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September 2, 2010 |
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| June 08, 2007 |
By: Dan Cordtz |
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orwegian Cruise Lines won a major victory when a federal jury in Miami cleared the company of negligence in lawsuits brought by four passengers aboard the Norwegian Dawn cruise ship in 2005 when it was rocked by a 70-foot wave.
The plaintiffs claimed the Miami-based cruise line was negligent because it knew of the strong possibility of a storm and could have avoided it. Norwegian countered the storm was an “act of God” and it was not responsible.
The defense verdict returned last week was significant because the trial was the first of more than 80 scheduled trials involving the same incident that U.S. District Judge Cecilia M. Altonaga, in a highly unusual move, has ordered to be heard by the same 10-person jury.
Last September, Altonaga refused to certify the case as a class action. That would have consolidated the claims of some 400 Norwegian Dawn passengers. Instead, the judge decided that five plaintiffs at a time would have to prove liability by Norwegian Cruise Lines.
Altonaga also ordered all the trials held before the same group of jurors. The idea, according to Miami attorney Joel S. Perwin, one of the half-dozen plaintiff lawyers in the case, was that “if the cruise line was held liable in the first case, then in later cases the jury would simply decide on damages for each of the individual plaintiffs based on their particular physical or emotional injuries.”
But in the initial three-week trial, the jury — after 2½ hours of deliberation — rejected the underlying claim that the cruise line was responsible.
Colin Veitch, president and chief executive of NCL Corp., hailed the outcome in a written statement. “We are pleased with the jury’s thoughtful and reasoned decision,” he said. “We have always maintained that this lawsuit existed only in the minds of the plaintiffs’ lawyers, and this verdict confirms our belief.”
Perwin said: “We’re all very disappointed. I can’t say I’m optimistic about the other cases in view of the verdict. Obviously if it’s the same jury the decision would probably be the same.”
Veteran Miami plaintiff attorney Ervin A. Gonzalez, who is not involved in the case, said in his two decades in practice he has never heard of a similar arrangement. But he added: “The judge has great discretion, and she was clearly within her rights to do it. But it certainly is unusual.”
Norwegian’s lead attorney, Curtis Mase of Mase & Lara in Miami, said while such a series of trials was commonplace, he is not aware of another case where the same jurors were used. But he argued, “The procedure makes sense if only because it avoids the possibility of inconsistent verdicts being made on the same core issues.”
Racing for Trump show?
From its inception, the case has been anything but ordinary. When he filed suit, Brett A. Rivkind of Miami’s Rivkind & Pedraza in Miami alleged Norwegian deliberately ignored forecasts of violent weather during the final days of a weeklong cruise. He said the ship’s captain and crew chose to sail directly through the storm off the South Carolina coast on their way from the Bahamas back to New York City.
Rivkind alleged the cruise line was motivated by its desire for television exposure. It wanted the 695-foot ship, carrying 2,200 passengers, to reach New York in time for a scheduled appearance on the Donald Trump show, “The Apprentice.” Otherwise, it could have avoided the worst weather, he said.
When the Norwegian Dawn encountered the 70-foot “rogue” wave, windows were broken, more than 60 cabins were flooded and many passengers panicked — although only four suffered physical injuries.
Rivkind claimed weather forecasts made such a huge wave a predictable possibility and said the cruise line was reckless to disregard the risks.
Norwegian responded that a 70-foot wave was “an act of God” for which it could not be held responsible. Its lawyers also presented a report of the National Transportation Safety Board concluding that the ship’s captain and crew had acted properly during the incident.
Initially, Rivkind argued that all passengers who were hurt, traumatized or had their vacations ruined were sufficiently similar as to constitute a class. In the motion for class certification, that definition was expanded to include anyone who sailed on that cruise.
But Judge Altonaga ruled last September that “regardless of which definition is advanced, the putative class is impermissibly overbroad.” She then ordered the series of trials — which could take years to complete — and took the novel step of picking one jury to decide all of them.
In the end, the jury accepted the cruise line’s account, including its denial that the Trump TV appearance — which never happened — had influenced its decision to brave the storm.
Jury members answered “no” to the question: “Was defendant NCL negligent in its conduct and/or decisions regarding the M/V Norwegian Dawn?” They also found NCL did not “engage in extreme and outrageous conduct with the intent to cause severe emotional distress.”
As a consequence, the jury did not consider claims for damages, which for all of the 400 plaintiffs total more than $100 million.
Rivkind said the legal fight is far from over. Judge Altonaga previously instructed the jury to return in 40 days for the second trial. But Rivkind indicated he may seek to persuade her to change her decision to use the same jurors in every trial.
“The jury’s verdict only applies to these four plaintiffs and has nothing to do with the other cases,” he said. There are still questions about how the other trials will be handled, he added. “So it’s not appropriate for me to say anything about them.”
Mase said he will resist any attempt to empanel new juries to hear the other cases. “We went through a long process to come up with the system that Judge Altonaga approved. And all the plaintiff attorneys agreed to it.”
Moreover, Mase said, the same attorneys who represented the four plaintiffs in the first trial are counsel for the remaining plaintiffs as well and agreed to the procedure on behalf of all their clients in the case.
Norwegian Dawn photo by Newscom
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