William Skye v. Maersk Lines Limited – Part 1

Lipcon, Margulies, Alsina & Winkleman, P.A

February 29, 2012

William Skye v. Maersk Lines Limited – Part 1

Motion in Limine

As this client’s case moved forward to trial, our attorneys filed a motion in limine to preclude the introduction of certain evidence by the Defendant. The Plaintiff provided evidence of numerous violations of federal laws. Accordingly, in this motion in limine the Plaintiff argued that as a result, the Defendant is not permitted to introduce any evidence of the Plaintiff’s comparative negligence. The Plaintiff has also argued that pursuant to admiralty law, the Defendant should not be permitted to argue or introduce evidence that another party’s negligence caused the Plaintiff’s injuries. Lastly, the Plaintiff argued that the Defendant should not be permitted to offer evidence or make argument that the Plaintiff’s claims are not legitimate.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 11-21589-CIV-CMA
WILLIAM C. SKYE
Plaintiff,

v.

MAERSK LINE, LIMITED CORPORATION
d/b/a MAERSK LINE LIMITED
Defendant.
________________________________________/

PLAINTIFF’S MOTION IN LIMINE

PLAINTIFF, WILLIAM C. SKYE (“Skye”), by and through his undersigned counsel, hereby files his Motion in limine against Defendant, MAERSK LINE LIMITED (“Maersk”), to preclude the introduction of any Evidence or Argument from the Defendant regarding Comparitive or Contributory Negligence, to preclude any Argument regarding Fraud, and to preclude any argument of Negligence on the part of Non-Party Defendants and for good cause relies on the following Memorandum of law:

THE PLAINTIFF HAS PRODUCED EVIDENCE OF HUNDREDS OF VIOLATIONS OF FEDERAL LAWS THAT WERE ENACTED TO PROTECT SEAFARERS SUCH AS WILLIAM SKYE. EXPERT TESTIMONY IN THIS CASE DEMONSTRATES THESE VIOLATIONS CONTRIBUTED TO SKYE’S INJURY. THE DEFENDANT HAS PRODUCED NO EVIDENCE TO DISPUTE THESE VIOLATIONS. MAERSK’S CONDUCT WAS NEGLIGENT PER SE. PURSUANT TO THE JONES ACT, MAERSK SHOULD BE BARRED FROM MAKING ANY ARGUMENT OF COMPARATIVE NEGLIGENCE IN THIS CASE. ADDITIONALLY, MAERSK SHOULD BE BARRED FROM MAKING ANY ARGUMENTS OF FRAUD, AS THESE ALLEGATIONS ARE UNSUPPORTED BY EVIDENCE, HAVE NO PROBATIVE VALUE, AND ARE HIGHLY PREJUDICIAL TO THE PLAINTIFF. THE DEFENDANT HAS WAIVED ANY DEFENSE BASED ON FRAUD BY FAILING TO PLEAD SUCH DEFENSE IN ITS ANSWER TO PLAINTIFF’S COMPLAINT. LASTLY, THE DEFENDANT SHOULD BE BARRED FROM ASSERTING THE NEGLIGENCE OF ANY NON-PARTY DEFENDANT AS A CAUSE OF THE PLAINTIFF’S INJURIES.

I.Maersk Should not be Permitted to Offer Evidence or Argument that Bill Skye was Comparatively Negligent.

Maersk has pled as an affirmative Defense to this case, that Mr. Skye was comparatively negligent and contributed to his own injury [D.E. 34]. Through discovery, it has become apparent that Maersk intends to argue that Mr. Skye should have worked less hours if he was fatigued and that in choosing to continue to work the long hours required by Maersk, Mr. Skye was partially responsible for his own injury. Maersk further intends to argue that Bill Skye chose to return to his employment with Maersk, even though he knew about the conditions on Maersk’s vessels. Lastly, Maersk intends to argue that Bill Skye was negligent for not notifying Maersk of the problems with excessive duty and duty times on board Maersk ships. Maersk should be prohibited from arguing any of the above because Maersk violated federal statutes meant to protect the Plaintiff and FELA thus prohibits the consideration of comparative negligence.

