Expert WitnessLitigationPublic Transportation

Potential litigation after Carnival cruise descends into chaos as travelers and security brawl

Imagine a lovely 10-day cruise through the South Pacific. You and your family have boarded the Carnival Legend, sat through the mandatory lifeboat drill, found your cabin, and prepared to enjoy a week-and-a-half on the open ocean. Eating, drinking, dancing, and having a grand old-time.

Let’s take it a little further. Imagine a family of twenty-three (23) individuals has joined you on your voyage. They are probably on the ship for the same reasons you are: rest and relaxation. Alas, that was not the case!

Over the last weekend, news broke that a violent brawl had occurred on the Carnival Legend on or around February 15, 2018. This brawl appears to have been the culmination of many days of unrest on the cruise ship. The Washington Post reports, “A Carnival cruise devolved into near-anarchy during its 10 days in the South Pacific, with some passengers locking themselves inside their cabins, others kicked off the ship and security guards brawling with vacationers in a bare-knuckles melee.”

After cell phone footage surfaced of the fight, Carnival has stated they would investigate the event in full. However, they are already blaming a large family for instigating unrest. Some passengers have claimed the violence and disobedience had escalated for days before security had intervened. When security did intervene, as evidenced by the cell phone footage, they appear to battle it out with the passengers. Punching and kicking passengers into submission and working to stop other passengers from filming the quarrel.

Will a lawsuit arise from the brawl?

In my experience, lawsuits arise from just about every kind of event. So, I expect to hear about some possible legal action related to a fight between vacationers and security, which resulted in worldwide news coverage. Call it an educated guess that legal action may take place after this incident.

For what reason might someone bring legal action? In this case, there are a wide variety of issues. Let’s concentrate on security participating in the brawl. My assumption is someone will sue on the issues of negligence and premises liability. There appear to be plenty of options for a negligence cause of action (negligent security, negligent hiring, negligent training, negligent supervision, and more).

Brawl at the Nightclub

On dozens of occasions we have located expert witnesses after a fight erupted at a bar or nightclub. These are very common lawsuits. A patron is harmed in a scuffle and later brings suit against the bar/restaurant/nightclub operator. Oftentimes, these establishments employ separate security guard contractors and a suit is brought against that company as well. Since there is cell phone footage of the brawl, I expect Carnival to face litigation surrounding the fight. Visual evidence is more compelling than witness statements as long as the video can be authenticated.

Furthermore, it appears the Carnival employees, including security, are unprepared to detain unruly passengers. Their attempts to control the fight leads to a violent struggle between passengers, staff and security. I am quite certain the use of punches and kicks to bring a passenger into submission will be considered an unnecessary use of force.

In the video, I do not see an effort by Carnival staff and security to detain and secure the disruptive passengers. Quite the contrary, they appear to engage them in fisticuffs. Such behavior by crew members is likely to fall below the standard of care for cruise ship personnel and security.

In fact, Carnival’s own Safety and Security statement on their website claims, in pertinent part:

  • All Carnival officers and crew undergo comprehensive regular safety and emergency training that meets or exceeds all regulatory requirements.
  • Our crew members undergo specific training to handle emergency situations and help our guests. Crew roles, responsibilities and duties are clearly defined and assigned to handle any emergency on board.

Looking at the above statement in conjunction with the available video, and this pundit believes the crew members are likely to require extensive training on handling ill-tempered passengers. Punching and kicking the passengers, even if well-deserved per other passenger statements, probably does not meet Carnival’s safety and security standards.

Family Evacuated in Australia

It seems the disorderly family of 23 was escorted off the ship Australia. Police boarded the ship to remove the large family. According to the Washington Post, nobody was immediately charged with a crime.

Am I alone in hoping the family is not identified as United States citizens?

Expert WitnessExpert Witness TestimonyPsychology

Voodoo Cases Trigger Memories of Child Witchcraft Expert Witness Request

In an article posted today in the Associated Press on Yahoo News brought back memories of one of the most unusual expert witness requests ever received. In the article from Yahoo News, Voodoo followers fear a backlash after two separate crimes against children were committed in the last two months. Due to similarities in the crimes, authorities have identified Voodoo rituals as a motivating factor in the injuries sustained by the child victims.

