December 23, 2013
John Doe. v. Royal Caribbean Cruises, Ltd., et al
Motion for Sanctions
If you are hurt or injured on a cruise ship, it is important that you immediately consult with an experienced cruise ship lawyer like those at Lipcon, Margulies & Winkleman, P.A. Our maritime attorneys collectively have decades of experience in litigation against cruise lines. As a result, we are prepared to deal with any situation that may arise in maritime personal injury case. In this case, an injured passenger alleged that he received bad medical care aboard a Royal Caribbean ship. Our admiralty lawyers sued the cruise line, and the doctor who gave the alleged negligent treatment. In this motion, our attorneys ask the court to enter sanctions against the Doctor for walking out of his deposition while being questioned.
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),
ANTHONY WOODIWISS, (Ship’s Doctor)
PLAINTIFF’S MOTION FOR SANCTIONS AGAINST DR. BERRIO FOR WALKING OUT OF HIS DEPOSITION OR, ALTERNATIVELY TO COMPEL DR. BERRIO TO APPEAR IN MIAMI TO COMPLETE HIS DEPOSITION
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 Dr. Berrio for Walking Out of His Deposition or, Alternatively to Compel Dr. Berrio to Appear in Miami to Complete his Deposition, and for good cause relies on the following:
AT HIS DEPOSITION CONDUCTED DECEMBER 21, 2013, DR. BERRIO SPRUNG MULTIPLE SURPRISES ON UNDERSIGNED COUNSEL MEANT TO PREJUDCE HIM IN THE TAKING OF THIS DEPOSITION. ULTIMATELY, THE DOCTOR WALKED OUT OF THE DEPOSITION BEFORE PLAINTIFF COULD FINISH HIS QUESTIONING. THE DOCTOR’S CONDUCT IS OUTRAGEOUS AND HE SHOULD BE SANCTIONED BY STRIKING HIS PLEADINGS. ALTERNATIVELY, HE SHOULD BE COMPELLED TO RETURN TO MIAMI TO COMPLETE THE DEPOSITION AND TO PAY FOR ALL ASSOCIATED COSTS AND UNDERSIGNED COUNSEL’S ATTORNEYS’ FEES FOR THE PREPARATION AND FILING OF THIS MOTION.
This matter involves allegedly negligent medical care administered onboard the Royal Caribbean Oasis of the Seas to passenger JOHN DOE. Defendant ALBERTO BERRIO, (hereinafter “Dr. Berrio”) was the senior ship’s physician in charge of the infirmary aboard the Oasis of the Seas on the date that Plaintiff received the allegedly negligent medical care. Dr. Berrio’s testimony is critical in this case because by his own admission, he was in charge of the infirmary and was responsible for the medical care rendered therein. Further, according to Royal Caribbean, Dr. Berrio made all decisions regarding the medical care of the Plaintiff.
Plaintiff has sought to depose Dr. Berrio in this matter since July 26, 2013. See July 26, 2013 email attaching a Notice of Taking Deposition of Dr. Berrio, attached hereto as Exhibit 1. Despite the fact that Plaintiff noticed the taking of Dr. Berrio’s deposition almost two months ahead of time, Plaintiff agreed to reschedule this deposition in order to accommodate Dr. Berrio’s request. See September 20, 2013 email agreeing to reschedule the Deposition of Dr. Berrio, attached hereto as Exhibit 2. Ultimately, it took Dr. Berrio another two months to provide Plaintiff dates for his deposition in December, one month before the Court’s discovery cut-off. See November 27, 2013 email agreeing to schedule Dr. Berrio’s deposition for December 21, 2013, attached hereto as Exhibit 3. In order to further accommodate Dr. Berrio’s requests, undersigned counsel agreed to conduct the deposition on Saturday, the week before Christmas, during the vacation of one of Plaintiff’s attorneys, at Defense counsel’s office at one o’clock in the afternoon (a time also chosen by Dr. Berrio). What happened thereafter was a series of calculated steps taken by Dr. Berrio to prejudice the Plaintiff from conducting a full and forthright deposition which warrant severe sanctions.