Congress enacted the Federal Employer’s Liability Act (FELA) with the purpose of shifting the cost of the human overheard of the rail road industry to employers whose negligence caused or contributed to injuries and deaths. See Kernan v. Am. Dredging Co., 355 U.S. 426 (1958). Encompassed in this act was 45 U.S.C. § 53 which states:

In all actions on and after April 22, 1908 brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.

45 U.S.C.A. § 53 (emphasis added).

It has been held that Congress’ intent with this section was not only to make a railroad’s duty absolute, but also, where the injury was in part occasioned by the failure of the railroad to comply with laws, to excuse employees from the effect of the rules of contributory negligence and assumption of risk. See Erie R. Co. v. Schleenbaker, 257 F. 667 (6th Cir. 1919) certiorari denied 40 S.Ct. 13, 250 U.S. 666.

The Plaintiff has claimed negligence under the Jones Act, which expressly incorporates FELA. See 46 U.S.C. §30104; 45 U.S.C. §51; American Dredging Co. v. Miller, 510 U.S. 443, 455-56 (1994). Federal Courts have held that the § 53 specifically applies to an action brought pursuant to the Jones Act. See Neal v. Saga Shipping Co., 407 F.2d 481 (5th Cir. 1969) (holding that the provision barring consideration of plaintiff’s fault applies in Jones Act cases where the employer was found to have violated a maritime statute); See also Watterson v. Mallard Bay Drilling, Inc., 649 So.2d 431 (3rd Cir. 1994) writ denied 650 So.2d 241, cert denied 115 S.Ct. 2269 (contributory negligence provision of FELA is applicable to actions under the Jones Act and bars the court from considering contributory negligence of seaman if employer violated statute enacted for safety of employee).

In a case involving the failure of a shipping company to comply with a coast guard regulation requiring medical care providers to hold documentary evidence attesting to proper training, it was found that this violation was enough to bar any defense of comparative negligence. See Kelly v. Keystone Shipping Co., 281 F.Supp.2d 313 (D. Mass. 2003). In a case factually similar to the present matter, the Supreme Court found that evidence of violations of work rest hour statutes promulgated to protect railroad workers prohibited the court from taking into account comparative negligence. See Baltimore & O.R. Co. v. Wilson, 242 U.S. 295, 298 (1916) (defendant found to have violated the Hours of Service Act, chap. 2939, § 2, 34 Stat. at L. 1415, 1416, Comp. Stat. 1913, §§ 8677, 8678).

Herein, the Plaintiff has alleged and offered evidence proving that the Defendant repeatedly violated 46 U.S.C. § 8104 and 46 C.F.R. § 15.111. See STCW Duty Logs and Accompanying STCW Violation Spreadsheets [D.E. 70-5 and D.E. 70-6]. These statutes codify the provisions set forth by the Standards of Training Certification and Watchkeeping, a convention that implemented safety and training standards for officers on commercial ships. [1] Specifically, the statutory provisions at issue concern maximum hours of work and the minimum amount of rest that must be had by watch standing officers onboard commercial vessels. These regulations were promulgated to increase the safety of commercial vessels for the cargo and crew that they carry.[2] The Defendant has offered no evidence to rebut Plaintiff’s evidence of violations of the STCW and it is thus an undisputed fact that the Defendant repeatedly violated these laws.

Under the broad reading of FELA and particularly of 45 U.S.C. § 53, the Court should prevent the Defendant from offering any argument or evidence regarding comparative negligence. This was the approach taken by the Supreme Court in Kernan v. American Dredging Co., 355 U.S. 426 (1957). Therein the question addressed by the Court was “whether, in the absence of any showing of negligence, the Jones Act […] permits recovery for the death of a seaman resulting from a violation of a statutory duty.” Id at 431. The Supreme Court held that it does. Id at 432.

