PRIOR INCIDENT

The Plaintiff, D.M., by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, hereby files his reply in further support of his Motion for Sanctions against Defendant, NCL (BAHAMAS), LTD. (“NCL”) [D.E. 26], for its repeated failure to disclose at least one prior incident in response to Plaintiff’s written discovery requests as well as deposition questioning.  In furtherance thereof, the Plaintiff states as follows:

Introduction

The instant matter arises out of the personal injuries suffered by the Plaintiff while he was a passenger aboard NCL’s vessel. [D.E. 1].  Specifically, on September 3, 2013, the Plaintiff was on a cruise aboard the cruise ship the Norwegian Gem, and the port-of-call on that date was Great Stirrup Cay. [D.E. 1, ¶¶6-8].  Due to the fact that the cruise ship was unable to dock on that island, the ship dropped anchor and passengers were transported to and from the island by tenders. [See Page 8, Lines 15-25 of the deposition of NCL’s Corporate Representative attached hereto as Exhibit 1].

As the Plaintiff was attempting to disembark the tender to board the cruise ship, he tripped over the threshold between the gangway and the tender, and he sustained injuries as a result thereof. [D.E. 1, ¶9; see also Page 113, Lines 3-8 of the Plaintiff’s deposition attached hereto as Exhibit 2].  The Plaintiff therefore initiated this lawsuit alleging negligence against NCL due to inter alia, NCL’s failure to 1) provide adequate assistance between the tender and the cruise ship; 2) warn the Plaintiff of the dangers of crossing the gangway between the tender and the cruise ship; and/or 3) instruct passengers on how to embark/disembark the tender in a safe manner. [D.E. 1, ¶¶13(f), (i), (u)].

NCL’s Responses to Discovery Requests and Deposition Questioning

On July 9, 2014, the Plaintiff propounded his initial discovery upon NCL requesting, inter alia, information and documents concerning prior incidents involving a passenger suffering personal injury while embarking and/or disembarking NCL’s tenders.  On August 22, 2014, NCL served its answers to Plaintiff’s Initial Interrogatories and denied any prior incidents as follows:

Please list any and all accidents and/or incidents whereby a passenger has been injured while embarking and/or disembarking a tender from any of Defendant’s cruise ships within the three year period of time prior to the subject incident. For each such incident please state: (a) the date of the incident; (b) a brief description of the incident; (c) the name of the individual(s) involved in the incident; and, (d) the injury(ies) suffered as a result of the incident.

ANSWER:Notwithstanding, and without waving these objections, none.

Please state any and all claims and/or complaints received by the Defendant concerning the same type of gangway as the subject incident within three years prior to the subject incident. For each such complaint, please state: (a) the date of said complaint; (b) the name, address, and telephone number of the person making the complaint; (c) the substance of the complaint; and (d) the method the complaint was made (e.g., written comment card, etc.).

ANSWER:Notwithstanding, and without waving these objections, none.

[See ¶¶21-22 of NCL’s answers to Plaintiff’s Initial Interrogatories attached as Exhibit 3] (emphasis added).

In response to NCL Plaintiff’s Initial Request for Production, NCL also denied that there were any documents concerning prior incidents involving passengers being injured while embarking and/or disembarking NCL’s tenders, as follows:

Request No. 42

Any and all documents pertaining to passengers falling and/or being injured while embarking and/or disembarking Defendant’s tenders within the three year period of time prior to the subject incident.

ResponseNotwithstanding, and without waving these objections, none[.]

Request No. 43

Any and all claims and/or complaints received by Defendant within the three year period preceding the subject incident concerning passengers falling and/or being injured while embarking and/or disembarking Defendant’s tenders.

ResponseNotwithstanding, and without waving these objections, none[.]

Request No. 44

Any and all claims and/or complaints received by Defendant within the three year period preceding the subject incident concerning the same type of gangway as the subject incident.

ResponseNotwithstanding, and without waving these objections, none[.]

[See ¶¶42-44 of NCL’s response to Plaintiff’s Initial Request for Production attached as Exhibit 4] (emphasis added).

In addition to the above written discovery, on August 29, 2014, the Plaintiff took the deposition of NCL’s Corporate Representative.  Among the areas of inquiry were passengers falling and/or being injured while embarking and/or disembarking NCL’s tenders within the three-year period of time prior to the Plaintiff’s incident. [See ¶¶45-47 of the Notice of Taking Deposition attached as Exhibit 5.] NCL’s deposition testimony in response to questions on that topic was as follows:

Q:  Have there been any other incidents involving passengers sustaining personal injuries while embarking or disembarking NCL’s tenders within the past three years of the Plaintiff’s incident? …

A:  It’s my understanding that we responded in our interrogatories that no, there had been no substantially similar incidents on the gangway.

Q:  So, NCL maintains that there has not been any incidents within the past three years of the Plaintiff’s incident of passengers embarking and disembarking the tender being injured?…

A:  I believe I just answered that Norwegian Cruise Line is not aware of any… substantially similar incident of anybody embarking or disembarking the tender on the gangway.

Q:  And when you say substantially similar incident, what do you mean by that?

A:  Somebody who was tripping and falling on the gangway.

Q:  So, that’s your definition of substantially similar?

A:  That is correct.

Q:  Okay. So, somebody slipping and falling on the gangway would not be included in your description of substantially similar incidents?

A:  I don’t believe I was able to find anything where somebody slipped and fell on the tender gangway.

Q:  So, there are no incidents involving slip and falls within the past three years of the Plaintiff’s incident either?

