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Incardone v. Royal Caribbean Cruises, Ltd.

United States District Court, S.D. Florida, Miami Division

June 28, 2019

DONNA INCARDONE, et al., Plaintiffs,



         Plaintiffs filed a motion in limine to prevent Defendant Royal Caribbean Cruises, Ltd. (“RCCL”) from introducing evidence and presenting argument about its affirmative defenses. [ECF No. 274');">274]. They say that RCCL's thirteen affirmative defenses are “without supportive facts and fail to meet pleading standards.” [ECF No. 274');">274, p. 2');">p. 2');">p. 2');">p. 2]. Plaintiffs argue that RCCL has been “hiding the ball” and has “prevented [them] from conducting discovery and otherwise preparing responses to the affirmative defenses.” Id. They brand RCCL's behavior as “trial by ambush.” Id.

         RCCL opposes the motion in limine and argues that it is actually “an improperly disguised motion for summary judgment” which Plaintiffs failed to file months earlier, when the deadline to do so expired. [ECF No. 296');">296, p. 1]. RCCL says its affirmative defenses are properly pled and takes the legal position that affirmative defenses need not meet the heightened pleading standard used to assess complaints.

         RCCL contends in its succinct three-page opposition that Plaintiffs are on notice of the defenses which it intends to assert at trial and similarly argues that Plaintiffs have learned about the affirmative defenses through discovery. RCCL did not, however, explain how Plaintiffs allegedly learned about the defenses in discovery and did not submit any exhibits (such as deposition testimony or documents it produced or received) to illustrate the specific way in which Plaintiffs supposedly learned the factual support and substance supposedly underlying the defenses.

         U.S. District Judge Jose E. Martinez referred Plaintiffs' motion in limine to the Undersigned. [ECF No. 376]. For the reasons outlined in greater detail below, the Undersigned respectfully recommends that Judge Martinez grant in part in and deny in part Plaintiffs' motion in limine. Given this ruling, the omnibus hearing scheduled for July 9, 2019 [ECF No. 380] will not address this motion in limine and the parties should not submit any under-seal questions (if they choose to submit any at all, as authorized by ECF No. 369) about this motion in limine.

         I. Background

         Plaintiffs, a group of autistic children and their families, seek compensation for alleged psychological injuries they sustained when their cruise on RCCL's Anthem of the Seas encountered a winter storm with hurricane-force winds. [ECF Nos. 243, p. 1; 247, p.1]. Plaintiffs allege that RCCL negligently and recklessly sailed the Anthem of the Seas into the path of the storm even though it received severe weather warnings prior to embarking and knew its propulsion system would experience difficulties in severe weather. [ECF No. 55, ¶¶ 14-16, 27]. RCCL argues that the storm was an unexpected Act of God and that Plaintiffs cannot recover under maritime law for the stand-alone emotional distress damages they are claiming. [ECF No. 241, p. 2');">p. 2');">p. 2');">p. 2].

         RCCL filed an Answer and Affirmative Defenses to Plaintiffs' Second Amended Complaint. [ECF No. 61]. In its Answer, RCCL raised sixteen “Affirmative Defenses.” [ECF No. 61, ¶¶ 41-56]. According to Plaintiffs, RCCL failed to provide facts necessary to support its alleged Affirmative Defenses. Plaintiffs propounded interrogatories seeking to discover what facts Defendant intended to rely upon in support of the Affirmative Defenses. [ECF Nos. 61, ¶¶ 42, 43, 45, 46, 47, 53, 54, 55, 56; 274');">274-1].

         RCCL responded to Plaintiffs' interrogatories, objecting to the request for supportive facts. [ECF No. 274');">274-1]. In a May 5, 2017 hearing, the Undersigned agreed with Plaintiffs that factual support was necessary to sustain the affirmative defenses. [ECF No. 85, pp. 2');">p. 2');">p. 2');">p. 24-28]. The Undersigned required RCCL to supplement the interrogatory responses by stating (if accurate) that it did not at the time have facts to support its Affirmative Defenses but intended to develop them in discovery. The Undersigned also noted that Plaintiffs could move to strike the Affirmative Defenses if no supportive facts were ultimately submitted by Defendant. I also noted that RCCL might withdraw one or more affirmative defenses if it did not develop the evidentiary support.

         Specifically, I explained that RCCL “need[s] to either have facts to support it [i.e., an affirmative defense] or you don't. So Mr. Ostrow [Plaintiffs' counsel] is entitled to learn the facts.” [ECF No. 85, p. 2');">p. 2');">p. 2');">p. 27 (emphasis added)]. In a post-hearing administrative order, I ordered RCCL to provide Plaintiffs with an under-oath response “indicating whether it has any facts to support each affirmative defense referenced in Plaintiffs' Second Interrogatories.” [ECF No. 69, p. 2');">p. 2');">p. 2');">p. 2].

