Case 6:10-cv-01713-CEH-KRS Document 156

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION IN ADMIRALTY CASE NO.: 6:10-cv-01713-CEH-KRS THOMAS P. KEENAN, III Plaintiff, vs. BEYEL BROTHERS, INC., Defendant. __________________________/ MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION FOR SANCTIONS PURSUANT TO RULE 11 [D.E. 152] Plaintiff, THOMAS KEENAN, by and through undersigned counsel hereby files and serves his Memorandum in Opposition to Defendants Motion for Sanctions Pursuant to Rule 11 [D.E. 152] and states: Summary of Argument Defendant, BEYEL BROTHERS, INC.S (BEYEL BROS.) Motion for Sanctions Pursuant to Rule 11 is nothing more than a litigation tactic being employed because this case impassed at mediation and trial is looming with the possibility of punitive damages exposure. The purpose of the instant motion has nothing to do with sanctionable conduct but has everything to do with an attempt to scare KEENAN and its counsel to withdraw the punitive damages claim. BEYEL BROS. Motion is based primarily on KEENANS February 27, 2012 Reply Memorandum in Support of its Motion to Compel better responses to his Renewed 2nd Request for Productions [D.E. 115]. In particular, BEYEL BROS. takes exception to the statement,

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Moreover, though not reveled in the opposition memorandum, BEYEL failed to this day to tender cure for KEENANS lumbar injury. As an initial matter, the subject Rule 11 Motion is procedurally flawed as it: (1) attacks a discovery pleading; (2) the Court already ruled upon the subject pleading before BEYEL BROS. served its Rule 11 Motion; and, (3) the Rule 11 Motion filed with the Court is different than the motion served. Also, the Reply Memorandum satisfies Rule 11 as is supported by testimony of KEENANS mutually selected treating doctor Richard Hynes and other medical records. Furthermore, it appears BEYEL BROS. is confused as to the meaning of the word cure is it relates to maritime personal injury cases as such a definition encompasses tendering of medical treatment until the seaman is declared at maximum cure. No doctor has declared KEENANS lumbar injury at maximum cure. Consequently, BEYEL BROS. Rule 11 Motion cannot be granted. MEMORANDUM OF LAW I. Rule 11 Standard Rule 11 sanctions may be awarded, after notice and a reasonable opportunity to be heard, (1) when a party files a pleading that has no reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; and (3) when the party files a pleading in bad faith for an improper purpose. Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996) (citation omitted); see Fed. R. Civ. P. 11(b), (c). The standard for testing conduct under . . . Rule 11 is reasonableness under the circumstances. Anderson v. Smithfield Foods, Inc., 353 F.3d 912, 915 (11th Cir. 2003) (citations omitted). Sanctions are warranted when a party exhibits a deliberate indifference to obvious facts, but not when the

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partys evidence to support a claim is merely weak. Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1294 (11th Cir. 2002) (internal quotation marks and citations omitted). Moreover, all doubts as to whether Rule 11 has been violated should be resolved in favor of the party who signed the pleading. See, Great Lakes Reinsurance (UK) PLC v. Blue Sea, LLC, 2006 U.S. Dist. LEXIS 59834, Case No. 6:05-cv-1660-Orl-22KRS (M.D. Fla. Aug. 24, 2006). II. Analysis a. Rule 11 Has No Applicability to the Underlying Discovery Pleading BEYEL BROS. Rule 11 Motion targets the Reply Memorandum filed in support of a motion to compel discovery responses brought under Rule 37. 1 By its own terms Rule 11 is inapplicable to discovery motions. Rule 11(d) specifically states: Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery request, responses, objections and motion that are subject to the provisions of Rules 26 through 37. As Rule 11 is inapplicable to the targeted filing, the instant sanctions motion must be denied. b. BEYEL BROS. Motion Violates Rule 11(c)(2)s Safe Harbor Provision Though BEYEL BROS. Rule 11 Motion states is it based primarily upon the Reply Memorandum [D.E. 11], it drops footnote 4 basing its motion of statements made in KEENANS Motion for Summary Judgment and Response to Rule 72 Objections. See, Motion for Sanctions Pursuant to Rule 11, [D.E. 152], Pg. 3 & fn. 4. BEYEL BROS. March 9, 2012 service copy of the Motion for Sanctions Pursuant to Rule 11 does not contain that language. See, March 9, 2012 Service Copy of the Motion for Sanctions Pursuant to Rule 11 & Cover Letter, attached hereto and marked Exs. A & B respectively. In fact, there are several differences between BEYEL