The Court also held that when an employee is injured as a result of the employer’s violation of a statute, the employer must pay damages even if the injury the employee suffered was not an injury that the statute was specifically aimed at protecting against. Id at 432–33. (In Kernan the statute involved a mandatory height at which a lamp used for navigation must be held. The lamp was hung several inches above the water level instead of several feet, rather than leading to an accident or error in navigation, the law hanging lamp ignited floating oil causing injury. The court still found this barred any introduction of comparative negligence). This was also found to be the case in a more recent case out of the Fifth Circuit, Roy Crook & Sons, Inc. v. Allen, 778 F.2d 1037, 1038-40 (5th Cir. 1985) (the captain of a vessel was killed when he attempted to heave an anchor and was dragged overboard; Defendant’s violation of the Coast Guard manning requirements on the vessel was enough to bar comparative negligence).

Importantly, holding the Plaintiff comparatively negligent would also fly in the face of the established proposition that a seafarer is under no duty to self-diagnose his injuries or their causes.[3] The case law is clear, the Defendant should not be permitted proffer any argument or evidence that William Skye’s negligence caused his injury or that his damages should be offset by such negligence.[4]

II.The Defendant Should not be permitted to offer any evidence or argument that Skye has committed any kind of fraud in the bringing of this lawsuit. There is no evidence in the record to sustain such allegations, and thus these argument have little to no probative value. While these arguments have only slight or no probative value, they most certainly are highly prejudicial to the Plaintiff and should be prohibited. Additionally, the Defendant failed to plead fraud in its answer to the Plaintiff’s Complaint and thus this defense was waived.

The law is well settled that fraud is a defense which must be pled and proved. See SunTrust Bank v. McCullough, 2009 WL 3837847 (M.D. Fla. 2009)(finding that a defendant asserting a defense based on fraud had to be free of negligence and had the burden of pleading and proving the defense).

One of the Defendant’s theories of the case is that William Skye sought to retire early. To do this the Defendant hypothesizes that Mr. Skye came up with a medical excuse to get out of work and then manufactured a lawsuit so that he could have a hefty bonus on top of his pension.[5] The Defendant has amply explored that theory by subpoenaing the Plaintiff’s benefits plan and deposing its pension benefits coordinator Ken Ryan.[6] The Defendant also inquired into what it felt was a “fraud” perpetrated by Mr. Skye at the deposition of Maersk’s corporate representative, Jerry Eker. Mr. Eker testified that he looked at the Plaintiff’s overtime records and found that the Plaintiff entered excessive or fraudulent overtime [D.E. 67-3, pg. 91, L: 8-11]. However when earlier pressed about reviewing overtime records Mr. Eker admitted that he did not review Plaintiff’s overtime records [D.E. 67-3, pg. 76 L: 9-25]. Rather, Mr. Eker admitted that he had only quickly “cited” a sample of overtime records which he found to be excessive. See id.

When asked if Bill Skye entered more overtime than any other chief mate in a similar position, Mr. Eker couldn’t answer because not only did he fail to review Mr. Skye’s overtime records, he never reviewed any other Chief Mates overtime records [D.E. 67-3, pgs. 92-93]. To put it simply, it is quite a stretch to accuse someone of entering fraudulent or excessive overtime if the accuser has no foundation on which to base that opinion. That kind of uninformed opinion usually leads to error as is the case herein.

Mr. Eker mentioned that the captain had to check and sign off on all overtime [D.E. 67-3, pgs. 95-96, L: 23-25-8]. When asked how the Captain could have missed this “fraudulent” entry that was so readily apparent upon a cursory review, Mr. Eker had no explanation [D.E. 67-3, pgs. 99-102]. Had Mr. Eker looked at any other Chief Mates overtime records or inquired into what the average chief mate did on a Maersk shipping vessel perhaps he would have been able to answer some of his own questions. Mr. Skye’s “fraudulent” overtime records are not fraudulent at all. Rather, it was regular practice to enter the entire weekends worth of watch standing on one day to avoid duplicative work. Further, it was standard practice to enter the entire weeks worth of administrative duties (i.e. punching in the entire crew’s overtime into Maersk’s payroll computer) in one lump sum at the end of the week. Contrary to Mr. Eker’s uninformed opinion, Bill Skye was not entering fraudulent or excessive overtime, he was simply complying with a practice as ordered of him by his Captain, Maersk’s representative on the ship. Unfortunately, Maersk never took the opportunity to ask Mr. Skye about this at his deposition and instead sought to raise it in a later deposition when Mr. Skye could not defend this claim.

