Mclendon v. Carnival Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-24939-BLOOM/Otazo-Reyes

JENNIFER MCLENDON,

as Personal Representative of

the Estate of James Mclendon,

Plaintiff,

v.

CARNIVAL CORPORATION,

a Panamanian Corporation

doing business as

Carnival Cruise Line,

Defendant.

______________________________________/

ORDER ON PLAINTIFF’S OBJECTIONS TO THE HONORABLE MAGISTRATE

JUDGE’S POST ADMINISTRATIVE ORDER

THIS CAUSE is before the Court upon Plaintiff’s Objections to Magistrate Judge’s Post

Administrative Order, ECF No. [34] (“Objections”). Defendant filed a Response in Opposition to

Plaintiff’s Objections, ECF No. [35] (“Response”).1 The Court has carefully reviewed the

Magistrate Judge’s Order, ECF No. [33] (“Order”), the Objections and Response, the record in

this case, the applicable law, and is otherwise fully advised. For the reasons that follow, the

Objections are overruled.

I. BACKGROUND

Plaintiff has asserted claims against Defendant arising from the negligence of its medical

personnel on board the Carnival Sensation, which resulted in Plaintiff’s husband’s death. See ECF

No. [7] (“Amended Complaint”). Plaintiff alleges, in pertinent part, that her husband (“Decedent”)

1 Plaintiff filed a Reply, ECF No. [36], which the Court ordered stricken as improper, ECF No. [37].

was allergic to penicillin but was administered a shot known to be dangerous to those with

penicillin allergies and was not otherwise properly treated for his symptoms. Id. ¶¶ 9, 11-12. On

June 30, 2021, the parties appeared for a telephonic discovery hearing before Magistrate Judge

Otazo-Reyes, ECF No. [32]. At issue during the hearing, relevant to the Objections, were

Plaintiff’s Interrogatory #10 and #11 regarding similar prior incidents.

Specifically, Plaintiff requested that Defendant identify for the five (5) years prior to the

date of Plaintiff’s incident, and one (1) year subsequent,

all incidents, complaints of incidents, records of incidents, or recollections of

incidents similar to Plaintiff’s incident, i.e. passengers, crew members or other

persons suffering insulin shock and/or other medical emergencies requiring

immediate medical attention and who either died and/or did not survive on both the

subject ship, and on any cruise ship in Defendant’s fleet; and incidents in which

passengers, or crew members who have allergic reactions to medication provided

by the ship’s medical staff on both the subject ship, and on any cruise ship in

Defendant’s fleet.

ECF No. [34] at 2.

Defendant objected to Plaintiff’s interrogatories and the hearing followed. Judge Otazo-

Reyes thereafter entered her Order, limiting the scope of Plaintiff’s Interrogatory #10 to a period

of three (3) years prior to the date of the incident, and to medical incidents involving insulin shock

that involved the same doctor and/or medical staff who treated the Decedent. ECF No. [33] at 1.

In the Order, Judge Otazo-Reyes also limited Plaintiff’s Interrogatory #11 to the time period of

three (3) years prior to the date of the incident, and to medical incidents involving allergic reactions

to penicillin that involved the same doctor and/or medical staff that treated the decedent. Id. at 2.

Plaintiff objects only to the Order’s limiting the scope of the prior incidents to the same doctor

and/or medical staff that treated the Decedent.

II. LEGAL STANDARD

Federal Rule of Civil 72(a) provides that, when timely objections are made to a magistrate

judge’s order on a pretrial, non-dispositive matter, “[t]he district judge in the case must . . . modify

or set aside any part of the order that is clearly erroneous or is contrary to law.” The “clearly

erroneous or contrary to law” standard of review is “extremely deferential.” Pigott v. Sanibel Dev.,

LLC, Civil Action No. 07-0083-WS-C, 2008 WL 2937804, at *5 (S.D. Ala. July 23, 2008). Relief

is appropriate under the “clearly erroneous” prong of the test only if the district court “finds that

the Magistrate Judge abused his discretion or, if after viewing the record as a whole, the Court is

left with a definite and firm conviction that a mistake has been made.” Id. (quoting Murphy v.

Gardner, 413 F. Supp. 2d 1156, 1162 (D. Colo. 2006)); see also Dees v. Hyundai Motor Mfg.