In fact, Plaintiffs Motion to Compel Better Responses to Renewed 2nd Request for Production upon Defendant is specifically based upon Fed.R.Civ.P. 37(a)(3)(A). See Motion to Compel, [D.E. 102] Pg. 1.

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BROS. March 9, 2012 service copy and the copy filed with the Court on April 3, 2012. KEENAN was under the impression that BEYEL BROS. was challenging the Reply Memorandum and was rather shocked to see the new footnote 4 in the copy filed with the Court. Rule 11(c)(2) safe harbor provision states: The Motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court see fit. If warranted, the court may award to the prevailing party the reasonable expenses, including attorneys fees, incurred for the motion. BEYEL BROS. failed to comply with the above safe harbor provision. Consequently, its Motion must be denied.

c. The Rule 11 Motion was Untimely BEYEL BROS. did not raise a Rule 11 challenge until March 9, 2011 -- after the Court issued its February 28, 2012 Order grating the Motion to Compel [D.E. 116] and the March 5, 2012 Order denying BEYEL BROS. Motion for Reconsideration [D.E. 127]. See, March 9, 2012 Letter and March 9, 2012 Motion for Sanctions Pursuant to Rule 11, attached hereto and marked Exs. A & B. As such, KEENAN could not have corrected any offending language in its Reply Memorandum as the underlying motion had already been ruled upon. See e.g., Tompkins v. Cyr, 202 F.3d 770, 788 (5th Cir. 2000)(finding, among other things, that a Rule 11 motion was untimely when filed after the trial had concluded, thereby denying the plaintiffs a reasonable opportunity to correct their complaint). BEYEL BROS. should not be allowed to wait until the Court rules on the Motion to Compel and rules on the Motion for Reconsideration then seek Rule 11 sanctions. As such, the Rule 11 Motion must be denied. 4

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d. The Alleged Offending Language & Evidentiary Support As stated, BEYEL BROS. Motion is based primarily on the statement, Moreover, though not revealed in the opposition memorandum, BEYEL, failed to this day to tender cure for KEENANS lumbar injury. See, Motion for Sanctions, Pg. 9. BEYEL BROS. Motion attempts to paint a picture that KEENAN filed no evidence supporting this contention. Such is not the case. As the Reply Memorandum reveals, KEENAN block quotes his treating physicians testimony which clearly supports his contention. Specifically, Dr. Richard Hynes testified: Q: Okay. Was any real course of treatment provided for Mr. Keenan for his low back? Not really. We were really treating him for his neck condition. And the consultation, the authorization provided to the B.A.C.K. Center was with respect to what condition, his neck? Was there an authorization provided by that carrier to provide medical care with respect to the lumbar condition? Not that Im aware of no.