The Defendant now hopes to paint the Plaintiff in a negative light in front of the jury based on inquiries into the status of his pension (which were admitted to be entirely normal and lacking in any kind of suspicion) and based on “fraudulent” overtime entries that were clearly not fraudulent at all. Rather than asking Bill Skye about his overtime entries, Maersk asked a shore side manager with no knowledge regarding that overtime, no knowledge of common practice on the ship, no knowledge of the Captains orders on the ship, and no foundation for his hollow claim of fraud. Any argument that Bill Skye was committing fraud, not working as many hours as he logged, or that Bill Skye somehow planned this suit as a fraud should thus be barred. There is no evidence to support this allegation. As such any argument on this issue will be of little to no probative value, on the other hand, such argument will be exceedingly prejudicial to the Plaintiff in the eyes of the jury.

Rule 403 provides that: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. “Rule 403 circumscribes the court’s discretion by requiring the court to weigh the probative value of the evidence against the danger of unfair prejudice from it.” Ad–Vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1464 (11th Cir.1994). In the Ad-Vantage case, the Eleventh Circuit held that the district court properly precluded cross examination of a lawyer witness regarding bar grievance procedures that had been filed against him. Id at 1464. The bar had ultimately decided not to sanction the attorney. In Ad-Vantage the court held that without sufficient evidence of any wrong doing after the grievance procedure, the evidence of grievance procedures having been initiated held little probative value, but was highly prejudicial.

The situation herein is similar but in fact militates even further towards excluding any argument or evidence regarding fraud. The Defendant approved Plaintiff’s overtime from 2000-2008 without once objecting or reprimanding Bill Skye for entering fraudulent hours or abusive overtime [D.E. 67-3, pg. 98, L: 7-11]. The Defendant never investigated any kind of problem regarding the entry of overtime with Bill Skye or the Sealand Pride. In fact, when asked whether or not there was a problem onboard the Sealand Pride regarding over time hours and budget, Maersk’s Corporate representative testified that the Sealand Pride was a great ship and had no problems [D.E. 67-3, pgs. 90-91, L: 25-5]. There is no evidence to support Maersk’s allegations of fraud.

Besides there being no evidence in the record, permitting argument and intimations of an alleged “fraud” committed by the Plaintiff is highly prejudicial to the Plaintiff. The former Fifth Circuit has found as much in a case where it refused to admit into evidence a Defendant’s tax returns which gave a strong inference that the Defendant had defrauded the government by not reporting all of his income[7]. See S. v. United States, 368 F.2d 202 (5th Cir. 1966). In deciding not to admit the tax returns the Court held that, “[a]n intimation of such an offense could only have inflamed the jury and prejudiced the defendant in their eyes.” Id at 205. Attempting to paint Mr. Skye as a defrauder will destroy his credibility with regards to all issues in the trial. The obvious implication of Maersk’s arguments is that the Plaintiff is making up his whole suit. Maersk should be prohibited from employing this tactic.

Maersk also failed to plead Fraud as a defense in its Answer [D.E. 34] to Plaintiff’s Complaint. Federal Rule of Civil Procedure 8(c)(1) specifically names the Defense of fraud as a defense that must be affirmatively stated in the Plaintiff’s answer. Id. If this Defense is not raised it is waived. See Ranger Ins. Co. v. Culberson, 454 F.2d 857, 862 (5th Cir. 1971) (“[m]oreover, any alleged fraud or misrepresentation between [Defendant] and [Plaintiff] must be raised in the pleadings, not by inference. If not so raised, the defense is waived”). Herein, the Defendant never raised fraud or fraudulent overtime entries as a defense to the Plaintiff’s claim, but rather has probed and tried to paint the Plaintiff as a defrauder in discovery. This is procedurally improper and results in testimony that does not tell the whole truth as was the case with the deposition of Mr. Eker. The Defendant should not be allowed to make this argument at trial since it failed to put the Defendant on notice of this Defense in its pleadings.