II. Dr. Berrio’s outrageous conduct.
Despite the months of correspondence and numerous accommodations by Plaintiff’s counsel involved in scheduling Dr. Berrio’s deposition, two days before his deposition and while the parties were at the deposition of Royal Caribbean’s Corporate Representative, counsel for Dr. Berrio advised the parties that Dr. Berrio’s flight would not be arriving in Miami until noon on the day of his deposition. Accordingly, counsel for Dr. Berrio asked if the parties would agree to start the deposition at two o’clock in the afternoon instead of one o’clock as originally scheduled. Undersigned counsel agreed and stated that he had made arrangements to be available all day to conduct the deposition. Thereafter, counsel for Dr. Berrio inquired as to how long undersigned counsel believed his deposition questioning would last. Undersigned counsel responded that he did not know how long the deposition would take. In response, counsel for Dr. Berrio said that he would not hold the undersigned to any time estimates, but just wanted to “get an idea of the time the deposition would take.” Again as a courtesy to defense counsel, undersigned counsel stated that if things went as anticipated, undersigned counsel estimated that the deposition would take between two and three hours.
On Saturday, December 21, 2013, undersigned counsel arrived at defense counsel’s office before two o’clock, ready to begin the deposition. Much to the undersigned’s surprise, a Spanish to English translator was present. Dr. Berrio’s attorney never previously mentioned that a translator was necessary for the deposition, nor did Plaintiff anticipate that one would be necessary. Accordingly, because undersigned counsel had no notice regarding the need for a translator, he was not permitted the opportunity to select (or at least jointly agree) to a translator for the Plaintiff noticed deposition of the Defendant; nor was he permitted to review the qualifications of the translator provided by the Defendant.
Even despite this eleventh hour surprise, undersigned counsel carried on with the deposition because on a Saturday afternoon the week before Christmas all other options were necessarily limited. Dr. Berrio’s next surprise came roughly forty five minutes into his deposition. When the deposition videographer needed to pause in order to switch videotapes Dr. Berrio, at his counsel’s urging, got up from the table to take a break. Dr. Berrio was joined during this break in the middle of his testimony by his attorney. Dr. Berrio and his attorney left the room and clearly conferred.
Before restarting the deposition, Dr. Berrio’s attorney asked the undersigned how much longer the deposition would last because Dr. Berrio needed to catch his return flight at 8:30 pm. Undersigned counsel said he would do his best to help Dr. Berrio make his flight, but that he was entitled to seven hours of questioning if necessary pursuant to Fed. R. Civ. Pro. 30(d)(1). Further, undersigned counsel noted that the deposition would certainly take longer than he had initially anticipated due to the use of the never before mentioned translator. Thereafter, counsel for Dr. Berrio stated that he would like to be finished by the latest at 5:45 pm.
The deposition continued with the parties taking another break, again at Dr. Berrio’s request. Undersigned counsel never asked to take a break, never used the restroom, and endeavored to speed the deposition along as yet another courtesy to Dr. Berrio. Despite the patience of the Plaintiff with Dr. Berrio’s numerous surprises and requests, this kindness was not repaid.
Dr. Berrio walks out as the questioning takes aim at his negligence.
At approximately 5:15 pm (a whole thirty minutes before Dr. Berrio supposedly had to leave in order to catch his 8:30 pm flight), Dr. Berrio’s counsel interrupted Plaintiff’s questioning demanding to know whether undersigned counsel would be done in fifteen minutes. After an argument regarding Plaintiff’s right to continue deposing Dr. Berrio, Defense counsel terminated the deposition, instructed his client to get up and leave, and both walked out of the room.