A:

Q:

A:

See Reply Memorandum, Pg. 6 & Dr. Hynes Deposition Transcript, Pg. 25, ln. 25 Pg. 26, ln. 5. attached thereto as Ex. C. After the Court entered its Order compelling production, BEYEL BROS. filed a Motion for Reconsideration attaching much of the evidence it attaches to this Rule 11 Motion to support its contention that discovery should not be compelled because, in BRYEL BROS. opinion, it provided cure for the lumbar spine. See, Motion for Reconsideration, [D.E. 118]. The Court denied the Motion for Reconsideration stating, the Court will not resolve the factual dispute in connection with a discovery dispute. See, Order Denying Motion for Reconsideration, [D.E. 127]. Consequently, the Court has already found some evidence

supportive of KEENANS contention that BEYEL BROS. failed to provide cure for his lumbar injury. As such, sanctions under Rule 11 cannot be granted. See, Blanck v. City of Altamonte 5

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Springs, 2011 U.S. Dist. LEXIS 119634; Case No. 6:11-cv-293-Orl-28KRS (M.D. Fla. Sept. 9, 2011)(finding Rule 11 sanctions not awardable where some evidence was shown to support the elements of a claim). Though not stated in the subject Reply Memorandum, there are other sections of Dr. Hynes deposition supportive of KEENANS claim that BEYEL BROS. failed to provide cure relative to the lumbar injury. Such testimony includes: Q: And do you have an opinion within a reasonable degree of medical probability or certainty if the lumbar disk that - - that is symptomatic at this point is causally related to either or both of the dates of accidents that were here discussing? MR. LITTLE: Object to form, move to strike. A: I noted in the record that in about three or four months after the injuries he began complaining -- at least in the record -- by in an interview today with the patient he states clearly he complained of back complaints, but everyone focused on the neck, and he was told at one point that we couldnt treat his low back condition here so no one focused on it. I have to review that more. I havent had a chance to really understand what we were allowed to treat, not treat (emphasis added). Deposition of Dr. Hynes, Pg. 58, lns. 10 25, attached hereto as Ex. C. In an effort to distance itself from Dr. Hynes testimony, BEYEL BROS. repeatedly misstates or, at a minimum, grossly overstates the contents of Dr. Hynes offices (The Back Center) and the physical therapists medical records in order to fabricate a basis to say it provided timely and appropriate medical treatment for the lumbar spine throughout this depute. A close review of the subject records with The Back Center and the physical therapists office (Osler Medical) proves otherwise. The records from The Back Center and Osler Medical total 81 pages. See, Medical Records attached hereto and as Ex. D. The very first Patient History Questionnaire dated July 28, 2010

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provides: pain in left neck, shoulder, arm, hand and mid-back herniated disc(s). On this same date, Dr. Supler, also with The Back Center, immediately placed KEENAN on a no work restriction. For each of the dates that follow, KEENAN was: (a) provided physical therapy at Osler Medical, (b) examined at The Back Center or (c) provided diagnostic tests for conditions relating to his cervical discs, but do not appear to mention any curative care or treatment to KEENANs lumbar back, to wit: 7/28/10, 8/18/10, 8/24/10, 8/25/10, 8/27/10, 8/30/10, 8/30/10 (2nd), 9/01/10, 9/03/10, 9/07/10, 9/08/10, 9/10/10, 9/15/10, 9/17/10, 10/08/10, 10/08/10 (2nd), 10/08/10 (3rd), 10/20/10 (MRI Cervical), 10/20/10 (MRI Thoracic Spine), 11/12/10, 11/12/10 (2nd), 11/23/10, 11/23/10 (2nd), 11/24/10, 1/07/10, 1/07/10 (2nd), 1/10/10 (CT of Cervical Spine Post Discogram), 1/12/2011, 1/25/10, 1/25/10 (2nd), 2/22/10, and 2/22/10 (2nd). While the word lumbar may appear in some of records dated above it appears the lumbar condition was identified as a problem area and not provided any real medical treatment. On the following dates KEENANs lumbar condition is discussed or identified via diagnostic test: 10/20/10 (MRI Lumbar Spine), 11/02/10 (MRI results reviewed with patient), 11/06/10

