Schleife v. Royal Caribbean Cruises, Ltd.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-22776-O’SULLIVAN

[CONSENT]

RICHARD JOHN SCHLEIFE,

Plaintiff,

v.

ROYAL CARIBBEAN CRUISES, LTD.

Defendant.

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OMNIBUS ORDER ON MOTIONS IN LIMINE

THIS MATTER is before the Court on the Defendant’s Omnibus Motion in Limine

(DE# 45, 11/16/20) and the Plaintiff's Motion in Limine to Preclude Reference to Plaintiff’s

Consumption of Alcoholic Beverages (DE# 46, 11/16/20).

INTRODUCTION

The parties filed their respective motions in limine on November 16, 2020. See

Defendant’s Omnibus Motion in Limine (DE# 45, 11/16/20) (hereinafter “Defendant’s Motion”);

Plaintiff's Motion in Limine to Preclude Reference to Plaintiff’s Consumption of Alcoholic

Beverages (DE# 46, 11/16/20) (hereinafter “Plaintiff’s Motion”). On November 30, 2020, the

defendant filed its response in opposition to the Plaintiff’s Motion. See Response to Plaintiff’s

Motion in Limine (DE# 56, 11/30/20) (hereinafter “Defendant’s Response”). On March 26,

2021, the plaintiff filed his response in opposition to the Defendant’s Motion and his reply in

support of his own motion. See Plaintiff’s Response to Defendant’s Motion in Limine (DE# 67,

3/26/21) (hereinafter “Plaintiff’s Response”); Plaintiff’s Reply to Defendant’s Response to

Plaintiff’s Motion in Limine (DE# 68, 3/26/21) (hereinafter “Plaintiff’s Reply”). The defendant

filed its reply in support of its motion on April 5, 2021. See Defendant’s Reply in Support of Its

Omnibus Motion in Limine (DE# 69, 4/5/21).

This matter is ripe for adjudication.

FACTUAL BACKGROUND1

The plaintiff was a passenger on board a cruise ship owned and operated by the

defendant. See Plaintiff’s Complaint for Damages and Demand for Jury Trial (DE# 1 at ¶¶ 10,

24, 7/5/19) (hereinafter “Complaint”). “On September 30, 2018, around 3pm, Plaintiff was

walking to his cabin when he slipped and fell on the pool deck. The deck surface was wet, and

unreasonably slippery. He landed on the deck chairs, hitting his face.” Id. at ¶ 24. The plaintiff

was initially treated by the ship’s medical staff. Id. at ¶ 25. The plaintiff made multiple requests

to be airlifted to a hospital in Miami, Florida. Id. at ¶¶ 27-31. The defendant denied these

requests. Id. The following day, at approximately 3:00 AM, the plaintiff was transported to a

hospital in Havana, Cuba. Id. at ¶ 32. The plaintiff did not receive medical treatment in Havana

until approximately 9:00 AM and was told that he needed surgery. Id. at ¶ 33. The plaintiff

refused to have surgery in Havana because “[t]he hospital was dirty, looked unsanitary, and the

doctors did not appear competent to treat Plaintiff.” Id. At approximately 7:00 PM that evening,

the plaintiff flew to the United States. Id. at ¶ 35. The plaintiff underwent emergency eye surgery

in Miami. Id. “Plaintiff eventually los[t] the vision in his eye because of the time delay in

promptly starting appropriate treatment . . . . Plaintiff suffered extreme physical pain and mental

1 The facts summarized herein are from the Complaint and are included only to provide context.

The Court makes no factual findings in this Order.

pain and anguish from the delay in his treatment up to the time he received information about

losing the sight in his eye . . . .” Id.

STANDARD OF REVIEW

Courts have broad discretion in determining the admissibility of evidence. Equity

Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1243 (11th Cir.