III.The Defendant has belatedly denied fault for the deficiencies onboard the Sealand Pride, for the period spanning between 2000 and mid 2004. Maersk’s basis is that United States Ship Management (USSM) controlled the Sealand Pride during that period. Firstly, there can be no apportionment of fault to a non-party in admiralty cases. Secondly, the Defendant failed to plead this defense or name USSM in its Answer to Plaintiff’s complaint. Thirdly, all of the medical evidence shows that the causes of Plaintiff’s injuries occurred during Maersk’s tenure as the owner and operator of the vessel. Lastly, as briefed in Plaintiff’s Response to Defendant’s Motion for Summary Judgment, USSM was a pawn of Maersk.

Since the deposition of Maersk’s corporate representative three days before the discovery cut-off set by this Honorable Court, Maersk has maintained the position that it exercised no control over the Sealand Pride between 2000 and mid 2004. The Defendant has raised this argument in an effort to deflect a portion of the fault for Mr. Skye’s injury to a non-party to this case, USSM. The court should preclude the Defendant from offering any evidence that USSM’s negligence played a part in causing Mr. Skye’s injuries.

The law is well settled in admiralty cases that the jury may not apportion fault to a non party. In Ebanks v. Great Lakes Dredge & Dock Co., 688 F.2d 716, 721 (11th Cir. 1982), the Eleventh Circuit restated the general maritime law principle of joint and several liability, whereby any party found to be at fault may be held responsible for the full amount of Plaintiff’s damages. Id. The Court then found reversible error where the district court allowed the jury to apportion fault to a non party defendant. Id. More recently in Groff v. Chandris, Inc., 835 F. Supp. 1408, 1409-10 (S.D. Fla. 1993), this court found that, “under existing law in this Circuit, Defendants are not permitted to have the jury determine the percentage of liability or fault of the non-party [Defendant]”.

Maersk should also be barred from shifting blame to USSM, because Maersk failed to plead in its Answer to Plaintiff’s Complaint [D.E. 34] that any other party besides the Defendant or the Plaintiff was in any way at fault for the Plaintiff’s injury. When a party fails to raise an affirmative defense in the pleadings, that party waives its right to raise the issue at trial. See American National Bank v. Federal Deposit Insurance Corp., 710 F.2d 1528, 1537 (11th Cir.1983). Herein the Plaintiff would be prejudiced by any argument that any non party defendant is at fault for the Plaintiff’s injuries. The Defendant only began to make this assertion three days before the discovery cut-off and as such the Plaintiff has had almost no opportunity to conduct discovery into this issue. As such, no argument regarding the fault of a non-party defendant should be permitted.

Even if the Defendant were allowed to offer evidence of USSM or some other non-party’s negligence, this evidence would be of little to no probative value. The medical records in this case demonstrate that the main causes of Plaintiff’s injury existed during the period of Maersk’s admitted management of the vessel between 2004 and 2008. The Plaintiff was examined by his cardiologist in 2005 and found to have suffered no physical injury. [D.E. 67-1, pg. 220-221, L: 24-25-24, and pg. 223, L: 10-20]. It is inferential that whatever caused the Plaintiff’s injury occurred between the period of 2005-2008 when Maersk admits directly owning and managing the vessel. Allowing the Defendant to shift blame to a non-party for activities conducted before 2004 will only prejudice the Plaintiff.