The two cases happened in Massachusetts. The first crime occurred in East Bridgewater, MA, when two sisters were arrested for restraining and burning a 5-year-old girl in an attempt to rid her of a demon. The child suffered permanent disfigurement. The violence against the child was described as a “Voodoo ritual.” Nearly a week later in Brockton, MA, a mother was arrested for stabbing two of her children in what the mother described as “Voodoo stuff.”

Two separate crimes, within close proximity, and both mentioning or characterizing rituals as related to Voodoo, have upset followers of local community members who practice Haitian Vodou, as they fear the crimes will result in a backlash against their culture and religion. The article explains “practitioners of Haitian Vodou, which adherents spell differently to distinguish it from other variants, say the religion does not sanction violence and fear the crimes will spark a backlash against their community.”

Reading this article sparked a memory of one of the most interesting cases presented to me during my time with Experts.com. It was not the most high-profile expert witness request I had ever received, but it was one of my first international expert requests.

The Child Witchcraft Expert Witness Request

Criminal defense counsel out of UK had contacted me via email. He was looking for several expert witnesses. His first two requests were common enough: forensic psychiatrist and child psychologist. It was the third request, for a Child Witchcraft expert, that forced me to do some in-depth research and search beyond our database to located the appropriate expert witness. First of all, I had no idea to what the attorney was referring. This was the first time in my life I had ever heard of the “Child Witch Phenomenon” or “Child Witchcraft.” As such, the research on the subject was basically to educate myself on the topic before I started contacting expert witness candidates.

While researching, I discovered… In several countries in Africa (Nigeria, Congo and others), there is a severe cultural and religious fear of witches as they are the crux of evil. According to this 2010 article from CNN, “Pastors in southeast Nigeria claim illness and poverty are caused by witches who bring terrible misfortune to those around them. And those denounced as witches must be cleansed through deliverance or cast out.”

Often, children are the ones accused of being witches. In order to cleanse the child, they are beaten, tortured, and sometimes buried alive. Some children have been stabbed to death in an attempt to free them from the witch’s grasp.

Religious leaders in some African countries have taken advantage of this belief in Child Witchcraft. They will offer to expel or exorcise the witch for a price. A pretty good way to make a living if you are dealing with a poor and uneducated populace. Rather than being made aware of mental health disorders that could be impacting a child’s behavior, these pastors have made a living preying on a family’s fear.

How did the case make it to the UK?

The UK has a large immigrant population. Those emigrating from areas in Africa where the Child Witch Phenomenon is rampant, now find themselves in a new country with new laws and a different appreciation of mental health disorders and treatment.

At the time we processed the referral for a Child Witchcraft expert witness, I recall there having been 10-12 UK-based criminal trials involving Child Witchcraft allegations. A child appears uncontrollable, possibly dealing with early onset mental illness, and the parents seek the counsel of religious leaders. Those leaders recommend exorcism. Exorcism involves violence, the child is severely harmed, the police get involved, and criminal complaints are filed. The prosecution begins.

Is this now happening in Massachusetts? Instead of the Child Witch Phenomenon, is the State dealing with a similar Voodoo-based phenomena?

How do we as a society, address these types of issues before the child is endangered and the parents are on trial? Is it a matter of educating parents, community, and religious leaders about mental illness? Do we need to improve awareness of treatment? Your comments are welcome!

 

Accident Investigation & ReconstructionAccident SafetyIndustrial Accident

Car Accident Experts: Quentin Tarantino Questions How the Uma Thurman Accident Happened

Over the weekend we heard from another victim of Harvey Weinstein. This time, actress Uma Thurman discussed her assault at the hands of Hollywood’s most well-known predator in a piece for the New York Times. In this opinion piece by Maureen Dowd, Uma Thurman recounts a physical attack by Weinstein that occurred when she was a young actress (an attack Weinstein denies).

Also discussed in the article was a car accident on the set of Kill Bill. An accident Thurman believes resulted in long-term neck and knee damage. The interesting aspect of this car accident is that it was recorded by a camera mounted on the Karmann Ghia driven by Thurman (video available in the Times article).