The timing of Dr. Berrio’s walkout was very telling. Firstly, neither Dr. Berrio nor his attorney explained why Dr. Berrio had to leave a deposition at 5:30 in order to make a fifteen minute drive to Miami International Airport on a Saturday for a flight that did not leave for another three hours. Secondly, he walked out of the deposition about twenty minutes before his previously mentioned drop dead cut-off time. He did this despite undersigned counsel arguing that the parties should continue until they had at least used all the time available. Thirdly, no explanation was given for why Dr. Berrio inexplicably booked a grand total of eight and a half hours, touch-down to take-off, to be in Miami for a deposition that by rule could potentially last seven hours, without any prior explanation to counsel. If Dr. Berrio only gave himself eight and a half hours to arrive at MIA, clear customs, drive to the deposition, be deposed, go back to the airport, clear security and board his flight home, his lack of prudent planning should not prejudice the Plaintiff.
Rather than a deep concern over the potential of a missed flight, Plaintiff submits that Dr. Berrio (and/or his counsel) was more concerned about giving testimony that was damning to his case. Over the approximately three hours and fifteen minutes that Plaintiff was permitted to question Dr. Berrio, he made admission after admission that, inter alia, he had no experience treating ruptured spleens (the condition at issue herein) other than as an attending anesthesiologist more than ten years prior to the date of the incident at issue; that Royal Caribbean actively provided medical training to him while he worked aboard ship (despite Royal Caribbean’s mantra in this and other cases that it is not in the business of providing medical care to passengers); that the medical training provided by Royal Caribbean included the recognition of cardiac arrests and the proper way to treat that illness (which is the illness Dr. Berrio negligently misdiagnosed the Plaintiff as having); and that he confers with Royal Caribbean and jointly makes a decision with Royal Caribbean regarding how to treat a patient and whether to evacuate a patient by helicopter (despite Royal Caribbean’s contention that the ship’s doctor acts alone in deciding whether or not to evacuate a patient from the ship). Plaintiff was no more than ten minutes into his line of questioning regarding Dr. Berrio’s specific treatment of the Plaintiff when Dr. Berrio chose to walk out. Plaintiff suggests that Dr. Berrio (at his counsel’s insistence) walked out to stop the questioning rather than to rush to catch his flight.
This is simply more conduct on the part of the Defendants aimed at prejudicing the Plaintiff in conducting his discovery in this case. If the Court does not intervene, the Defendants will only be emboldened to continue their unfair practices.
III. This Court should sanction Dr. Berrio for playing discovery games by striking Dr. Berrio’s pleadings. Alternatively, this Court should compel Dr. Berrio to appear in Miami to finish his deposition and to pay all associated costs and attorneys’ fees for the preparation and filing of this motion.
The only sanction that will correct the prejudice suffered by Plaintiff is the striking of Defendant Berrio’s pleadings. This Honorable Court has the power to enter this sanction pursuant to Fed. R. Civ. Pro. 37(d)(1)(a), which allows the Court to sanction a party when they fail to appear for deposition despite proper notice:
(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:
(i) a party or a party’s officer, director, or managing agent—or a person designated under Rule 30(b)(6) or 31(a)(4)—fails, after being served with proper notice, to appear for that person’s deposition
(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)—(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
The sanctions available under 37(b)(2)(A)(i)-(vi) referenced above, include striking the pleadings of the offending party. Herein, although Dr. Berrio initially appeared, he did not stay at his deposition until it was complete and can thus be sanctioned under this rule. The Rule also permits the trial court to “dismiss the action … or render a judgment by default against the disobedient party.” See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, (1976).
Additionally, this Honorable Court has the inherent power to sanction a party for bad faith discovery practices. See Carlucci v. Piper Aircraft Corp., 775 F.2d 1440, 1447 (11th Cir.1985) (“[D]eeply rooted in the common law tradition is the power of any court to manage its affairs [which] necessarily includes the authority to impose reasonable and appropriate sanctions upon errant lawyers practicing before it.”). It is clear that the Defendant is acting in bad faith.
The striking of Berrio’s pleadings is warranted as Plaintiff will never again have the opportunity he had on Saturday December 21, 2013 to question the Defendant in what was for lack of a better term, an undisturbed state. Even if the Court orders Dr. Berrio to finish his deposition, he will no doubt have carefully crafted answers constructed by his counsel for the Plaintiff’s remaining questions about which that counsel is now keenly aware are coming. Further, he will have carefully crafted responses that will seek to correct the already daming testimony that was given.