Lastly, attempting to shift the blame USSM would be an illusory remedy. From what the Plaintiff has been able to uncover about USSM to date, it is apparent that USSM was a pawn of Maersk created by Maersk. When questioned as to who the record owner of the Sealand Pride was 2000-2004, Maersk’s corporate representative pointed the finger at the Wilmington Trust Company. [D.E. 67-3, pg. 13, L: 15-20]. What a case law search on this entity reveals is that Wilmington Trust Company is a bank that regularly finances the purchases of vessels for Maersk. Wilmington Trust Company then retains title to the vessel, Maersk sets up a separate company to manage the vessel, and then Maersk Charters the vessel. See Fanos v. Maersk Line, Ltd., 363 F.3d 358, 360 (5th Cir. 2004).[8]

Maersk’s corporate representative also admitted that Maersk was the charterer of the Sealand Pride. [D.E. 67-3, pgs. 17-18]. The law is settled that as a bareboat charterer, Maersk was responsible for Mr. Skye’s injuries. See Wai v. Rainbow Holdings, 350 F. Supp. 2d 1019, 1029 (S.D. Fla. 2004) (“[i]t has long been recognized in the law of admiralty that for many, if not most, purposes the bareboat charterer is to be treated as the owner, generally called owner pro hac vice…. [B]arring explicit statutory exemption, the bareboat charterer is personally liable for the unseaworthiness of a chartered vessel”).

CONCLUSION[9]

At trial Maersk should not be allowed to offer any evidence or make any argument regarding the comparative negligence of Mr. Skye. Due to the hundreds of violations of federal laws and the effect of 45 U.S.C. § 53, any consideration of comparative negligence is barred. There is a rich history of case law supporting this conclusion.

Additionally, Maersk should be prohibited from making any argument or offering any evidence that Bill Skye entered excessive or fraudulent overtime hours, that he did not work the hours he logged, or that his suit was a planned fraud against Maersk. There is absolutely nothing in the record to support that argument. Further, Maersk waived this defense by failing to plead it in its answer and should thus not be allowed to raise it for the first time at trial.

Lastly, the Defendant should be prohibited from arguing or offering evidence that any non-party defendant is to blame for Mr. Skye’s injuries.

WHEREFORE, the Plaintiff respectfully requests this Honorable Court enter an order granting Plaintiff’s Motion in Limine precluding the Defendant from offering any argument or evidence that Bill Skye was comparatively negligent, that Bill Skye entered fraudulent overtime hours, that Bill Skye did not work the hours entered in his logs, or that Bill Skye’s claim is fraudulent.

LOCAL RULE 7.1 CERTIFICATE OF GOOD FAITH

The undersigned counsel certifies that he attempted to confer with counsel for Defendant in good faith regarding the relief sought herein but was unable to resolve the issues raised by this motion.

 


[1] Originally convened in 1978 and redrafted in 1995 the STCW focuses on improving safety in the maritime industry by focusing on the human element on ships. “It is widely quoted that nearly 80 % of transport accidents are due to human error. It is the human element on board ship that can either provide the skills that may prevent a disaster, or the frailty or plain lack of competence that can cause one. And, while the capability, complexity and sheer power of technology seems to be accelerating exponentially, the human element remains a basic component with all its strengths and all its weaknesses. That is why the international maritime community has now evolved from an approach, which traditionally seeks technical solutions to safety-related problems and is focusing instead on the role of human factors in maritime safety.See Standards of Training Certification and Wathckeeping website www.stcw.org accessed February 28, 2012.

[2] In commenting on amendments to the work rest hour provisions of the STCW in June of 2010, Secretary-General Mitropoulos of the International Maritime Organization stated, “I am very pleased that the Conference agreed, by consensus, an important new text on fitness for duty, which will create better conditions for seafarers to be adequately rested before they undertake their onboard duties. Fatigue has been found to be a contributory factor to accidents at sea and to ensure seafarers’ rest will play an important role in preventing casualties.” The Secretary-General’s comments make clear that these work rest hour provisions are meant to protect seafarers such as Bill Skye.

