M.D. as parent and natural Guardian of A.L., a minor, v. Carnival Corporation

Lipcon, Margulies, Alsina & Winkleman, P.A

September 11, 2014

M.D. as parent and natural Guardian of A.L., a minor, v. Carnival Corporation

M.D. AS PARENT AND NATURAL
GUARDIAN OF A.L., A MINOR
Plaintiff,

v.

CARNIVAL CORPORATION,
Defendants.

                                                                        /

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR EXTENSION OF TIME TO SERVE EXPERT WITNESS DISCLOSURES

The Plaintiff, M.D. as parent and natural guardian of A.L., by and through undersigned counsel, hereby files her response in opposition to Defendant, CARNIVAL CORPORATION’S (“Carnival[’s]”) Motion for Extension of Time to Serve Expert Witness Disclosures [D.E. 64] and, in furtherance thereof, states as follows:

1. On July 30, 2014, minor A.L. entered an in-patient facility in Georgia for the injuries she suffered as a result of the rape at issue in this lawsuit. The Plaintiff was scheduled to remain in the facility for approximately 60 days, and due to the fact that the facility (Second Nature) is located in the wilderness, she would be unavailable during those 60 days.

2. As a result thereof, on the same day (July 30, 2014), the Plaintiff moved this Honorable Court for a continuance of trial and all remaining pretrial deadlines for a period of 120 days. [D.E. 59]. Carnival opposed the motion.

3. On August 5, 2014, this Honorable Court entered its Order granting in part the Plaintiff’s Motion for Continuance. [D.E. 61]. Specifically, the Court granted a continuance of the deadlines that pertained only to the Plaintiff, A.L., directly.

4. On August 18, 2014, Carnival moved for clarification of the Court’s August 5, 2014 Order and alternatively requested that the extension of deadlines apply to both parties. [D.E. 62].

5. At that time, the Plaintiff advised Carnival that the Court’s August 5, 2014 Order extended certain deadlines which were directly affected by the unavailability of the Plaintiff, A.L., which is what the Court meant by “as to Plaintiff only.” [See Certificate of Good Faith Conference in D.E. 62, p. 5].

6. Thus, based on the Plaintiff’s understanding, the Court’s Order was clear that it applied to both parties, but only as to those deadlines that pertained directly to the Plaintiff, A.L. (e.g., deposition, medical examinations, etc.).

7. All other deadlines therefore remained unaffected by the Court’s Order, including the August 25, 2014 deadline for the parties to exchange expert reports (for those experts who were not affected by the Plaintiff’s unavailability) pursuant to this Court’s Scheduling Order. [D.E. 23].

8. Accordingly, on August 25, 2014, the Plaintiff filed her Expert Witness Disclosures in accordance with the Court’s Scheduling Order. [D.E. 63].

9. Carnival, however, moved for an extension of time to disclose its experts on October 3, 2014 – more than a month after this Court’s deadline. [D.E. 64]. The only basis for the extension was its inexplicable lack of understanding of the Court’s Order on Plaintiff’s Motion for Continuance, which Plaintiff, again, maintains was self-explanatory.

10. Nevertheless, on September 3, 2014 (after Carnival moved for an extension), this Honorable Court entered its Order on Carnival’s Motion for Clarification, wherein the Court confirmed what Plaintiff had already told Carnival almost one month ago – i.e., that “the Court granted the Plaintiff’s motion, as listed in the order, for both parties but only as to any discovery or expert reports that relate directly to Plaintiff A.L..” [D.E. 65]. The Court therefore explained that the only deadlines which were extended related to those directly affected by the Plaintiff’s unavailability; for example, a medical expert who was not yet unable to examine the Plaintiff.

11. However, Carnival seeks to extend the expert disclosure deadline for all of its experts, regardless of whether the expert is directly affected by the Plaintiff’s in-patient status. Carnival has failed to show, for example, how its security or statistics experts are directly affected by the Plaintiff’s unavailability due to her in-patient status.

12. Considering the Court’s impending deadlines and the fact that trial is set and placed on the two-week trial calendar beginning December 15, 2014, Plaintiff must respectfully oppose Carnival’s motion for extension.

13. Specifically, pursuant to this Court’s Scheduling Order, all discovery (fact and expert) must be completed by October 3, 2014 (the same day Carnival seeks to disclose its experts) and all pretrial motions and memoranda of law must be filed by October 10, 2014. [D.E. 23]. Granting Carnival’s motion will therefore completely prevent the Plaintiff from having an opportunity to take the depositions of Carnival’s experts or conduct any written discovery concerning Carnival’s experts. The lack of expert discovery will, in turn, substantially prejudice the Plaintiff’s ability to file any motions striking and/or limiting such experts’ testimonies.

14. In its Order clarifying the Motion for Continuance, the Court noted that “it is the intent of the Court to limit any delay in discovery or the exchange of expert reports” [D.E. 65]. The Plaintiff agrees and submits that granting Carnival’s Motion for Extension herein will only unnecessarily delay this matter further to the severe disadvantage of the Plaintiff.[1]

WHEREFORE, based on the foregoing, the Plaintiff respectfully requests that this Honorable Court deny Carnival’s Motion for Extension of Time to Serve Expert Witness Disclosures [D.E. 64] in its entirety, as well as any further relief this Court deems just and proper.

RESPECTFULLY SUBMITTED
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204

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

Date: September 11, 2014

[1] On September 5, 2014, Carnival served the Plaintiff disclosures listing three expert and rebuttal expert witnesses. Plaintiff, however, has no way of knowing whether these are all of Carnival’s experts who do not directly relate to the Plaintiff, A.L.. Plaintiff further maintains that these disclosures are both untimely and inadequate as none of the experts provided reports. Therefore, contemporaneous with the instant response, the Plaintiff is filing a Motion to Strike two of the three experts who were required to submit reports under Rule 26 and this Court’s Scheduling Order.