2009). “Motions in limine are generally disfavored” and “[e]vidence is properly excluded only if

the evidence is clearly inadmissible for any purpose.” Baptista v. Carnival Corp., No. 1:17-CV-

22115-KMM, 2018 WL 1226041, at *1 (S.D. Fla. Mar. 5, 2018) (citations and internal quotation

marks omitted). “The real purpose of a Motion [i]n Limine is to give the trial judge notice of the

movant’s position so as to avoid the introduction of damaging evidence which may irretrievably

effect the fairness of the trial.” Stewart v. Hooters of Am., Inc., No. 8:04-CV-40-T-17-MAP,

2007 WL 1752843, at *1 (M.D. Fla. June 18, 2007) (citing Luce v. United States, 469 U.S. 38,

41 (1984)).

ANALYSIS

I. Defendant’s Omnibus Motion in Limine

The defendant seeks to exclude the following evidence: (1) prior accidents or incidents; (2)

the plaintiff’s testimony of hearsay statements made by his doctors regarding his medical diagnosis

and treatment and (3) expert testimony by the plaintiff’s treating physicians.

A. Evidence of Prior Accidents or Incidents

The defendant seeks to exclude evidence of prior slip and fall incidents. See Defendant’s

Motion at 2-4. During discovery, the defendant produced a list of 21 prior slip and fall incidents

which occurred on the pool deck on the subject ship, in the three years preceding the plaintiff’s

incident. See Defendant’s Motion at 2; List of Prior Incidents (DE# 67-4, 3/26/21). The plaintiff

seeks to introduce these prior slip and fall incidents at trial as substantially similar incidents. See

Plaintiff’s Response at 4-6. The defendant argues that these prior slip and fall incidents are not

admissible because the incidents do not meet the substantial similarity standard of admissibility.

Defendant’s Reply at 3.

The Eleventh Circuit has held that “[e]vidence of similar occurrences may be offered to

show a defendant’s notice of a particular defect or danger, the magnitude of the defect or danger

involved, the defendant’s ability to correct a known defect, the lack of safety for intended uses,

the strength of a product, the standard of care, and causation.” Hessen for Use & Benefit of

Allstate Ins. Co. v. Jaguar Cars, Inc., 915 F.2d 641, 650 (11th Cir. 1990). For prior incidents to

be admissible, the Eleventh Circuit requires that: (1) “conditions substantially similar to the

occurrence in question must have caused the prior accident” and (2) “the prior accident must not

have occurred too remote in time.” Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir.

1998). “‘Substantial similarity’ does not require identical circumstances and allows for some

play in the joints depending on the scenario presented and the desired use of the evidence.”

Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1287 (11th Cir. 2015). The purpose of this

standard is to “protect[] parties against the admission of unfairly prejudicial evidence, evidence

which, because it is not substantially similar to the accident or incident at issue, is apt to confuse

or mislead the jury.” Tran v. Toyota Motor Corp., 420 F.3d 1310, 1316 (11th Cir. 2005).

“Plaintiff bears the burden of proof to establish that prior incidents occurred under

substantially similar conditions to those of Plaintiff's incident.” Marshall v. Royal Caribbean

Cruises Ltd., No. 0:16-CV-21140-KMM, 2017 WL 5308902, at *9 (S.D. Fla. Jan. 6, 2017), aff'd,

706 F. App’x 620 (11th Cir. 2017) (citing Hessen, 915 F.2d at 649-50). Here, the plaintiff states

that he fell in an area of “the pool deck [that] was very wet” and that the defendant had allowed

“large accumulations of water around the pool deck that the Defendant had not addressed prior to

[the plaintiff’s] fall.” Plaintiff’s Response at 2. “Plaintiff alleges that the accumulation of large

amounts of water on the pool deck that was permitted to stay there without being addressed by

the Defendant violated Defendant’s own policies against allowing accumulation of water to

remain on the deck surface, and posed a safety hazard to the passengers walking on the pool

deck.” Id. The plaintiff also intends to present expert testimony that the Bolidt deck material

used on the surface of “the pool deck is inappropriate because it . . . becomes unreasonably

slippery when wet.” Id. at 5. The plaintiff argues that the 21 prior slip and fall incidents are

substantially similar to the instant case “because they all involve a slip/fall incident on the same

Bolidt deck surface that the Plaintiff in this case slipped and fell on.” Id.