The sanction of striking the pleadings and granting default judgment is appropriate only where lesser sanctions are not adequate. See Inmuno Vital, Inc. v. Telemundo Grp., Inc., 203 F.R.D. 561, 573 (S.D. Fla. 2001). However, “overleniency is to be avoided where it results in inadequate protection of discovery.” In re Liquid Carbonic Truck Drivers Chemical Poisoning Litigation, 580 F.2d 819, 823 (5th Cir.1978). Because there is no lesser sanction that would cure the prejudice suffered by JOHN DOE due to the bad faith conduct of Defendant Berrio, this Honorable Court should enter the ultimate sanction against the Defendant.
Alternatively, this Court should compel Dr. Berrio to appear in Miami to finish his deposition and to pay all associated costs and attorneys’ fees for the preparation and filing of this motion. The Federal Rules of Civil Procedure Rule 37(a)(3)(b)(i) allows the Court to compel the compliance of a party who fails to answer questions during a deposition:
(a) Motion for an Order Compelling Disclosure or Discovery.
(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery …
(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
(i) a deponent fails to answer a question asked under Rule 30 or 31;
The entry of an order to compel is warranted where a defendant repeatedly refuses to answer questions at a deposition. See Pippen v. Georgia-Pac. Gypsum, LLC, 408 F. App’x 299, 302 (11th Cir. 2011) (reviewing order granting motion to compel and finding no abuse of discretion where a party committed various violations of discovery including repeated refusals to fully answer deposition questions pertaining to discoverable information.) Herein, Dr. Berrio refused to answer questions about his treatment of the Plaintiff by walking out of his deposition.
It is anticipated that Dr. Berrio will argue that Plaintiff “wasted” his time by asking unnecessary or irrelevant questions. This argument is disingenuous and unavailing. Although the transcript is not yet prepared, it will be provided to the Court upon receipt by the Plaintiff. When the Court reviews that transcript it will see that all of Plaintiff’s questions were relevant to this case. Plaintiff asked Dr. Berrio about his education and work experience, his work aboard Royal Caribbean ships, Royal Caribbean policies and procedures, the medical facility onboard the Oasis of the Seas, and the Doctor’s practices and past experience with substantially similar injuries.
Plaintiff was able to cover all of these topics in three hours and fifteen minutes despite the use of a translator. Notably, the Plaintiff’s deposition in this matter taken by counsel for Dr. Berrio took roughly the same amount of time without the use of a translator. Further, Defense counsel’s view of what is or is not relevant to the Plaintiff’s case frankly does not matter. The Plaintiff can conduct his deposition and structure his questioning in whatever manner he chooses so long as he does not harass the witness or ask for privileged information. Counsel for Dr. Berrio never once objected that Plaintiff did either.
Even if this Honorable Court grants Plaintiff’s requested relief, he will still be prejudiced as the Defendant will no doubt confer with his counsel about his testimony before the Plaintiff ever has a chance to resume his questioning.
Dr. Berrio created a difficult situation that was all his own making, and then sought to punish the Plaintiff for it by limiting his right to conduct discovery. Although the Plaintiff hopes that Dr. Berrio was simply negligent in the way he scheduled his flights, the overwhelming lack of prudent thought put into his scheduling, along with his last second decision to use a translator and the suspicious timing of his decision to walk out of his deposition leads the Plaintiff to believe that his conduct was intentionally aimed at circumscribing the Plaintiff’s rights under the Rules of Civil Procedure. The Court should not allow Dr. Berrio to get away with this kind of abusive discovery tactic.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an order compelling Dr. Berrio to appear in Miami to complete his deposition and to pay all costs associated with finishing his deposition. Further, Plaintiff requests this Honorable Court award monetary sanctions in the form of attorneys’ fees for the drafting and filing of the present motion.