A:  I can’t recall any.

Q:  And what about passengers just falling while embarking or disembarking tenders?

A:  I don’t know of anybody who just fell.

[See Exhibit 1, Page 68, Line 23 – Page 70, Line 24] (emphasis added).

As evident from the above testimony, NCL’s Corporate Representative repeatedly stated under oath that there were no other incidents involving a passenger being injured while embarking and/or disembarking NCL’s tenders.  As set forth below, however, Plaintiff’s own investigation proved otherwise.

Undisclosed Prior Incident Aboard NCL’s Tender

Despite NCL repeatedly denying the existence of prior incidents in both written discovery as well as deposition questioning, the Plaintiff was able to discover at least one other tender incident that occurred within the three-year period before the Plaintiff’s incident.

Specifically, pursuant to the limited information at the Plaintiff’s disposal, a passenger named Mary Jacobs was also involved in an incident where she sustained personal injuries while disembarking NCL’s tender on January 24, 2012.  As a result of those injuries, she sued the same Defendant herein – NCL – on June 21, 2013. See Jacobs v. NCL (Bahamas) Ltd., et al., Case No. 13-22818-CIV-King (S.D. Fla. 2013).

Based on NCL’s failure to disclose the above prior incident (and likely other incidents), the Plaintiff hereby respectfully requests that this Honorable Court enter an Order sanctioning NCL for its failure to abide by the Federal Rules of Civil Procedure.

Memorandum of Law

The purpose of discovery is to obtain the disclosure of all relevant information so that disputed issues are resolved fairly and justly in the light of a full and accurate understanding of the facts. See Hickman v. Taylor, 329 U.S. 495, 500-01 (1947).  Discovery is normally accomplished voluntarily — that is, the parties disclose relevant information without the need for court orders compelling disclosure. In this manner, lawyers do their duty as officers of the court seeking the truth. See Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1546 (11th Cir. 1993) (the Eleventh Circuit affirmed a court’s sanctions of striking the defendant’s answers, entering default judgment on the issue of liability, and awarding fees and costs, where the defendant answered and objected to interrogatories for the improper purpose of causing unnecessary delay, increasing the costs of litigation for the plaintiff, and obfuscating the truth).

To that end, it is well settled that district courts have the power to impose sanctions against a party for discovery violations, which is governed by Federal Rule of Civil Procedure 37.  That rule states that “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4) (emphasis added).  The rule goes on to discuss the appropriate sanctions for a party’s failure to disclose/respond to discovery as follows:

(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.

(1) Failure to Disclose or Supplement. If a party fails to provide information… the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure;

(B) may inform the jury of the party’s failure; and

(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

See Fed. R. Civ. P. 37(c)(1) (emphasis added). The “other appropriate sanctions” under Rule 37(b)(2)(A)(i)-(vi) include:

(i)   directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii)  prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v)  dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or …

Rule 37(b)(2)(A)(i)-(vi).

Further, the “imposition of sanctions for failure to provide discovery rests with the sound discretion of the district court, and will not be overturned absent abuse of the discretion.” Properties Int’l, Ltd. v. Turner, 706 F.2d 308, 310 (11th Cir. 1983) (affirming district court’s dismissal with prejudice of foreclosure suit, and striking of answer); see also Vilsant v. Saxon Mortgage Servs., Inc., 08-61148-CIV, 2009 WL 413724 (S.D. Fla. Feb. 18, 2009) (citing same).

Herein, the record evidence clearly shows that NCL was untruthful in written discovery and in its deposition when asked clear, unambiguous questions about prior incidents involving personal injuries to passengers while embarking and/or disembarking NCL’s tenders.   In fact, NCL concealed evidence three times.  First, NCL failed to truthfully disclose the prior incident when it answered Plaintiff’s Initial Interrogatories under oath.  Second, NCL failed to disclose the prior incident when it responded to Plaintiff’s Initial Request for Production.  And third, while under oath, NCL’s Corporate Representative failed to disclose the prior incident when directly asked.

In addition to NCL being untruthful and concealing evidence, it is also clear that the prior incident NCL failed to disclose is highly relevant to liability in this case, considering that it involves substantially similar claims (i.e., sustaining personal injuries as a result of NCL’s alleged negligence while disembarking NCL’s tender).  Similar to Malautea, NCL “provided incomplete answers as part of their campaign to obfuscate the truth.” Malautea, 987 F.2d at 1544.  It was NCL’s willful attempt at concealing the fact that it had prior notice of a dangerous condition in its tenders.  This failure to disclose has severely prejudiced the Plaintiff’s ability to adequately prepare the case for trial, especially when discovery is now closed and trial is set for the two-week period commencing on January 12, 2015.

In sum, NCL’s litigation behavior is an anathema to the spirit of the Federal Rules of Civil Procedure and is exactly the type of behavior that other courts have held warranted sanctions. Accordingly, the Plaintiff hereby respectfully requests that this Honorable Court enter an order sanctioning NCL by striking NCL’s pleadings in this matter, or such other sanction as this Court deems appropriate.

WHEREFORE, based on the foregoing, the Plaintiff respectfully requests that this Honorable Court enter an Order sanctioning NCL, along with all further relief this Court deems just and proper.

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1

Undersigned counsel hereby certifies that he has conferred in good faith with counsel for NCL, who advised that NCL is opposed to the relief sought herein.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By:  /s/ Jason R. Margulies
JASON R. MARGULIES
Florida Bar No. 57916
JACQUELINE GARCELL
Florida Bar No. 104358