(mention is made of intermittent low back, lumbar 4-5 and 5-1 show spondylotic change, HNP, and [w]e will have to determine what steps we should take for the back pain complaint as well, but again these records identify a low back herniated disc but to not mention any curative treatment of the lumbar condition), and 11/09/10 (mention is made of feels weakness in the lower extremities but again there is no reference to curative treatment for the lumbar condition). On March 9th, 2011, eight (8) months after suffering his second accident, an Osler physical therapy record makes mention of KEENANs lumbar condition, i.e., The patient wants to treat his low back in order to avoid surgery. Following this date and for a little over one (1) month it appears some physical therapy was provided to KEENAN. An April 21, 2011 record from The Back Center

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provides; his back is still giving him a great deal of pain and we are going to initiate therapy to see if we can improve this. Ongoing lumbar herniated nucleus pulposus with residual low back pain. Keenan is now going to proceed with physical therapy for his back. For his back, we will do the therapy, see how it is coming along, and then we will release him from his neck, MMI at that point. See, Medical Records attached hereto as Ex. D. In short, Dr. Hynes testimony that KEENANs lumbar condition was not really treated is corroborated by the above records. KEENANs lumbar condition was only tangentially treated at the very end of his care and treatment with Dr. Hynes. BEYEL BROS. never provided timely or appropriate medical care sufficient for KEENAN to ever be diagnosed as having reached maximum medical improvement for the lumbar issue. KEENANS condition that BEYEL BROS failed to provide cure for his lumbar condition also supported by the fact that when KEENAN underwent his Rule 35 compulsory medical examination, BEYEL BROS. only authorized its expert orthopedist Dr. Stephen Goll to examine the cervical spine. Dr. Golls August 4, 2011 report specifically states: RECOMMENDATIONS: 1. We were authorized to today to evaluate the patient with respect to his cervical spine complaints as it pertains to injury of 05/29/2010. He was also complaining of lower back pain today resulting from a separate injury, which occurred 07/17/2010. I explained to him that evaluation and opinions regarding his low back condition were outside the scope of our requested authorized evaluation at this time. See, Dr. Stephen Golls Compulsory Medical Evaluation Report, Pg. 8 attached hereto as Ex. E (emphasis added). This concession by Dr. Goll is most telling as the Notice for Compulsory Medical Examination was not limited and before the July 27, 2011 examination took place KEENAN told BEYEL BROS. at his July 17, 2011 deposition that he had lumbar pain arising from the alleged shipboard

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event. See Notice of Compulsory Medical Exam and KEENANS Deposition Transcript, Pg. 209, lns. 1 14 attached hereto and marked Exs. F & G. If BEYEL BROS. was tendering cure for the lumbar spine as it contends now, why didnt it authorize Dr. Goll to examine the lumbar level when there was no limit to the physical examination. The answer is clear. BEYEL BROS. was not tendering cure for the lumbar spine. Given the above, there is sufficient evidence to support KEENANS contention that BEYEL BROS. failed to tender cure for his lumbar condition and Rule 11 sanctions must be denied. e. Meaning of the Word Cure Perhaps the origin for why BEYEL BROS. thinks Rule 11 has been violated is that it misunderstands the meaning of the cure. Cure is a term of art in maritime law. Cure is defined as the payment of therapeutic, medical, and hospital expenses not otherwise furnished to the seaman, again, until the point of maximum cure. Nichols v. Barwick, 792 F.2d 1520, 1523 (11th Cir. 1986)(quoting Pelotto v. L&N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979)). It is clear from the records BEYEL BROS. did not provide therapeutic, medical, and hospital expenses for the lumbar injury not otherwise furnished to KEENAN until the point of maximum cure. Moreover, BEYEL BROS. self-serving statement that Dr. Hynes declared KEENAN at maximum cure for the lumbar spine on November 12, 2011 is refuted by Dr. Hynes. Dr. Hynes testified the November 12, 2011 maximum cure declaration for only for the cervical injury and not the lumbar issue. Dr. Hynes testified: Q: So, if there was lumbar treatments reported prior to November 12, 2011 would you consider that statement to mean that he was at MMI for his medical conditions that you were treating? A: Well, no. The MMI is referral to his neck. Q: Okay. So, that mention right there is just strictly to his neck?

