United States District Court, S.D. Florida, Miami Division
REPORT AND RECOMMENDATIONS ON PLAINTIFFS' MOTION
IN LIMINE TO PRECLUDE AFFIRMATIVE DEFENSE EVIDENCE AND
JONATHAN GOODMAN UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
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].
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].
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
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].
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].
Affirmative Defenses to the Second Amended Complaint are
found in paragraphs 41 through 53 of its Answer, and the
Undersigned quotes them verbatim:
Plaintiff(s) claims are barred in whole or in part because
the Complaint fails to state a claim upon which relief can be
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.
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.
Defendant had no notice or knowledge of the alleged
unreasonably dangerous conditions.
Defendant fully discharged any duty to Plaintiff(s) by
warning him/her of anticipated heavy weather.
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.
Plaintiff(s) have failed to mitigate his/her damages.
Plaintiff(s) injuries and/or damages are the result of the
aggravation of (a) prior injury(ies) and/or condition(s).
Prior to the alleged incident, Defendant did not have actual
or constructive notice of the severity of weather
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.
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.
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.
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
[ECF No. 164, pp. 3-5].
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.
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.
Applicable Legal ...