In an article published last night by Deadline, director Quentin Tarantino explains that he provided the 15-year-old footage to Ms. Thurman in the hopes that “if I get this footage to her and she puts it out there in the world, that a crash expert can look at it and determine exactly what happened on that road.”

In the article on Deadline, Tarantino provides us with some more information about contributing factors in the crash. Here are some of the items that an accident reconstructionist would have to take into account when viewing the video.

  • Uma Thurman was driving the automobile somewhere between 35 and 45 MPH
  • There was an S-curve in the road that appears to be a fork in the road
  • The road had more sand and less dirt than Tarantino anticipated
  • Tarantino drove the road in one direction to test safety
  • Thurman drove the road in the opposite direction with no prior test in that direction
  • There was a mounted camera on the back of the automobile making the back-end heavier
  • Tarantino says the automobile was hydroplaning on the sand
  • The car goes into a spin in the sand and slides into the tree

Unfortunately for Thurman, she believes that the automobile may not be around for inspection by an auto accident expert. In the Deadline article, Tarantino explains his conversation with Thurman after the Times article was released last weekend and recounts their conversation as follows: “After the car incident. She feels it’s very possible the car was destroyed, at Harvey Weinstein’s insistence, and at Bennett Walsh and Lawrence Bender’s execution.” Putting aside the conspiratorial ideas and potential destruction of evidence, the remaining information to be analyzed is the video and witness statements.

What else can we determine from the video?

What else might help to determine the cause of the accident? In the video we actually get to see the impact to Ms. Thurman’s body at the time the automobile hits the tree. The movement and impact on the body could help explain the cause of the accident.

Not only will a “crash expert” be needed to analyze the video and witness statements as suggested by Tarantino, but it is likely a biomechanics expert would be required to help determine the injury to Thurman’s body. The combination of expertise from an accident reconstructionist and biomechanics expert will provide Ms. Thurman with a full accounting of the cause of this crash and resulting injury.

By her own account in the Times article, Ms. Thurman describes, “The steering wheel was at my belly and my legs were jammed under me… I came back from the hospital in a neck brace with my knees damaged and a large massive egg on my head and a concussion.” In the video you can see the relatively tall Thurman’s legs shoved under the steering wheel of the Karmann Ghia. There is also a protrusion (which appears to be her Kill Bill sword) at about shoulder level (while sitting). This protrusion impacts with the right side of her head when the front left side of the car collides with the tree. One can only imagine this item (which probably should have been secured or removed) was responsible for the concussion.

There are a host of other issues present in an accident like this. Certainly matters of workplace safety come to mind. However, Mr. Tarantino only seemed interested in determining the cause of the accident. In which case, we recommend the involvement of an automobile accident reconstructionist and a biomechanics expert as described above.

I invite any of our Experts.com members to review the video and write an article analyzing the accident!

ConsultantsExpert WitnessLitigation

The Super Bowl Arrives as We Await the SCOTUS Decision on Sports Gambling in Christie v. NCAA

Super Bowl Sunday is upon us! In just five days, we’ll be sitting down with friends and family to watch the Eagles and Patriots duke it out to determine NFL supremacy in 2018. I’ll be filling up on smoked brisket, barbecue beans, and a variety of other chips and dips (likely including mass quantities of guacamole). Sunday is also a time of unrepentant gambling. A day of vice if you will. It’s great fun!

This year is no different from years past, except we in the legal community are expecting a ruling from the Supreme Court on the Christie v. NCAA, a case that could open the flood gates for legalized sports betting throughout the United States.

Let’s be honest, many citizens are already participating in sports gambling. Whether it be the office pool, fantasy football, prop bets during the game, or bets with your local bookmaker (not recommended), gambling is a massive part of this annual event.

The Las Vegas hotels and casinos are busy with enormous bets. A story from Boston.com last week highlighted some six and seven-figure bets being placed at the South Point sports book and The Mirage Hotel & Casino. One person placed a bet for $2 million, which is just a tad more than I’m willing to bet this year. Bookies expect total legal betting on the Super Bowl to break last years’ record $138.5 million.

So let’s take a look at how all of this began approximately 7 years ago.

