December 17, 2013
John Doe. v. Royal Caribbean Cruises, Ltd., et al
Motion for Sanctions
The experienced admiralty attorneys at Lipcon, Margulies & Winkleman, P.A. work to ensure that your case is prepared for trial no matter what the Defendant does. In this case, the Plaintiff was hurt when he allegedly received bad medical care while aboard a Royal Caribbean ship. When Royal Caribbean attempted to delay the Plaintiff’s preparation for trial, our experienced cruise ship lawyers asked the court to intervene to make sure that the Plaintiff was being treated fairly.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.:13-cv-20984- MARTINEZ/MCALILEY
ROYAL CARIBBEAN CRUISES, LTD,
ALBERTO BERRIO (Ship’s Doctor),
DANIELA CROITORU, (Ship’s Nurse),
CHRISTIAAN HERBST, (Ship’s Nurse),
DOCTOR DOE, (Ship’s Doctor),
NURSE DOE, (Ship’s Nurse),
PLAINTIFF’S MOTION FOR SANCTIONS AGAINST ROYAL CARIBBEAN FOR VIOLATION OF THIS HONORABLE COURT’S ORDER
Plaintiff, JOHN DOE, by and through his undersigned counsel, and pursuant to the Federal Rules of Civil Procedure and the Local Rules of the Southern District of Florida, hereby files this Motion for Sanctions against Defendant Royal Caribbean Cruises, Ltd. (“Royal Caribbean”) for violation of this Honorable Court’s Order [D.E. 55], and for good cause relies on the following:
ROYAL CARIBBEAN HAS REPEATEDLY FAILED TO ACT TIMELY WITH REGARD TO DISCOVERY IN THIS CASE. ROYAL CARIBBEAN’S DILATORY CONDUCT HAS PREJUDICED THE PLAINTIFF AND THIS HONORABLE COURT SHOULD ENTER SANCTIONS AGAINST ROYAL CARIBBEAN IN THE FORM OF A NEGATIVE EVIDENTIARY INFERENCE REGARDING ALL OUTSTANDING DISCOVERY.
This case arises out of severe injuries sustained by Plaintiff while a passenger onboard the Royal Caribbean vessel Oasis of the Seas. Plaintiff alleges that Royal Caribbean’s medical staff, ALBERTO BERRIO, DANIELA CROITORU, and CHRISTIAAN HERBST (the “Medical Defendants”), negligently misdiagnosed and mistreated the Plaintiff’s medical condition, and further that Royal Caribbean failed to evacuate the Plaintiff from its vessel when Royal Caribbean was no longer able to provide reasonable medical care under the circumstances.
On July 29, 2013, Plaintiff propounded initial written discovery on Defendant Royal Caribbean. This discovery was propounded to determine, amongst other things, whether Royal Caribbean had previously evacuated persons from the Oasis of the Seas, what contact the Oasis of the Seas had with Royal Caribbean’s shoreside departments and/or the Coast Guard regarding the feasibility and/or necessity of an evacuation, and what other reasons Royal Caribbean might have had for failing to evacuate Plaintiff from the Oasis of the Seas when he became critically ill. All of this information goes to heart of this case because Royal Caribbean and/or the Medical Defendants have alternatively claimed that a medical evacuation was unnecessary, unfeasible, and/or dangerous.
It took Royal Caribbean until October 11, 2013 to finally respond to Plaintiff’s discovery requests. Each time Royal Caribbean requested an extension of time to respond to discovery, the Plaintiff had to reschedule Royal Caribbean’s corporate representative deposition so that he would not be prejudiced by the lack of paper discovery prior to the deposition.
On November 21, 2013, this Honorable Court held a hearing on Plaintiff’s motion to compel better answers to Plaintiff’s initial discovery from Royal Caribbean. At the hearing, the Court specifically picked December 13, 2013 as the date for Royal Caribbean to turn over supplemental responses so that Plaintiff would have sufficient time to review these responses prior to taking the Corporate representative deposition scheduled for December 19, 2013.