The Court finds that many of the slip and fall incidents included in the List of Prior

Incidents (DE# 67-4, 3/26/21) are not substantially similar to this case. As the defendant notes,

“[t]he subject pool deck is a massive area involving many smaller areas where passengers

congregate.” Motion at 3. Additionally, some of the slip and fall incidents included in the list

involve factual scenarios which were different from the instant case. As the defendant notes:

Some of the produced prior incidents are not substantially similar because the

incidents occurred at a different area of the deck and involved a different source

of liquid on the floor. Nancy Croshaw slipped by the shower area in which any

water on the floor would be coming from the shower rather than the pool water.

Similar to Ms. Croshaw, Joan Del Hierro slipped on water that was leaking from a

water dispenser on another part of the deck and Holly Gibbs slipped on a puddle

that was formed by somebody spilling a drink on the floor. Lily Khodara slipped

on some ice cream and Justine Lowry slipped while passing the ice cream

machine.

Defendant’s Motion at 3.

To be admissible, the plaintiff must show that the conditions of the prior incidents were

substantially similar. See Jones, 861 F.2d at 661-62. The plaintiff must show that the proffered

incidents involved slip and falls caused by the accumulation of pool water on the pool deck’s

surface. The plaintiff has not met his burden of showing substantial similarity because there is

simply not enough information about each prior incident in the record for this Court to make a

determination.

The defendant’s request to exclude evidence of prior incidents is GRANTED in part.

The plaintiff has not satisfied his burden of showing substantial similarity, other than the

presence of a pool deck. The plaintiff has failed to show that the following prior incidents

included on the List of Prior Incidents (DE# 67-4, 3/26/21) are substantially similar to the slip

and fall conditions present in this case: 2, 3, 4, 5, 8, 9, 10, 13, 16, 17 and 19. With respect to the

remaining prior incidents—1, 6, 7, 11, 12, 14, 15, 18, 20 and 21—the plaintiff will need to

satisfy his burden of showing substantial similarity before these incidents are admitted as

evidence at trial.

B. Plaintiff’s Testimony of Hearsay Statements Made by Plaintiff’s Doctors

Regarding Plaintiff’s Medical Diagnosis and Treatment

The defendant seeks to exclude testimony from the plaintiff about hearsay statements

made by the plaintiff’s doctors regarding the plaintiff’s medical diagnosis and treatment. See

Defendant’s Motion at 4-5. The defendant argues that any testimony at trial by the plaintiff

relating to statements made by his doctors regarding the plaintiff’s diagnosis, treatment or extent

of the plaintiff’s injuries should be excluded as inadmissible hearsay. Id.

The plaintiff maintains that the defendant’s concerns are merely “anticipatory” and the

defendant is operating on an expectation that the plaintiff will be asked questions which would

elicit inadmissible hearsay. Plaintiff’s Response at 6.

Hearsay statements are inadmissible unless the statements fall under an applicable

hearsay exception. Fed. R. Evid. 803. Generally, a witness may not testify to a doctor’s

statements on the witness’s diagnosis if those statements are offered to prove the truth of the

matter asserted, because the doctor’s statements are considered “pure hearsay.” See United States

v. Buck, 70 F.2d 1007, 1007 (5th Cir. 1934).2 On the other hand, testimony offered to prove a

witness’s then-existing state of mind is considered admissible hearsay. Fed. R. Evid. 803(3); see

United States v. Harris, 733 F.2d 994 (2d Cir. 1984). Thus, if the witness’s testimony of his

doctors’ statements is being offered to prove the witness’s then-existing state of mind, the

testimony may be admitted.