PASPA and Christie v. NCAA:

Gambling is big business and other states want in – New Jersey included! In 1992, Congress passed the Professional and Amateur Sports Protection Act (PASPA), which prohibited state-sanctioned sports gambling with a few exceptions. According to this post from The Legal Intelligencer, “The act includes exceptions for state-sponsored gambling in Nevada and sports lotteries in Delaware and Oregon.” The act was enacted with the support of all four professional sports associations and the NCAA. The intent of the law was to preserve the integrity of athletic events.

Starting in 2011, then New Jersey Governor Chris Christie’s administration took measures to challenge PASPA, leading to a multi-year court battle to have PASPA declared unconstitutional for violating the anti-commandeering doctrine of the 10th Amendment.  It should be noted that New Jersey has lost the case(s) every step of the way (trial and appeals), yet the Supreme Court granted certiorari and heard oral arguments in December of last year.

As laid out by The Legal Intelligencer, “New Jersey argues that, by requiring it to enact state laws to prohibit sports betting, PASPA is commandeering the state’s law enforcement system. The state claims that PASPA violates its sovereignty.”

SCOTUS Ruling Expected by June 2018:

As oral arguments have already been heard, we can expect the decision to be released no later than June of this year. What will happen? I’m no professional SCOTUS commentator, so I dare not hazard a guess at the potential outcome. However, Professor I. Nelson Rose of the Gambling and the Law Blog, predicts “a fairly large majority of the Supreme Court will rule that states cannot be told that they have to continue to make a product or service illegal.” Professor Rose is a law professor at Whittier and has served as an expert witness in civil and criminal trials on the topic of legalized gambling.

If Professor Nelson is correct, next years’ Super Bowl could be a whirlwind of new state-sanctioned sports gambling. Will this also open the doors for eSports and fantasy gambling sites like FanDuel and DraftKings? I guess we’ll have to wait to see how the Supreme Court rules.

How will you be spending Super Bowl Sunday?

Expert WitnessLitigationPharmaceuticalUncategorized

Kentucky AG files lawsuit against opioid distributor McKesson

As I mentioned in our blog post on November 6, 2017, we would be covering the US “opioid crisis” as the lawsuits against manufacturers and distributors heated up. Today, we found out Kentucky Attorney General, Andy Beshear, filed a complaint against McKesson Corp. According to this story by Reuters, Mr. Beshear “accused drug distributor McKesson Corp of helping fuel the opioid epidemic by failing to halt shipments of suspiciously large or frequent orders by pharmacies of prescription painkillers.”

Mr. Beshear’s office filed suit in Kentucky state court. The complaint further alleges McKesson filled suspicious orders and shipped tremendous quantities of prescription opioid pharmaceuticals to Kentucky pharmacies, without reporting them to authorities or preventing the shipments. According to the AG’s own press release, “Federal and state law requires pharmaceutical distributors to monitor and report to law enforcement when it ships large or suspicious supplies of opioids to a state or region.

There’s a wide array of state and local governments pursuing lawsuits against pharmaceutical companies, including McKesson, for deceptive marketing and failures to report suspicious activity which are resulting in opioid addiction and deaths within their cities and towns.

Let’s take a look at causes of action and potential experts:

Based on the complaint, we see that the Kentucky AG is attacking McKesson on some interesting causes of action, including: Consumer Protection Act Violation; Public Nuisance; Negligence per se; Negligence; Unjust Enrichment; Fraud by Omission; and Medicaid Fraud. Mr. Beshear is seeking punitive damages for the State of Kentucky. The complaint further provides the Kentucky Consumer Protection Act protects citizens from “predatory or inappropriate acts by sellers of goods.” The Act states “unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”

With this information it appears deceptive marketing practices will be an issue in this lawsuit. Both Kentucky and McKesson are likely to employ marketing expert witnesses to address which practices may or may not be false and misleading.

Within this cause of action, Mr. Beshear further alleges violations of the Kentucky Controlled Substances Act. This Act creates a “broad duty on the part of wholesalers to monitor, detect, investigate, refuse to fill, and report suspicious orders of prescription opioids.”

One can only imagine there will be an argument over what constitutes a “suspicious order of prescription opioids.” As such, we expect both parties will be retaining pharmaceutical and pharmacy industry experts. The parties are likely to argue about the existence of indicators used to alert a distributor when a suspect order is placed. I anticipate the parties will be looking to pharmaceutical supply chain or logistics expert witnesses to provide background about notification and indicator systems for identifying suspicious orders.