Alabama, LLC, 524 F. Supp. 2d 1348, 1350 (M.D. Ala. 2007) (stating in reviewing magistrate

judge’s discovery order that “in the absence of a legal error, a district court may reverse only if

there was an ‘abuse of discretion’ by the magistrate judge”). With respect to the “contrary to law”

variant of the test, “[a]n order is contrary to law when it fails to apply or misapplies relevant

statutes, case law or rules of procedure.” Id. (quoting S.E.C. v. Cobalt Multifamily Inv’rs I, Inc.,

542 F. Supp. 2d 277, 279 (S.D.N.Y. 2008)).

III. DISCUSSION

Plaintiff argues that the limitation of prior incidents to the same doctor and/or medical staff

who treated the decedent was clearly erroneous and contrary to law.2 In her Objections, Plaintiff

contends that Judge Otazo-Reyes improperly placed the burden of establishing relevance on

2 Plaintiff also argues that she is entitled to reconsideration of the Order pursuant to Rules 59(e) and 60 of

the Federal Rules of Civil Procedure. However, other than generally setting forth the legal standards

applicable to those Rules, Plaintiff has otherwise provided no specific basis or argument that would justify

the Court’s review of the Order under either Rule. Moreover, Plaintiff has cited no authority to support the

application of Rules 59(e) or 60 in reviewing a Magistrate Judge’s ruling on a pretrial non-dispositive issue.

Accordingly, the Court considers Plaintiff’s Objections under Rule 72(a) only.

Plaintiff rather than Defendant, and failed to apply the correct legal standard in erroneously

determining that Plaintiff’s requested discovery was irrelevant. In response, Defendant argues that

Plaintiff fails to show the existence of clear error or that the Order was contrary to law, and that

Plaintiff relies on cases that are inapposite.

Upon review, the Court agrees that Plaintiff has failed to make the necessary showing to

justify sustaining her Objections to Judge Otazo-Reyes’s Order. First, Plaintiff fails to point to any

portion of the record indicating that Judge Otazo-Reyes explicitly ruled that Plaintiff’s requests

were irrelevant or that she improperly placed the burden upon Plaintiff to establish the relevance

of the requests. Indeed, Defendant argued at the hearing that Plaintiff should receive no

information regarding past prior incidents because her claims are essentially for medical

malpractice, and therefore necessarily unique based upon Decedent’s particular characteristics and

medical history. See ECF No. [40] at 4-6. Even so, Judge Otazo-Reyes explicitly determined that

Plaintiff’s requests were relevant:

THE COURT: So again, I’m going to stick to the usual that I do of allowing the

prior incidents. It may not be notice in the sense of a slip and fall, but given what

is being alleged, I think there is a relevance connection.

Id. at 7. In addition, following Plaintiff’s argument, Judge Otazo-Reyes rejected Defendant’s

contention that the requests should be limited to only the same doctor who treated the Decedent,

and ruled that the requests include any medical staff that treated the Decedent. Id. at 9-10. Judge

Otazo-Reyes also rejected Defendant’s objection to Interrogatory #11 seeking information

regarding past incidents of allergic reactions to penicillin based upon the medical examiner’s report

not listing allergic reaction as either a primary or potentially secondary cause of death in

Decedent’s case, ruling that the request was relevant. Id. at 12-14.

Second, other than citing case law setting forth the general standards applied to discovery,

Plaintiff does not explain how Judge Otazo-Reyes’s limiting the requests regarding prior incidents

to those involving the same doctor and medical staff who treated the Decedent is clearly erroneous

or contrary to law. Neither case Plaintiff cites for her argument against limiting prior incidents to

the same doctor or medical staff in fact supports her position. In Ree v. Royal Caribbean Cruises,

Limited, the court determined that the requests regarding past injuries involving any type of high

speed boat, where plaintiff was injured during an offshore excursion, were outside the scope of

permissible discovery, notwithstanding the generally broad scope of discovery. 315 F.R.D. 682,

686-87 (S.D. Fla. 2016). In Lobegeiger v. Celebrity Cruises, Incorporated, No. 11-21620-CIV-

ALTONAGA/Simonton, 2012 WL 12844732, at *5 (S.D. Fla. Apr. 18, 2012), the court declined

to rule in advance of trial whether the plaintiff would be able to demonstrate substantial similarity

upon a motion in limine to exclude references to, or evidence involving other incidents. Plaintiff

does not explain how Lobegeiger is relevant to the circumstances here. Moreover, a review of the

hearing transcript and the Order reflects that Judge Otazo-Reyes carefully considered Defendant’s

objections to Plaintiff’s Interrogatory #10 and #11, and appropriately narrowed Plaintiff’s requests

based upon Plaintiff’s claims as framed in the Amended Complaint.

Accordingly, based upon the deferential standard afforded under Rule 72(a) to a Magistrate

Judge’s rulings on pretrial non-dispositive matters, Plaintiff has failed to meet her burden of

showing that Judge Otazo-Reyes’s Order was clearly erroneous or contrary to law.

As a result, it is ORDERED AND ADJUDGED that Plaintiff’s Objections, ECF No. [34],

are OVERRULED.

Case No. 20-cv-24939-BLOOM/Otazo-Reyes

DONE AND ORDERED in Chambers at Miami, Florida, on August 12, 2021.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record