In the instant case, the plaintiff has asserted a claim for mental anguish. See Complaint at

¶¶ 35, 46, 72, 85. Any information given to the plaintiff by his doctors regarding his loss of

vision is admissible under Rule 803(3) to prove the plaintiff’s then state of mind and how it

affected his resulting action or inaction.

The defendant’s request to exclude the plaintiff’s own testimony of hearsay statements

made by his doctors regarding medical diagnosis and treatment is DENIED. The plaintiff may

testify as to his doctors’ statements so long as the statements are offered to prove the plaintiff’s

state of mind.

C. Expert Testimony Offered by Plaintiff’s Treating Doctors

The defendant also seeks to exclude the plaintiff’s treating doctors as expert witnesses at

trial. See Defendant’s Motion at 5-7. The plaintiff maintains that the treating doctors who will

testify as experts at trial were properly disclosed under Rule 26 of the Federal Rules of Civil

Procedure and that the defendant did not object to these witnesses until the defendant filed the

instant Motion. See Plaintiff’s Response at 8-9.

2 The Eleventh Circuit in Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en

banc) adopted as precedent the decisions of the former Fifth Circuit rendered prior to October 1,

1981.

Under Rule 26, “a party must disclose to the other parties the identity of any witness it

may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R.

Civ. P. 26(a)(2)(A). Additionally, “if the witness is one retained or specially employed to provide

expert testimony in the case or one whose duties as the party’s employee regularly involve

giving expert testimony,” the party must provide a report containing a summary of the facts and

opinions to which the witness will testify. Fed. R. Civ. P. 26(a)(2)(B).

“A treating physician . . . can be deposed or called to testify at trial without any

requirement for a written report.” RLI Ins. Co. v. Alfonso, No. 19-60432-CIV, 2021 WL 430720,

at *9 (S.D. Fla. Feb. 8, 2021) (citing Fed. R. Civ. P. 26(a)(2)(B) advisory committee’s notes

(1993)). However, “treating physicians offering opinions beyond those arising from treatment

are experts from whom full Rule 26(a)(2)(B) reports are required.” Id. Notwithstanding this rule,

a party may present the expert’s testimony at trial even if the expert failed to provide a Rule

26(a)(2)(B) report if “the failure was substantially justified or is harmless.” Id. at *9; Fed. R. Civ.

P. 37(c)(1).

Here, the plaintiff provided the defendant with expert witness disclosures on March 6,

2020. See Plaintiff’s Expert Witness Disclosures (DE# 67-6, 3/26/21). The plaintiff’s expert

witness disclosures identified Dr. Rebecca Bartow and Dr. Scott Paulman as expert witnesses

who “will provide opinions as to causation, including opinions as to whether the Plaintiff should

have been medically evacuated for treatment because he presented with a medical emergency,

and will provide opinions whether the failure to evacuate the Plaintiff to a specialist caused any

of the injuries.” Id. at 1-2. The plaintiff did not file any report under Rule 26(a)(2)(B). However,

both treating physicians participated in “two extremely lengthy depositions” where the defendant

was able to question these experts. Plaintiff’s Response at 9.

Although the plaintiff did not fully comply with Rule 26, there is no prejudice to the

defendant because the defendant was fully aware that these doctors will be testifying at trial as

experts and had the opportunity to depose them. Moreover, and as discussed below, the plaintiff

will be provided with an opportunity to produce the Rule 26(a)(2)(B) reports. See In re Denture

Cream Prod. Liab. Litig., No. 09-2051-MD, 2012 WL 5199597, at *6 (S.D. Fla. Oct. 22, 2012)

(stating that because the defendant was not prejudiced in any way, the plaintiff’s failure to

provide a Rule 26(a)(2)(B) report did not preclude the plaintiff from introducing expert

testimony at trial so long as the plaintiff submitted the report in a reasonable time).