What relief is the Kentucky AG seeking?

By reviewing the complaint and articles mentioned above, Kentucky is arguing McKesson’s activity has resulted in overdoses which put a drain on emergency services and hospitals. I’m certain Mr. Beshear will argue the costs of medical services have increased significantly as the state has had to deal with opioid overdose.

I further envision an argument will be made about the increase in law enforcement and first responder costs associated with fighting the illegal sales of heroin and other opiates stemming from addiction.

The complaint makes it pretty clear Mr. Beshear is seeking punitive damages on behalf of Kentucky. That being said, both parties are going to employ damages experts. This may involve the use of economists and forensic accountants to determine the amount of financial damage inflicted on Kentucky by McKesson’s actions.

Final Thoughts:

As I’m sitting here in California, I do not understand the true ramifications of the opioid crisis on the State of Kentucky. I am interested to see what individual civil litigation options may be available to the citizens of Kentucky. As such, I invite my friend Daryl Dixon of Daryl T. Dixon Law, in Paducah, Kentucky, to provide us with his thoughts on this subject on his own blog! Ball is in your court, Daryl. Let’s see what the Wildcats have for me…

UPDATED 02/07/2018:

Here is the response from Daryl T. Dixon – Examining the Opioid Crisis: What are my options?

 

Uncategorized

Casino shuttle boat fire resulting in evacuation and one death

A casino shuttle boat caught fire Sunday in Florida, forcing the evacuation of dozens of passengers into the cold Gulf Coast waters. Officials initially stated that none of the evacuation injuries were life threatening. One passenger went home after the evacuation into frigid waters, where she later became ill. She arrived at the emergency room Sunday night about 10pm and died shortly thereafter. Cause of death has not been determined at the time of this writing.

The ferry was only about 100 yards from shore when the captain noticed smoke coming from the engine room. He turned the boat around and told the passengers and crew to abandon ship. About 15 passengers suffered injuries from smoke inhalation and the cold water.

According to this article, The Tropical Breeze Casino said they had never had an issue with the shuttle and have not yet determined the cause of the blaze. The boat is used to ferry passengers to and from the Tropical Breeze offshore casino. The casino is approximately 45 minutes offshore, in international waters.

This maritime accident could require investigation and inspection from a variety of experts in the lead up to probable litigation. Here are the types of experts I expect to be involved in the weeks and months ahead.

Fire Investigation:

The captain noticed smoke very early after leaving port and was able to turn the boat around and have the passengers evacuate while they were still in shallow waters. In this article from Yahoo News, “Coast Guard Petty Officer 1st Class Michael De Nyse said investigators will determine the cause of the fire and examine the history of the boat and Tropical Breeze Casino.” This is what will probably be the initial fire investigation.

From the article it also sounds as though the Pasco County Sheriff will be conducting their own accident/fire investigation. Further cause and origin investigations can be expected from the insurance company for the Tropical Breeze Casino.

With 15 passengers injured and one deceased, I am assuming at least some of the injured parties will be filing a lawsuit. The lawyers for the injured parties will probably request their own inspection of the ferry, which was evidently burned down to the hull. In fact, plaintiff’s counsel will likely want additional experts, beyond fire investigators, to inspect the remainder of the vessel.

Forensic Engineers:

This post on Polymersolutions.com defines forensic engineering as follows, “…using reverse engineering to figure out why a structure, material or component failed to perform as intended. Then, those findings can be used as evidence in court if that failure caused injury, property damage, or was related to some other criminal case.”

From the information currently available, the fire originated in the engine room. If the engine itself caught fire, an engineer specializing in engine mechanics or naval engineering could be used to determine what caused the engine to fail and erupt in flames.

Such an engineer would inspect the components of the engine to determine which item may have failed. It is important to note, once the failed item is discovered, it may expand liability to the manufacturer of the failed component.

Maritime & Admiralty Safety Experts:

The news tells us the captain of the ferry noticed smoke coming from the engine room, so he turned the boat around and ordered the passengers to evacuate.