[3] Szumlicz v. Norwegian American Line, Inc., 698 F.2d 1192 (llth Cir. 1983)

[4] Further to this point, the undisputed repeated violations of the STCW trigger the application of the Pennsylvania Rule, which does two things. First, it shifts the burden of proof regarding causation from the Plaintiff to the Defendant to establish that the violation (or violations) “could not have been” a cause of the injury to Mr. Skye. The Pennsylvania, 86 U.S. (19 Wall) 125, 136 (1873) (the burden rests upon the offending party to show “not merely that [his] fault might not have been one of the causes, or that it probably was not, but that it could not have been” one of the causes”) Continental Grain Co. v. Puerto Rico Maritime Shipping Authority, 972 F. 2d 426, 436 (1st Cir. 1992). “It serves solely to shift the burden of proof on the issue of causation once a claimant has established that a vessel has violated a statute or regulation.” Id. See, e.g., Folkstone Maritime Inc. v. CSX Corp., 64 F. 3d 1037 (7th Cir. 1995); Candies Towing Co., Inc. v. M/V B&C Eserman, 673 F. 2d 91 (5th Cir. 1982); In re Seaboard Shipping Corp., 449 F. 2d 132 (2nd Cir. 1971), cert. den., 406 U.S. 949, 92 S.Ct. 2038 (1972); Waterman S.S. Corp. v. Gay Cottions, 414 F. 2d 724, 737 (9th Cir. 1969); Smith v. Mitlof, 130 F.Supp.2 578 (S.D.N.Y. 2001); MacDonald v. Kahikolu, Ltd., 581 F.3d 970 (9th Cir. Haw. 2009); Poulis-Minott vs. Smith, 388 F. 3d 354 (1st Cir. 2004).

[5] Attempting to portray the Plaintiff’s injury as fake and his lawsuit as manufactured has been widely condemned and its allowance has been found to be reversible error. See Venning v. Roe, 616 So.2d 604 (Fla. 2d DCA 1993), (closing arguments implying that the case was a “scheme” worked up by the attorneys and medical expert is improper, essentially accuse the medical expert of perjury and accuse opposing counsel of unethically committing a fraud upon the court, and are reversible error); Schubert v. Allstate Ins. Co., 60 So.2d 554 (Fla. 5th DCA 1992); Sun Supermarkets, Inc. v. Fields, 568 So.2d 480 (Fla. 3d DCA 1990); Maercks v. Birchansky, 549 So.2d 199 (Fla. 3d DCA 1989); Fla. Bar R. Prof. Conduct 4-3.4(e); Griffith v. Shamrock Village, 94 So.2d 854 (Fla. 1957), (defense counsel’s statements suggested perjury and collusion); Owens Corning Fiberglass Corp. v. Moore, 653 So.2d 409 (Fla. 3d DCA 1995), (closing arguments accusing an attorney of trickery and hiding the ball is similar to calling counsel liars and accusing counsel of perpetrating a fraud upon the court and jury and are reversible error);

[6] In the deposition of Ken Ryan, the Defendant scoured William Skye’s entire pension file in an attempt to prove that Bill Skye was planning this lawsuit long before he was injured. To that end the Defendant questioned Mr. Ryan about several inquiries from the Plaintiff seeking information about the amount of pension benefits he would be entitled to and when he would be eligible to receive that pension. After plenty of suggestive questions, Ken Ryan set the record straight and testified that it was entirely normal for people to check into the amount of pension benefits they would receive on retirement and when they would be eligible for that pension [D.E. 83-1, pgs. 41-42]. Further, Mr. Ryan testified that the number of Bill Skye’s inquiries were about average and that the pension plan processed 300-400 such requests each year. Id.

[7] The Defendant was being tried for illegal gambling and not tax evasion.

[8] “In 1982, the United States Department of Navy, Military Sealift Command (“MSC”) awarded defendant Maersk Line, Ltd. (“Maersk Line”) a contract for the construction and operation of five Maritime Preposition Ships (“MPS”). Following the award of the contract, Maersk Line created five so-called E companies1 to be designated contractors for purposes of performing the MPS contract. Under financing arrangements for the vessels, defendant Wilmington Trust Company (“WTC”) was and remains the owner trustee of each vessel. WTC bareboat chartered each vessel to one of the E companies. Each E company, in turn, time chartered each vessel to the MSC. The ships were placed in operation in 1984 and 1985.”

[9] In addition, Plaintiff has been advised of various Daubert challenges being raised by the Defendant. Plaintiff similarly requests this Honorable Court to conduct a Daubert analysis regarding Defendant’s Experts.