CARNIVAL V. PAJARES

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CARNIVAL V. PAJARES

State: Florida

Court: Florida Third District Court

Docket No: 06-1744

Case Date: 12/26/2007

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2007
Opinion filed December 26, 2007. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D06-1744
Lower Tribunal No. 02-16151

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Carnival Corporation d/b/a Carnival Cruise Lines,
Appellant, vs.

Luis Pajares,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Victoria Platzer, Judge. Holland & Knight and Rodolfo Sorondo, Jr. and Rebecca M. Plasencia, for appellant. Ginsberg & Schwartz and Arnold R. Ginsberg; Rivkind, Pedraza & Margulies and Brett Rivkind, for appellee.

Before GREEN, ROTHENBERG, and SALTER, JJ. ROTHENBERG, Judge.

Crewman Luis Pajares ("Pajares") suffered a stroke while working for Carnival Cruise Lines ("Carnival"). Pajares' claim for failure to provide prompt, adequate medical care was tried and decided adversely to Carnival. Because we conclude that Pajares' counsel's improper comments during closing argument and the comments made by Pajares' witness, Gary Anderson, deprived Carnival of a fair trial, we reverse the trial court's order denying Carnival's motion for new trial. The evidence presented at trial reveals that Pajares worked for Carnival for five years; that each year he was required to undergo a physical examination and be cleared fit for employment by Carnival's doctors; and that after being declared fit for employment, Pajares suffered a stroke. Pajares claimed that Carnival was negligent for failing to diagnose and treat his hypertension, and that as a result, he suffered a stroke. Carnival's defense was that its doctor counseled Pajares on modifications to his lifestyle, recommending that he maintain a healthy diet, avoid drinking alcohol, and quit smoking. Carnival argued that Pajares' stroke was caused by his twenty-eight years of smoking, and that modification of his lifestyle, rather than medication, was the appropriate treatment, and since Carnival's doctor advised Pajares that he should make these modifications to his lifestyle, Carnival was not negligent. Carnival additionally argued that, at a minimum, because Pajares did not quit smoking as recommended by Carnival's doctor, his conduct

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was a contributing cause of the stroke, and any damages awarded to Pajares should be reduced accordingly. In addition to noneconomic damages, Pajares sought damages for the cost of past and future medical care and lost wages. Pajares hired a vocational expert to create a life-care plan, and a forensic economist, Gary Anderson, to calculate Pajares' future economic damages based upon the vocational expert's findings, and to reduce the future damages to their present value. By stipulation, discovery was closed on August 5, 2005, however, the depositions of Pajares' vocational expert and forensic economist were not taken until two weeks and three weeks, respectively, after discovery had closed. Approximately three months after these depositions were taken, and only one week prior to the trial scheduled for November 28, 2005, Carnival moved to amend its expert witness list to include an economist, who Carnival stated was prepared to offer an alternative life-care plan and to testify as to Pajares' future economic damages based on this alternative life-care plan. The judge assigned to try the case denied Carnival's untimely request, but stated that Carnival could revisit the issue if the case was continued. When the case was subsequently continued to March 2006, Carnival again sought to amend its expert witness list to add its economist. Although Carnival's motions to amend were filed in January 2006, well in advance of the March 2006 trial setting, these motions were denied.

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PAJARES' COUNSEL'S IMPROPER COMMENTS DURING CLOSING ARGUMENTS 1. Dr. Diskin Dr. Arthur Diskin, Carnival's medical director, was listed in discovery and called as a witness at trial. Prior to trial, Pajares moved in limine to preclude Dr. Diskin from testifying as to a ship doctor's standard of care. Because Dr. Diskin was not listed as an expert witness, the trial court granted Pajares' motion in limine. Thus, Dr. Diskin was precluded from testifying as to whether Pajares had received proper care. After obtaining this ruling, Pajares' counsel commented on Dr. Diskin's failure to offer the very testimony he moved in limine to preclude, and which the trial court prohibited Dr. Diskin from offering: And you know what was appalling, to hear Dr. Diskin say

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