Cruise Ship Law

SHIPOWNERS REQUEST FOR MEDICAL EXAM OF SEAMAN FOR PURPOSES OF A SECOND OPINION DID NOT MEET THE REQUIREMENTS OF A DEFENDANT'S MEDICAL EXAM UNDER THE RULES OF CIVIL PROCEDURE SO AS TO JUSTIFY SANCTIONS AGAINST THE SEAMAN FOR HAVING THE SURGERY WITHOUT ALLOWING THE SHIP OWNER TO HAVE AN EXAM DONE

LUIS VEGA, Petitioner, vs. CSCS INTERNATIONAL, N.V., et al.,Respondents.

CASE NO. 3D01-414
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 12490
September 5, 2001, Opinion Filed

DISPOSITION: [*1] Diamond B's motion to enjoin further prosecution of Texaco's third party demand in state court DENIED. Diamond B's motion to hold Texaco and its attorneys in contempt DENIED. Texaco's motion to recognize Texaco's rights to Diamond B's insurance proceeds DENIED.

PRIOR HISTORY: Writ of Certiorari to the Circuit Court for Miami-Dade County, Ronald Friedman, Judge. LOWER TRIBUNAL NO. 99-13398.

DISPOSITION: Certiorari granted; order quashed.

PROCEDURAL POSTURE: Petitioner employee filed claims in the Circuit Court for Miami-Dade County (Florida), for personal injuries. Respondent employer moved for dismissal or sanctions for intentional spoliation of evidence. The trial court granted the motion and struck the employee's surgeon as a witness and disallowed his records or medical bills as evidence. The employee petitioned for a writ of certiorari to quash the trial court's order.

OVERVIEW: The employee injured his back. His attorney notified the employer's attorney that the employee was scheduled for back surgery. The employer responded with a letter requesting the employee delay the surgery in order to obtain a second opinion. The employee had the surgery without getting a second opinion. The trial court found the request created an obligation on the employee to not have the surgery and struck the testimony of his surgeon and disallowed the surgeon's medical records or bills as evidence. The appellate court found the employer never made a request for a defense medical examination under Fla. R. Civ. P. 1.360(a)(1)(A) because the letter did not contain any of the necessary criteria required by the rule, and was thus insufficient to impose a duty on the employee to postpone his surgery. Therefore, it was error for the trial court to conclude that the employee was required to undergo an examination before having surgery. Further, the employer failed to present any evidence that it was prejudiced by any loss of evidence. Thus, excluding the testimony and records of the physician was an abuse of discretion.

OUTCOME: Certiorari was granted; the trial court's order was quashed.

Posted by Lipcon Law Firm at 11:40 PM | Permalink

THOMAS E. JOHNSON VERSUS LAWSON & LAWSON TOWING COMPANY,INC.

CIVIL ACTION NO. 00-0629 SECTION "R"(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 14607
September 14, 2001, Decided
September 14, 2001, Filed, Entered

DISPOSITION: [*1] Plaintiff's motion for reconsideration denied.

PROCEDURAL POSTURE: Plaintiff, injured party, moved for reconsideration of orders granting summary judgment to defendants, on a finding that making plaintiff lift a 31 pound motor was not negligent as a matter of law, and denying a deferral of summary judgment pending further discovery.

OVERVIEW: Plaintiff argued that the court misconstrued the factual basis for plaintiff's injury, which he claimed was not caused by the initial lifting of the motor, but instead when he awkwardly contorted his body to install the motor. The court found that plaintiff had the evidence of the new mechanics of the injury before the court's order dismissing the claims. Plaintiff had been the only witness to the accident, he had not advanced the new theory before, and he had specifically denied it was the cause of his injury. As to the order refusing to defer summary judgment, plaintiff offered no basis for doing so. Nothing demonstrated that his motion for reconsideration was necessary to correct a manifest error of fact or law, to present newly discovered or previously unavailable evidence, to prevent manifest injustice, or to consider an intervening change in the controlling law.

OUTCOME: The court denied plaintiff's motion to reconsider.

Posted by Lipcon Law Firm at 11:40 PM | Permalink