On December 13, 2013, counsel for Royal Caribbean contacted undersigned counsel and stated that Royal Caribbean would be unable to provide all of the compelled supplemental responses as required by the Court. Further, undersigned counsel was informed that the Royal Caribbean employee with the necessary information was out of the country and would be until January. Undersigned counsel stated that this was unacceptable given the scheduled corporate representative deposition, the holidays, and the impending discovery cut-off (before which substantial other discovery remained to be done). Shortly thereafter, counsel for Royal Caribbean contacted Plaintiff again, promising to get as much of the discovery as possible in advance of December 19th, 2013 deposition, and informing Plaintiff that the single corporate representative deposition was now going to be split into two separate depositions to cover all necessary areas of inquiry. The second corporate representative deposition was then scheduled for January 8th, 2014.
Despite this new second corporate representative deposition, the outstanding supplemental responses to discovery owed to Plaintiff by Royal Caribbean are almost all relevant to the areas of inquiry that are to be addressed on December 19, 2013. Plaintiff will be severely prejudiced by Royal Caribbean’s failure to timely disclose this information. Shockingly, out of the supplemental discovery that Royal Caribbean has provided, Plaintiff has not received a single new document. In short, Royal Caribbean is playing games with the discovery process to prejudice the Plaintiff in the preparation of his case and this Honorable Court should sanction Royal Caribbean for this conduct.
II. Royal Caribbean’s conduct is sanctionable.
Federal Rule of Civil Procedure 37(b)(2)(a) gives the court the power to sanction a party for failure to comply with a discovery order and states:
(A) For Not Obeying a Discovery Order. If a party or a party’s officer, director, or managing agent–or a witness designated under Rule 30(b)(6) or 31(a)(4)–fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(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
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
Id. Herein, this Honorable Court ordered Royal Caribbean to provide supplemental responses to Plaintiff’s initial discovery by December 13, 2013, so as to not prejudice the Plaintiff. It is undisputed that Royal Caribbean failed to provide those supplemental responses in their entirety. Further, the supplemental responses that were provided were essentially meaningless as they provide no new documents, but simply state “none” or reference previously produced evidence.
Rule 37 confers upon District Courts broad discretion to fashion appropriate sanctions for the violation of discovery orders. See Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). Herein, Plaintiff is not asking the Court for the harsh sanction of striking Royal Caribbean’s pleadings, however the Court should endeavor to balance the scales of fairness since Royal Caribbean’s dilatory conduct has prejudiced the Plaintiff. See Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir.1999) (“Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process”).
III. Plaintiff will be prejudiced by Royal Caribbean’s failure to comply with this Honorable Court’s order.
The following supplemental responses have yet to be produced by Royal Caribbean, in spite of this Honorable Court’s order requiring same:
1. The number of persons evacuated from the Oasis of the Seas in the three year period prior to April 27, 2012, including the condition the evacuee was suffering from at the time of the evacuation, who made the decision to evacuate, the name and location of the ship at the time of evacuation, and the means of evacuation (i.e. private air ambulance service, coast guard helicopter, coast guard speedboat, etc).
2. The weather conditions at the time of the evacuations named in response to the above.
3. The number of times the Oasis of the Seas diverted to an unscheduled port of call in the three year period preceding April 27, 2012, identifying the type of medical emergency that caused the vessel to divert (i.e. heart attack, burst appendix, broken bone, etc), who made the decision to divert, the location of the ship at the time it diverted from its originally planned course, and the port the ship diverted to.
4. If a Royal Caribbean vessel arrives to port everglades late, or misses the port entirely, does Royal Caribbean pay any penalties, fines, fees etc. for doing so?
Requests for Production
1. Any and all ship’s log entries (in any ship’s log kept aboard the vessel), for the subject cruise which makes any reference, whatsoever, to any of the Medical Defendants.
2. Any and all serious violation reports, limited to medical emergencies with all identifying information regarding third parties who received medical care redacted.
3. Voice records from the bridge of the Oasis of the Seas on the date of the incident, limited to the time frame during which Plaintiff was in the medical facility on the vessel and further limited to communications regarding Plaintiff.
