Whenever we sue a cruise line on behalf of an injured passenger or crewmember, one of our primary concerns is how we are going to get our client to Florida to testify at deposition and trial. This can be especially challenging when the client is badly injured, does not have the financial means to travel to Florida, or has difficulty obtaining a visa. Sometimes we face all three issues in a single case.
This struggle may help explain why most of the cruise lines require that claims against them be litigated in Federal Court in Florida. I imagine many legitimate cases are never fully litigated because of the difficulties plaintiffs who sue cruise lines face simply traveling to the courthouse.
Recently, a Disney Cruise Line crewmember was injured in the course of his shipboard employment. Jorge Delgado, a Peruvian seaman, suffered a herniated disk injury to his spine, allegedly caused by Disney’s negligence. We do not represent Mr. Delgado. His lawyers, filed a lawsuit against Disney in Federal Court in Orlando on his behalf.((JORGE DELGADO v. MAGICAL CRUISE COMPANY, LIMITED.Case No: 6:15-cv-2139-Orl-41TBS 05/30/2017))
For some reason, as the case progressed through the court system, neither party took the deposition of the other. As is common in Federal Court cases, a discovery deadline was looming. Federal court litigation is very specialized and moves much faster than lawyers might be accustomed to in other jurisdictions.
The plaintiff’s lawyers then unilaterally (without conferring with Disney’s lawyers) set the corporate representative’s deposition as well as the deposition of Mr. Delgado via SKYPE. A hearing was held, and when the court asked why the deposition was scheduled without clearing the date with Disney, the court was advised that Disney had refused to produce their calendars.
This kind of conduct–specifically the delaying tactic of refusing to produce a cruise line’s corporate representative’s availability for deposition–is not tolerated in the Federal Rule; however, it is a very common practice. In our experience, we often must ask repeatedly for available dates to take a defendant’s deposition and then, when and if we are provided these dates, they are often at or near the end of the discovery cut-offs.
The only way around this delaying tactic is to set the depositions unilaterally, which–as in this case–will result in a hearing in front of the judge. Most judges, I have found, do not like to have their limited resources depleted by uncooperative lawyers.
The Federal Rules of Civil Procedure govern discovery in maritime personal injury cases against cruise lines, and Rule 26(c) allows the Court to enter a “protective order”–when there is good cause–to protect a party from the annoyance, embarrassment, oppression, or undue burden or expense associated with discovery, such as a unilaterally scheduled deposition.((FED. R. CFED. R. CIV. P. 26(C)(1).IV. P. 26(C)(1).))
Disney relied on this rule at the hearing and also sought to compel Mr. Delgado to apply for a visa to appear in Florida for his deposition and a “possible” Rule 35 examination, which is a physical examination performed by doctors employed by Disney, ostensibly to verify a claimant’s alleged injuries.
At the hearing the court found that Disney’s motions were, for the most part, without merit. Specifically, the last-minute unilateral scheduling of Mr. Delgado’s deposition by Mr. Delgado’s own lawyers would normally be enough to stop the deposition from occurring; however, Mr. Delgado’s attorney represented that he was unable to obtain a visa, a difficulty that would most likely render him unable to be physically present in the courtroom for trial, thereby making his testimony by SKYPE essential. Since Disney never attempted to take his deposition in a timely fashion, Mr. Delgado could not be faulted for setting it himself.
Depositions by remote means like SKYPE are not unusual; in fact, our maritime accident lawyers typically take several depositions a week remotely. The court found that since Mr. Delgado is an unemployed seaman with minimal financial means, and because travel for this purpose exerts a great economic hardship, taking his deposition via SKYPE did not pose such a burden for Disney under the circumstances.((The court also found that Mr. Delgado’s presence in Florida was not required for a “possible” Rule 35 examination since Disney had filed no motion seeking such an examination and since he had been treated so far entirely by Disney doctors. ))
The court also refused to allow Disney’s corporate representative’s unilateral deposition to go forward since it was set “in the waning days of discovery,” and accordingly, the court found no reason to extend the discovery deadline to accommodate Mr. Delgado’s failure to secure the defendant’s timely deposition.
Filing a Cruise Ship Injury Claim
This case represents the gamesmanship often played in cruise line litigation, by both parties. It also highlights the importance of working diligently to prepare cases quickly for trial in Federal Court, given the often inflexible deadlines imposed by the court. For this reason, we strongly recommend if you are hurt–while on a cruise, in port, participating in an excursion, or on a gangway or tender boat–that you consult with an experienced maritime attorney as soon as possible.
Our Miami personal injury law firm has over 30 years of combined legal experience representing passengers and crew members from around the world in slip and fall, trip and fall, sexual assault, and other cases against Carnival, Royal Caribbean, Celebrity, Norwegian, Holland America, MSC, Azamara, Princess, Disney, Costa, Regent Seven Seas, Oceania, and the other major cruise lines.
If you have been hurt on a cruise, call us today, toll-free at 1-866-597-4529, locally at 305-441-0440, or reach us by email at [email protected] or SKYPE and let our years of experience assist you in holding the cruise line accountable for your injuries, medical expenses, lost wages, and pain and suffering. Contact us today–we are ready to help you.