Additionally, the Court notes that the defendant waited until the filing of the instant

Motion to raise plaintiff’s failure to provide a Rule 26(a)(2)(B) report. In Kroll v. Carnival Corp.,

Magistrate Judge Goodman did not strike the expert testimony because—although the plaintiff’s

efforts to comply with her disclosure obligations were deficient—the defendant improperly

withheld its objection until after the discovery deadline. No. 19-23017-CIV, 2020 WL 4926423,

at *6 (S.D. Fla. Aug. 20, 2020). Similarly here, the defendant was aware on March 6, 2020 of the

treating doctors’ designations as expert witnesses to be used at trial. See Plaintiff’s Expert

Witness Disclosures (DE# 67-6, 3/26/21). As noted above, no objection was made to the experts’

designations or to the plaintiff’s failure to produce a Rule 26(a)(2)(B report until the filing of the

defendant’s motion in limine. As in Kroll, the defendant here withheld its objection until it filed

a motion seeking to exclude the expert testimony.

The defendant’s motion to exclude Dr. Bartow’s and Dr. Paulman’s expert testimony as

to causation and/or prognosis is DENIED without prejudice. Within ten (10) days of the date

of this Order, the plaintiff shall provide Rule 26(a)(2)(B) reports for Dr. Bartow and Dr. Paulman

who will testify as experts and fact witnesses. Should the defendant determine it needs to take

additional depositions of Dr. Bartow and Dr. Paulman based on their expert reports, the

defendant shall file a motion for additional limited depositions of these treating doctors in their

expert roles and shall identify discrete areas of inquiry.

II. Plaintiff’s Motion in Limine to Exclude Evidence of Alcohol Consumption

The plaintiff seeks to exclude “any testimony, remarks, comments, references, or

arguments” related to the plaintiff’s alcohol consumption prior to the incident. See Plaintiff’s

Motion at 3. The defendant argues that evidence of the plaintiff’s alcohol consumption is

relevant and should not be excluded because the defendant has raised the affirmative defense of

comparative negligence. See Defendant’s Response at 2-3 (stating that “[i]t is Royal Caribbean’s

position that Plaintiff’s consumption of alcohol, particularly with his medications and the

September Caribbean heat, contributed to his fall”).

On the day of the incident, there was evidence that the plaintiff consumed at least one

alcoholic beverage while ashore in Key West, Florida. Defendant’s Response at 2.3 The plaintiff

consumed two additional alcohol beverages, but did not finish one of them, “[w]hile onboard the

cruise ship in the hours leading up to the slip and fall on the pool deck.” Plaintiff’s Reply at 2.

The plaintiff also consumed “a little wine” after his accident. Id. Additionally, the ship’s doctor

stated the plaintiff “had the smell of alcohol on his breath.” Id.

Under Rule 401, “evidence is relevant if it has a tendency to make a fact more or less

probable than it would be without the evidence; and the fact is of consequence in determining the

action.” Fed. R. Evid. 401. The Court may exclude relevant evidence only if “[the] probative

value is substantially outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury[.]” Fed. R. Evid. 403. Because Rule 403 allows the

3 The defendant cites to exhibits which were not attached to Defendant’s Response.

court to exclude probative evidence, “Rule 403 is an extraordinary remedy which should be used

sparingly.” Milbrath v. NCL Bahamas, Ltd., No. 17-CV-22071-UU, 2018 WL 2021339, at *2

(S.D. Fla. Feb. 28, 2018) (quoting United States v. King, 713 F.2d 627, 631 (11th Cir. 1983)).

In Milbrath, the court denied the plaintiff’s motion in limine to exclude evidence of the

plaintiff’s alcohol consumption because the evidence was relevant to the issue of whether the

alcohol consumption may have contributed to the plaintiff’s injury. 2018 WL 2021339, at *2.

The Court found that although evidence of the plaintiff’s alcohol consumption was prejudicial,

“[the prejudicial value] [was] outweighed by its probative value as to intoxication, which [was]

probative of Plaintiff's exercise of reasonable care, and contributory negligence; essential issues

for the jury to decide in a negligence action.” Id. The Court reasoned that “[i]ntoxication [was]

clearly probative in determining Plaintiff’s exercise of reasonable care and contributory

negligence, which [were] of consequence in determining [the] negligence action.” Id. at *1.