I expect a great deal of the investigation and approach to establishing liability will hinge on whether the captain followed the appropriate safety protocols for marine passenger safety.

Industries are governed by safety regulations and maritime is no different. A maritime expert will be asked to evaluate the actions of the captain, and other crew, to determine if they acted appropriately under the circumstances.

Did the captain or crew properly inspect the boat before leaving port? Did he order an evacuation too late? Could the captain have done something, before leaving port, that would have prevented the catastrophe? Was the evacuation properly executed? Did the captain follow maritime safety standards in abandoning ship and making sure passengers made it to shore?

Maritime Medicine / Emergency Medicine Experts:

A passenger presented to the emergency room and died a short while later. With this information, I expect both plaintiff and defense counsel to retain medical experts. Since the passenger was only treated at the ER before expiring, both sides will retain emergency medicine experts to review her ER records and possibly opine about whether or not she could have been saved had she presented to the ER sooner.

There is one type of expert both sides may not immediately consider: a maritime medicine expert witness. Although the boat was only 100 yards offshore and the passengers were in waist deep water, this was a maritime accident resulting in death.

It is quite possible that boating accidents taking take place in cold ocean waters require a specific medical response. Was the appropriate medical response utilized? Was there something that could have been done to prevent the death after rescue? Should the passenger have been released home or monitored for 24 hours? What appropriate actions should have been taken after an ocean-based rescue? These are questions for an expert with a long history of maritime lifesaving experience.

Other experts may be involved in litigation stemming from this accident, but these are the most likely types of experts I see being retained in this matter.

Expert WitnessPsychologyUncategorized

NFL investigating Panthers for possible breach of concussion protocol

According to this article on Yahoo, the NFL and the NFL Players Association have opened an investigation into whether the Carolina Panthers violated the concussion protocol for quarterback Cam Newton on Sunday.

This armchair pundit can tell you in watching the replay, Mr. Newton took a pretty solid hit to the head. Thereafter, in walking towards the sideline he fell to his knees. According to Yahoo, Cam Newton only missed one play. You may have wondered, as I did, what is the NFL’s concussion protocol. For that I turned to SBNation.com where they lay out the protocol as follows:

  1. When a potential concussion is identified the player shall be removed immediately from the field.
  2. The NFL team physician and the unaffiliated neurotrauma consultant (UNC) will:
    • Review the video of the play
    • Perform a focused neurological examination
  3. Madden Rule: If there is suspicion of a concussion, the player will be escorted to the locker room for a full assessment
  4. If the player is diagnosed with a concussion, there is NO same-day return to play
  5. If the player passes the exam, he will be monitored for systems throughout the game.

As we witnessed on Sunday, Cam Newton was only ushered to the blue medical tent and then back to the bench. We have to assume the team physician and the unaffiliated neurotrauma consultant did their due diligence to protect him from further harm. Mr. Newton claimed after the game there was a problem with his eye rather than a head injury. I’m of the mind that the human eye is a part of the head and further examination may be necessary. Then again, I am only playing a doctor in this piece.

Why am I concerned about this protocol and the possible failure to adhere to it? In the last 8 years I have seen the reports and talked to the expert witnesses who testify about traumatic brain injury and chronic traumatic encephalopathy (CTE). The real doctors take it very seriously. The damage from CTE is immense and life altering.

I can tell you from my personal experience, the number of doctors specializing in TBI and CTE has at least doubled (probably tripled) in my time at Experts.com. They come in a wide range of medical specialties:

My concern is the medical professionals do what is right for Cam Newton, even if he is only interested in getting back to the game.

With all this said, I want to invite a couple of my friends, both lawyers and former college football players, to respond on this topic in their own time and on their own blogs.

So, to Bernard Nomberg of Nomberg Law Firm and Morris Lilienthal of Martinson & Beason, what say you? Did the Panthers fail to follow protocol? Does the protocol need to change?

UPDATE: January 12, 2018

We asked for input from the lawyers mentioned above. We have received both of their responses in blog posts!

From Morris Lilienthal – Protecting Players: Following Concussion Protocol is a Must.

From Bernard Nomberg – Big Hit on Cam Newton Calls into Question NFL Concussion Protocol.