4. Any and all correspondence between Royal Caribbean and the Medical Defendants onboard the Oasis of the Seas between April 27-28th, 2012.
5. Any and all medical procedure manuals for the operation of the medical facility aboard the Oasis of the Seas in effect at the time of the subject incident.
6. Any and all policies and procedures in effect at the time of the subject incident in anyway related to the provisioning of the medical facility aboard the Oasis of the Seas.
7. Any and all correspondence between any shoreside employee and/or department of Royal Caribbean, and a Royal Caribbean employee/crewmember and/or independent contractor aboard the Oasis of the Seas, from 7:00 pm April 27th, 2012, up and until the Oasis of the Seas arrived in Ft. Lauderdale on April 28th, 2012 and in anyway related to the Plaintiff and/or a medical emergency.
8. All documents sufficient to support the responses provided to the interrogatories reproduced as numbers 1, 2, and 3 above and concerning medical evacuations from the Oasis of the Seas.
9. Any and all records regarding medical evacuations for a ruptured spleen from any Royal Caribbean ship for the three year period preceding the date of the incident alleged in the complaint. Names of persons evacuated may be redacted.
Contrary to what Royal Caribbean represents in its motion for enlargement of time [D.E. 59], significant discovery remains outstanding.
Plaintiff will be severely prejudiced by Royal Caribbean’s failure to provide the above discovery as ordered by the Court. Firstly, Plaintiff’s list of witnesses intended to be called at trial was due yesterday pursuant to this Honorable Court’s trial order. [D.E. 38]. Plaintiff furnished the Defendants his witness list, but was of course unable to include the names of any witnesses that Plaintiff may have learned about from the outstanding discovery listed above.
Such discovery could include the names of other Royal Caribbean shipboard physicians who ordered evacuations for the exact same injuries suffered by the Plaintiff during the exact same weather conditions. Alternatively, this discovery could disclose that other persons with the exact same conditions were treated or diagnosed differently. Accordingly, failure to provide this discovery prejudices the Plaintiff’s case against not just Royal Caribbean, but also the Medical Defendants.
Royal Caribbean represents that Plaintiff will suffer no prejudice because there is a newly scheduled second corporate representative deposition to be taken on January 8, 2013, and that will respond to the areas of inquiry related to the outstanding discovery. This is not only a convenient argument, but it is simply untrue. For example, the deposition on December 19, 2013 is still supposed to cover 1) prior incidents for the three year period preceding the date of the incident in the complaint; 2) communication and/or communication capabilities between Defendant’s vessels and shoreside departments and/or the Coast Guard; 3) communications with shoreside departments, medical facilities, and the Coast Guard concerning the subject incident on the date alleged in the complaint; 4) International Safety Management Code provisions that apply to the incident alleged in the Complaint; and 5) costs and loss of revenue associated with late arrivals into a port of call.
Royal Caribbean expects Plaintiff to address these areas during Thursday’s deposition despite not having any information on prior incidents/evacuations, voice logs from the bridge, information on prior diversions, and/or information regarding penalties or fines for arriving late to Port Everglades and/or missing the port entirely. This is extremely prejudicial to the Plaintiff, who will not be able to confront Royal Caribbean’s representative with any evidence, nor fashion questions to learn more about the evidence he should already have in his possession. Ultimately, this prejudices Plaintiff in the preparation of his case for trial. There is simply no time to reschedule this deposition again due to the holidays, the numerous depositions already scheduled including the three Medical Defendants and many of Mr. Doe’s treating physicians, and the Court’s impending discovery cut-off.
Accordingly, Plaintiff asks this Honorable Court to rebalance the scales of fairness in this and eliminate the prejudice caused by Royal Caribbean’s dilatory conduct, by creating a negative evidentiary inference regarding all outstanding discovery and/or prohibiting the Royal Caribbean from supporting or opposing designated claims or defenses that relate to the outstanding discovery.