         On September 20, 2017, Plaintiffs' counsel emailed the Defendant, again seeking supportive facts for the Affirmative Defenses. [ECF No. 274');">274-2]. RCCL failed to respond with any supportive facts. Plaintiffs filed a Motion to Strike the Affirmative Defenses on December 7, 2017 and a renewed motion on December 26, 2017. [ECF Nos. 159; 165]. On December 21, 2017, RCCL filed a Response to Plaintiffs' initial motion and an Amended Answer to the Complaint. [ECF Nos. 163; 164]. The Amended Answer (to the Second Amended Complaint, ECF No. 55) is identical to the original Answer, except RCCL dropped three of the Affirmative Defenses. [ECF No. 164].

         RCCL's Affirmative Defenses to the Second Amended Complaint are found in paragraphs 41 through 53 of its Answer, and the Undersigned quotes them verbatim:


         41. The Plaintiff(s) claims are barred in whole or in part because the Complaint fails to state a claim upon which relief can be granted.

         42. The Plaintiff(s) own negligence was the sole proximate cause of his/her injuries and damages and, accordingly, the Plaintiff(s) claims are barred as a matter of law.

         43. The Plaintiff(s) own negligence contributed to the subject accident and his/her injuries and damages and, accordingly, any award to the Plaintiff(s) must be reduced in proportion to his/her own comparative negligence.

         44. Defendant had no notice or knowledge of the alleged unreasonably dangerous conditions.

         45. Defendant fully discharged any duty to Plaintiff(s) by warning him/her of anticipated heavy weather.

         46. The Plaintiff(s) failed to seek timely and/or appropriate medical treatment for his/her alleged injuries, and/or failed to follow the advice of his/her doctors which failure caused/exacerbated his/her alleged injuries.

         47. The Plaintiff(s) have failed to mitigate his/her damages.

         48. The Plaintiff(s) injuries and/or damages are the result of the aggravation of (a) prior injury(ies) and/or condition(s).

         49. Prior to the alleged incident, Defendant did not have actual or constructive notice of the severity of weather encountered.

         50. To the extent applicable, any award of damages to the Plaintiff(s) must be reduced for any collateral source payments and payments made and received from Defendant.

         51. The alleged injuries and damages, if any, of the Plaintiff(s) and the derivative injury and damages, if any, of the Plaintiff(s) were proximately caused by a pre-existing condition or injury and/or by actions of others or events separate, distinct, unrelated and remote to any action or inaction of this Defendant, which said separate distinct unrelated actions of others or events or accidents were the sole proximate cause of Plaintiff(s) alleged injuries and damages, if any, for which Defendant cannot be liable.

         52. Pursuant to paragrap. 11(a) of the passenger ticket contract (an exemplar of which is attached hereto as Exhibit “1”), Defendant is not be liable for an Act of God or peril of the sea or any other cause beyond Defendant's reasonable control or any act not shown to be caused by Defendant's negligence.

         53. The risk creating condition(s) which Plaintiff(s) allege caused his/her injuries was open and obvious and should have been observed by the Plaintiff(s) through the ordinary use of his/her senses.

[ECF No. 164, pp. 3-5].

         Judge Martinez referred the motion in limine to the Undersigned. [ECF No. 376]. In a later order, Judge Martinez noted that his May 24, 2018 order [ECF No. 220] revising the trial scheduling order established a December 3, 2018 deadline for filing “all pretrial motions and memoranda of law, such as motions in limine.” [ECF No. 383]. Plaintiffs' motion in limine concerning the affirmative defenses was filed on December 3, 2018; so, it is timely.

         RCCL's December 17, 2018 response in opposition to Plaintiffs' motion in limine consists of only three pages. [ECF No. 300]. No. part of the response explains how RCCL provided discovery about the facts supporting its affirmative defenses in the two and a half years since the Undersigned ruled that Plaintiffs are entitled to learn the facts supporting the affirmative defenses. For example, a purely hypothetical illustration of the type of response RCCL might have asserted but did not will demonstrate the significance of what was omitted. The opposition response did not contend that its second affirmative defense -- that Plaintiffs were themselves negligent -- is factually supported through an RCCL witness who testified that the ship repeatedly broadcast instructions that all passengers should return to their cabins but that specific Plaintiffs ignored that warning and ventured out onto the deck anyway during the hurricane-force winds.

         II. Applicable Legal ...

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