Similarly here, the defendant has asserted the affirmative defense of comparative negligence.

Whether the plaintiff’s alcohol consumption was a factor in the accident is a question for the jury

to decide.

Without citing case law, the plaintiff argues that “any evidence of alcohol consumption is

irrelevant, and any potential relevancy is outweighed by . . . undue prejudice because the

evidence will merely be used to create in the minds of the jury a scenario not supported by the

evidence, that Plaintiff slipped and fell because he was intoxicated.” Plaintiff’s Reply at 2. The

Court is not persuaded that evidence that the plaintiff consumed alcohol while on vacation would

result in unfair prejudice. See Stewart-Patterson v. Celebrity Cruises, Inc., 12-20902-CIV, 2012

WL 6061750, at *4 (S.D. Fla. Dec. 6, 2012) (noting that because people commonly drink alcohol

on cruise ships, the court did not see any unfair prejudice which would outweigh the probative

value of the evidence). Moreover, because the defendant has asserted the affirmative defense of

comparative negligence, it is up to the jury to determine how much weight, if any, to give to the

evidence of the plaintiff’s alcohol consumption. See generally Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986) (noting that it is the role of the jury to make credibility determinations,

weigh evidence, and draw inferences from the facts).

The plaintiff’s Motion in Limine to exclude any testimony, remarks, comments,

references, or arguments related to the plaintiff’s alcohol consumption is DENIED. Any

prejudice towards the plaintiff is outweighed by the probative value of this evidence. It is up to

the jury to decide whether alcohol consumption contributed to the plaintiff’s injury.

CONCLUSION

Based on the foregoing, it is

ORDERED AND ADJUDGED that the Defendant’s Omnibus Motion in Limine (DE#

45, 11/16/2020) is GRANTED IN PART and DENIED IN PART without prejudice as

follows:

(a.) the defendant’s request to exclude evidence of prior incidents is GRANTED in

part and DENIED in part. The plaintiff has failed to show that the following prior incidents

included on the List of Prior Incidents (DE# 67-4, 3/26/21) are substantially similar to the slip

and fall conditions present in this case: 2, 3, 4, 5, 8, 9, 10, 13, 16, 17 and 19. With respect to the

remaining prior incidents—1, 6, 7, 11, 12, 14, 15, 18, 20 and 21—the plaintiff must first satisfy

his burden of showing substantial similarity between the prior incident and the plaintiff’s fall

before introducing any prior incident at trial;

(b.) the defendant’s request to exclude the plaintiff’s testimony concerning hearsay

statements made by the plaintiff’s doctors regarding the plaintiff’s medical diagnosis and

treatment is DENIED. The plaintiff may testify as to his doctors’ statements so long as these

statements are introduced to prove the plaintiff's then-existing state of mind and

(c.) the defendant’s request to exclude Dr. Bartow’s and Dr. Paulman’s expert

testimony as to causation and/or prognosis is DENIED without prejudice. Within ten (10) days

of the date of this order, the plaintiff shall provide Rule 26(a)(2)(B) reports for Dr. Bartow and

Dr. Paulman who will testify as experts and fact witnesses. Should the defendant determine it

needs to take additional depositions of Dr. Bartow and Dr. Paulman based on their expert reports,

the defendant shall file a motion for additional limited depositions of the treating doctors in their

expert roles and shall identify discrete areas of inquiry. It 1s further

ORDERED AND ADJUDGED that the Plaintiff's Motion in Limine to Preclude

Reference to Plaintiff's Consumption of Alcoholic Beverages (DE# 46, 11/16/20) is DENIED.

DONE AND ORDERED in Chambers, Miami, Florida, this 30th day of April, 2021.

JOHN J-O?SULLIVAN

CHIEF TED STATES MAGISTRATE JUDGE

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