Isidora Rivera v. Royal Caribbean Cruises LTD , 711 F. App'x 952 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10089
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-24173-PAS
ISIDORA RIVERA,
Plaintiff - Appellant,
versus
ROYAL CARIBBEAN CRUISES LTD.,
a Liberian Corporation
d.b.a. Royal Caribbean International,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 10, 2017)
Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Isidora Rivera appeals the magistrate judge’s striking of her expert
witnesses, the magistrate judge’s denial of a motion to compel depositions, the
magistrate judge’s denial of a motion to compel production of a video, and the
district court’s entry of summary judgement against her. After careful review of
the record and briefs, we affirm on all issues.
This suit arises from Rivera’s journey on Royal Caribbean’s ship, Allure of
the Seas. While onboard the vessel, Rivera attended a show. At the show’s venue,
Rivera walked onto the stage area, which was actually an ice rink. She alleges that
the stage was “not barricaded or roped off, and had no one present to warn her of
the danger,” and that she slipped on the ice and fell, sustaining injuries. She
subsequently filed this suit.
Toward the beginning of the suit, on January 15, 2016, the district court
entered an order setting the trial date and pretrial deadlines. This order required
Rivera to furnish her expert witness list and accompanying reports to Royal
Caribbean by July 27, 2016. The order stated “only those expert witnesses shall be
permitted to testify,” and required that Rivera make the named experts available
for deposition by Royal Caribbean within the 14 day period after the list was
furnished. The order further closed all discovery on September 22, 2016.
On July 27, 2016, the day of the deadline for her expert witness disclosure,
Rivera filed a motion to extend the deadline to August 19, 2016. Royal Caribbean
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did not oppose it, and the district court granted it the next day. Notably, the order
did not extend the close of discovery, which remained September 22.
On August 19, Rivera served her expert witness list.1 Per the discovery
schedule, she then had 14 days to “make [her] experts available for deposition by
[Royal Caribbean].” She did not do so. At a hearing on September 15, the
magistrate judge ordered that the experts be made available for deposition by
September 22, the close of discovery. Once again, Rivera did not make her experts
available by the deadline. Royal Caribbean moved to strike the experts on October
13, 2016, and the magistrate judge granted the motion.
I. Motions to Compel
We first dispose of the appeals of the denials of the motions to compel. The
magistrate judge denied the motions to compel depositions and production of a
video on September 19, 2016. Rivera appears to have not objected to this order at
all, and certainly did not do so within the 14 days required by Fed. R. Civ. P. 72(a).
Therefore, she has waived this claim. See Fed. R. Civ. P. 72(a); Peter Letterese &
Assocs., Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1298 n.12 (11th
Cir. 2008); Smith v. Sch. Bd. of Orange Cty., 487 F.3d 1361, 1366 (11th Cir. 2007)
(per curiam).
1
Rivera only served two of three expert reports on this date. The third report was provided on or
around September 22.
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II. Striking Expert Witnesses
We review a trial court’s “decision to admit or exclude expert testimony for
abuse of discretion.” Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1178
(11th Cir. 2013). We “have often held that a district court’s decision to hold
litigants to the clear terms of its scheduling orders is not an abuse of discretion.”
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir.
2011); see also Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339,
1349 (11th Cir. 2004) (“Given the wide latitude the district court has to exclude
untimely submissions, we cannot say that it abused its discretion to exclude this
report.”).
Here, the district court, on Rivera’s motion, extended the expert disclosure
deadline, which deadline Rivera had known about for at least six months. Rivera
still failed to meet the deadline. It was not an abuse of discretion for the district
court to enforce its deadlines in striking the experts. See Josendis, 662 F.3d at
1307; Bearint, 389 F.3d at 1349. Therefore, we affirm the striking of the expert
witnesses. 2
2
Rivera very well may have waived this issue as well by failing to timely object to the
magistrate judge’s order. See Fed. R. Civ. P. 72(a). However, even if we construe her Motion to
Reopen and Extend Expert Discovery as a timely objection to the magistrate judge’s order, and
thus construe this appeal as one of the district court’s denial of that Motion, we still affirm the
striking of the expert witnesses.
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III. Summary Judgment
Rivera also appeals the district court’s granting of summary judgment to
Royal Caribbean on the single count negligence complaint. We review de novo,
viewing the evidence in the light most favorable to the nonmoving party. Jurich v.
Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir. 2014) (per curiam); see also
Am. Dredging Co. v. Lambert, 81 F.3d 127, 129 (11th Cir. 1996). Summary
judgment is appropriate when “there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. Jurich, 764 F.3d at
1304.
Under federal maritime law, 3 we rely on “general principles of negligence
law,” and require the plaintiff make out the familiar four elements of negligence:
duty, breach, causation, and damages. Chaparro v. Carnival Corp., 693 F.3d
1333, 1336 (11th Cir. 2012) (per curiam). When the causal link between alleged
injuries and the incident at issue is not readily apparent to a lay person, expert
medical testimony as to medical causation is typically required. See Allison v.
McGhan Med. Corp., 184 F.3d 1300, 1320 (11th Cir. 1999); see also Kellner v.
NCL (Bahamas), Ltd., No. 15-23002-CIV, 2016 WL 4440510 (S.D. Fla. Aug. 22,
2016) (applying rule in maritime case).
3
“Even when the parties allege diversity of citizenship as the basis of the federal court’s
jurisdiction . . . , if the injury occurred on navigable waters, federal maritime law governs the
substantive issues in the case.” Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir.
1990).
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The district court found that Rivera had not met her burden as to proximate
causation, and we agree. Without medical expert testimony, it is not possible to
distinguish between the ailments Rivera experienced before the fall and those she
experienced after—and due to—the fall. Further, due to the nature of the injuries
that she alleges—including, for example, back pain, depression, anxiety, and vision
issues—expert testimony is simply required in order to even understand the nature
and extent of the injuries. Thus, as Rivera has not met her burden with respect to
proximate causation, we affirm the district court’s grant of summary judgment to
Royal Caribbean. See Allison, 184 F.3d at 1321; Kellner, 2016 WL 4440510.
AFFIRMED.
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