Royal Caribbean has repeatedly delayed responding to discovery in this case. Although it is anticipated that Royal Caribbean will argue that it is not their fault Plaintiff agreed to initial extensions, the Court should not punish Plaintiff for attempting to provide all possible professional courtesies to Royal Caribbean. Further, Plaintiff should not be punished for anticipating that Royal Caribbean would comply with a Court order. Royal Caribbean violated this Court’s order and prejudiced the Plaintiff with its conduct. Plaintiff now asks this Honorable Court to restore the balance of fairness in this litigation.
WHEREFORE, Plaintiff respectfully requests this Honorable Court grant Plaintiff’s Motion and enter sanctions against Royal Caribbean as detailed above.
LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A. Attorneys for Plaintiff Suite 1776, One Biscayne Tower Miami, Florida 33131 Telephone: (305) 373-3016 Facsimile: (305) 373-6204
By: /s/ Eric Charles Morales
ERIC C. MORALES
FL BAR NO. 91875
CERTIFICATE OF CONFERENCE
Undersigned counsel hereby certifies that in accordance with local rule 7.1, he conferred with counsel for Royal Caribbean in an effort to avoid the filing of the present motion. Counsel for Royal Caribbean represented that he will do his best to provide the outstanding discovery in advance of the Corporate Representative deposition scheduled for December 19, 2013, but could make no guarantees. To the extent that Royal Caribbean believes that it can moot this motion by producing the outstanding discovery, Plaintiff respectfully disagrees. Even if Royal Caribbean produces the evidence tomorrow or the day of the deposition, it does not give Plaintiff sufficient time for review.
 Despite the several requests of the Plaintiff.
 Plaintiff also alleges negligent hiring on the part of Royal Caribbean, as well as apparent agency for the acts of the Medical Defendants and a joint venture between the Medical Defendants and Royal Caribbean.
 Plaintiff strove to give Royal Caribbean every professional courtesy possible under the circumstances, which included a fairly short period in which to conduct necessary discovery. Plaintiff expressed this concern in an initial email to counsel for Royal Caribbean when the first request for an enlargement of time to respond to discovery was made. See August 27, 2013 email from Plaintiff’s counsel in response to RCCL initial request for enlargement of time, attached hereto as Exhibit 1. Ultimately, Royal Caribbean needed three more extensions to respond to Plaintiff’s initial discovery.
 Despite providing many of the supplemental responses ordered by the Court, all of supplemental responses to requests for production that were provided to Plaintiff are answered either “none” or with references back to documents initially produced by Royal Caribbean. So in reality, after three weeks to gather the information ordered by the Court, Royal Caribbean has provided nothing. This notwithstanding the fact that Royal Caribbean should have procured information and documents prior to objecting (during the initial two and half months Royal Caribbean had to respond to discovery) and then simply turned them over when their objections were overruled. Instead, Royal Caribbean simply objected, not knowing what information or documents were available and then only bothered to look after their objections were overruled. Of course, all of the information and documents that Royal Caribbean actually has are conveniently unavailable in advance of the corporate representative deposition set for December 19, 2013.
 The interrogatories and requests for production are reproduced herein with the limitations ordered by the Court. [D.E. 55].
 The court ordered disclosure of these documents without prejudice to Royal Caribbean proving that retrieval of these documents would be unduly burdensome. Notably, Royal Caribbean has made no showing that retrieval of these documents would be burdensome, other than to make a general assertion in its motion for enlargement of time that responding to all of Plaintiff’s discovery is difficult. This is not a sufficient showing of burden and thus these documents should have been produced.
 This is important as it is anticipated that Royal Caribbean and the Medical Defendants intend to argue that evacuation was either not feasible, too dangerous, or unnecessary. In fact, Mr. Doe testified that he was given these excuses when he asked to be evacuated from the vessel.
 This argument is convenient because there was no alleged need for a second corporate representative deposition until December 13, 2013, the day Royal Caribbean informed Plaintiff it would not be complying with the Court’s order.
 Not to mention the schedules of three separate law firms involved in this case.