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A: Thats correct. See, Deposition of Dr. Hynes, Pg. 63, lns. 14-21 attached hereto as Ex. C. At that same deposition, Dr. Hynes testified KEENAN is restricted, symptomatic and there is a propensity for the problem to increase over time. Q: Regarding his lumbar condition, Doctor, do you have an opinion with a reasonable degree of medical probability or certainty that he may need further medical intervention in that regard? MR. LITTLE: Objection to form, move to strike. A: I said in the 4/21/11 note that he is restricted. He has disk hernation, been fairly well-controlled at that point with therapy, medication, and avoidance of significant bending and lifting. So, be he remains symptomatic. So, there is the propensity for the problem to increase over time. It certainly has been there for quite a while now and not likely to suddenly disappear. See, Deposition of Dr. Hynes, Pg. 57, lns. 9-20 attached hereto as Ex. C. As the evidence shows, KEENAN is not at maximum cure for his lumbar condition and BEYEL BROS. cannot point to one record that says otherwise. Applying the fact that BEYEL BROS. did not provide payment of therapeutic, medical, and hospital expenses not otherwise furnished to KEENAN until the point of maximum cure to the cure definition set forth by the Eleventh Circuit (payment of therapeutic, medical, and hospital expenses not otherwise furnished to the seaman, again, until the point of maximum cure), KEENANS statement that BEYEL BROS. failed to this day to tender cure for [his] lumbar injury is accurate. Consequently, Rule 11 sanctions cannot be awarded. f. Much Ado About Nothing As admitted by BEYEL BROS. the underlying orders are based upon two separate and distinct grounds. The first ground is BEYEL BROS. unreasonably delayed in tendering a

qualified doctor for KEENANS cervical injury. The second ground is the failure to provide 10

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cure for the lumbar injury. The first ground is not challenged in the instant Rule 11 Motion. As such, if the Court now decides there was no factual or legal basis for KEENAN to state that BEYEL BROS. failed to tender cure for his lumbar spine, BEYEL BROS. is still required to produce the requested net worth discovery based upon the first ground (the delay in providing cervical cure). 2 III. Request for Attorney Fees Fed. R. Civ. P. 11(c)(1)(A) provides, [i]f warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. BEYEL BROS. Rule 11 Motion is procedurally flawed and completely unsubstantiated given the Court has already reviewed the instant argument and much of the same evidence when it denied BEYEL BROS. Motion for Reconsideration. Therefore, an award of attorneys fees for the time spent to prepare a response to the Rule 11 Motion is appropriate. Conclusion Based upon the foregoing, the Court must deny BEYEL BROS. Motion for Sanctions Pursuant to Rule 11 and issue an award for fees in KEENANS favor for having to prepare a response to this motion.

CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a copy of the forgoing has been served this 20th Day of April, 2012 upon: JAN KUYLENSTIERNA, ESQ. CHARLES G. DE LEO, ESQ. DAMON HARTLEY, ESQ. RICHARD LITTLE, ESQ. Counsel for Defendant
2

This assumes the District Court overruled BEYEL BROS. objection on the two (2) discovery orders.

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DE LEO & KUYLENSTIERNA, P.A. Town Center One 8950 S.W. 74th Court Miami, Florida 33176 Telephone: (786) 332-4909 Facsimile: (786) 518-2849 via CM/ECF

BRAIS & ASSOCIATES, P.A. Counsel for Plaintiff New World Tower 100 North Biscayne Blvd. Suite 800 Miami, Florida 33132 Telephone: (305) 416-2901 Facsimile: (305) 416-2902

By:__RICHARD RUSAK________ RICHARD D. RUSAK Florida Bar No.: 0614181 RRusak@braislaw.com

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