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 and Federal Rule 37, he attempted to confer with counsel for Dr. Berrio prior to filing this motion. Firstly, as he walked out of the deposition, counsel for Dr. Berrio stated that the doctor would not return to Miami to complete his deposition, and may not even make himself available in his country of origin. This morning, Plaintiff again sent counsel for Dr. Berrio an email inquiring into whether Dr. Berrio would come to Miami to finish his deposition, and counsel for Dr. Berrio did not respond. Due to the fact that limited time remains to conduct discovery, Plaintiff files this motion in an abundance of caution to give Dr. Berrio ample time to brief his response and for the Court to consider the issues herein. Should Dr. Berrio agree to the relief requested herein at any point, the undersigned will immediately alert the Court.
 Plaintiff alleged that Royal Caribbean’s medical staff, including Dr. Berrio, almost caused the Plaintiff to bleed to death.
 Plaintiff also claims that Royal Caribbean was negligent for failing to evacuate the Plaintiff from its ship when his condition declined to the point that he needed immediate emergency care ashore. Lastly, Plaintiff has claims of apparent agency and joint venture.
 After all, Dr. Berrio worked onboard U.S. based cruise ships for over ten years and was required to diagnose and treat passenger’s medical conditions using the English language.
 When asked on the record what he conferred about, Dr. Berrio testified that his attorney was simply letting him use the phone to call his family. It is unclear why Dr. Berrio suddenly needed to call his family forty five minutes into his deposition, and also unclear how his attorney subliminally knew this and urged Dr. Berrio to get up from the table to do so.
 As the Court is well aware, the use of a translator significantly slows the taking of a deposition as every question and answer must be translated word for word. Conservatively estimating, the Defendant’s election to use a translator at least doubled the amount of time the deposition would take.
 Undersigned counsel even agreed to try and finish in thirty minutes if Dr. Berrio would keep his explanations short. (Dr. Berrio had given long expounding answers throughout the deposition, in fact, at one point his attorney instructed him that he should ensure that he was only answering the question that was asked.) When undersigned counsel suggested this, Dr. Berrio’s attorney said that he would not agree to limit Dr. Berrio’s answers. Apparently he missed the irony of that statement as he walked out of the deposition, completely limiting Dr. Berrio from giving any answers.
 See Google Map Directions from Fowler, White, Burnett, P.A. offices in Miami to Miami International Airport, attached hereto as Exhibit 4. Notably, these directions were retrieved Monday, December 23, 2013 and take into account current traffic conditions. It is reasonable to infer that less traffic would have existed on Saturday December 21, 2013 and that Dr. Berrio’s drive to the airport would have been even shorter. This is assuming Dr. Berrio even got on a flight at 8:30 pm. Given his lack of candor towards the Plaintiff, it is difficult to ascertain whether he was legitimately concerned about making his flight or simply concerned about providing more testimony that was damaging to his defense.
 It is important to note that although Dr. Berrio has separate counsel from Royal Caribbean, Royal Caribbean both provides the defense for Dr. Berrio and indemnifies Dr. Berrio.
 Presumably the Defendant will argue that this rule does not apply because he at least initially appeared at his deposition even though he walked out. However, this begs the question what really constitutes appearing? If Dr. Berrio had walked in and testified for only ten minutes would he be allowed to leave? That certainly cannot be the case and the fact that Dr. Berrio left during the most important line of questioning that he was asked means that his appearance was disingenuous.
 When Defense counsel made this argument at the deposition and undersigned counsel inquired as to what irrelevant question he had asked, Defense counsel could only come up with one question. That question was whether Royal Caribbean had any rules about fraternizing with passengers. Defense counsel neglected to remember that this question came in response to Dr. Berrio asking for a clarification regarding Plaintiff’s prior question of “what rules and/or regulations does Royal Caribbean have that you are subject to while working aboard its vessels?” Plaintiff then gave that example as a rule that Royal Caribbean might require the doctor to follow. Plaintiff is of course paraphrasing and the transcript to be filed will more accurately demonstrate the relevance of all of Plaintiff’s questions. Regardless, rules promulgated by Royal Caribbean that the Doctor may or may not have violated are certainly relevant to this case.