Horton v. Maersk Line, Ltd.

294 F.R.D. 690, 2013 A.M.C. 2661, 2013 WL 4811238, 2013 U.S. Dist. LEXIS 128400
CourtDistrict Court, S.D. Georgia
DecidedSeptember 9, 2013
DocketNo. CV412-127
StatusPublished
Cited by5 cases

This text of 294 F.R.D. 690 (Horton v. Maersk Line, Ltd.) is published on Counsel Stack Legal Research, covering District Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horton v. Maersk Line, Ltd., 294 F.R.D. 690, 2013 A.M.C. 2661, 2013 WL 4811238, 2013 U.S. Dist. LEXIS 128400 (S.D. Ga. 2013).

Opinion

ORDER

GEORGE R. SMITH, District Judge.

In this maritime personal injury case, defendant Maersk Line, Limited (Maersk) moves under Fed.R.Civ.P. 26(c) for an order to: (1) prevent plaintiffs’ lead counsel, Brent Savage, from “re-abusing” a deposition witness; and (2) bar plaintiffs’ use here of a prior state-court deposition of that same witness, lest they profit from Savage’s misconduct during that deposition. Doc. 71.

I. BACKGROUND

John Horton, a longshoreman, sued the Georgia Ports Authority (GPA) in state court. He alleged that a GPA cargo-crane operator’s negligence partially caused injuries he sustained while unloading a container on a vessel “operated, captained and crewed” by Maersk. Doc. 42 at 2 ¶ 7; doc. 71-3 at 2; [692]*692doe. 81 at 2 (the state GPA lawsuit).1 In a second state court lawsuit (Maersk), since removed to this Court, Horton sued Maersk in negligence on the same incident. Doc. 1-1; doc. 42. Here he claims he was injured while unloading the ship, doc. 1-1 at 7 ¶ 7,2 and he later added as a defendant the container’s owner, A.P. Moller-Maersk A/S (APMM). Doc. 1-1 at 6; doc. 42 at 1-2 ¶ 2.

The specific allegations of negligence figure into the protective order sought here. Horton says he was injured when a “twist lock”3 fell from a container that was suspended in the air. Doe. 1-1 at 7 ¶¶ 5 — 12; doc. 56 at 3. The “twistlock became dislodged after striking another object because the corner casting was in disrepair, having been shaved or cut by a welding torch. [He] also contend[s] that [Maersk] conducted a deficient investigation into the cause of [his] injury, and ... did not properly supervise loading.” Doc. 56 at 3-4; see also doe. 81 at 2 (claiming “the ship’s crew failed to adequately direct and supervise the loading of the ship, and that the shipping container which housed the twist lock was defective.”).

Defendants deny liability, doe. 56 at 4r-5, insisting that Horton’s own failure to heed safety rules caused his injuries. Doe. 71 at 4. The parties here have been conducting discovery, including depositions. During the GPA case they deposed longshoreman Christopher S. Morris, who had been working nearby when Horton was injured. Doc. 81-5 at 8. A key fact in this case was whether Horton violated the “three-container” safety rule — don’t stand within three cargo containers of the area where a cargo unloading crane is “landing” or “taking off’ cargo containers. Id. at 8. Morris, who did not see Horton get hit by what he called a loading “shoe” but who immediately rushed to his aid after it struck Horton in the head, id., deposed that Horton “was not three containers away” when he was struck and injured. Id. at 8 (emphasis added). And a contemporaneous investigation, Maersk points out, corroborates that testimony. Doc. 71 at 2-3 (report showing that the largest pool of Horton’s blood was found “directly underneath the container that lost a twist lock.”).4

[693]*693Morris’ testimony didn’t sit well with Brent Savage, Horton’s lead counsel:

MR. SAVAGE: I mean, he’s already testified under oath [Horton] was more than three, but maybe—
[GPA COUNSEL RON BOYTER]: Right, yeah. That’s what I’m trying to figure out. THE WITNESS: No, he was directly under where we were loading.
Q. (By Mr. Boyter). Okay. All right. So just to be clear, was Mr. Horton within three containers of the container being loaded?
A. Yes. He was not three containers away.

Doc. 81-5 at 29-30 (emphasis added).

[Savage]: Okay. What you’re telling us is that Mr. Horton was at fault here?
A. That he was at fault?
Q. Uh-huh.
A. Yes.
Q. Okay. Now, let’s talk about your experience here. You know Mr. Horton?
A. Yes.
Q. Just look at him and tell him he’s at fault. It’s your fault.
A. It was your fault that day.

Id. at 36.

Morris further undercut Horton’s case against Maersk when he explained how the crane operator’s actions figured into Horton’s injuries: “He eased it down and he — he almost landed the forward end of the box and then was trying to land the aft end, and it hit the other end of the container. The top of the other container he was loading on top of, it hit the edge of the container, hit the shoe and caused it to twist just a little bit. When it caused it to twist, it fell out.” Doc. 81-5 at 7. Horton notes that this testimony affixes liability onto the GPA while exonerating Maersk.5 Doc. 81 at 3-4.

Savage thus proceeded to question Morris’ competency based on the fact that by that point in time Morris was new on the job. That got him nowhere fast:

Q. Do you think you have the ability to say that he was at fault? In other words, you’ve only got five months.
A. Correct. But even at five months, I know the rules of staying away from the containers.
Q. Okay.
A. I don’t want to be hit with a shoe.

Id. at 36-37.

The deposition slid downhill from there. It is laden with a continuous stream of snarky, accusatory questions and innuendos from Savage. See, e.g., id. at 26 (“Q. (By Mr. Savage) Okay. I mean, I don’t get it. We’ve got a guy trying to ruin a guy’s life here who doesn’t — do you feel bad about it?”); id. at 27 (Q. (By Mr. Savage) ... Would you like to call your father-in-law or something as to whether you need a criminal lawyer, Mr. Morris?”). More such examples are reproduced below.

Wary of Savage’s participation in the redeposition of Morris here, Maersk filed the instant motion. Emphasizing that Savage “engaged in bullying and belittling Mr. Morris with threats of contempt and criminal prosecution as well as insults to his integrity, his character, and his education,” doc. 71 at 1, Maersk “respectfully requests that the Court issue a protective order preventing the use of Mr. Morris’s previous deposition for any purpose and protecting Mr. Morris from further abuse in his upcoming deposition.” Id.6 Here is an excerpt from Maersk’s summary (using “minu-seript” page cites, rather than docketing pagination cites) of Savage’s “over the line” behavior:

In an unrelenting effort to dissolve Mr. Morris’s unfavorable testimony about [Horton’s] lack of care, Mr. Savage threatened Mr. Morris, a 20-year-old man, with [694]*694contempt or criminal prosecution no fewer than six separate times. (See, e.g., Ex. A at 12) (Depo. pg. 47, lines 16-18) (“You’re going to do what I say or I’ll go to the judge and hold you in contempt. How about that?”); id. at 21 (pg. 83, lines 8-15) (“Q.

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Cite This Page — Counsel Stack

Bluebook (online)
294 F.R.D. 690, 2013 A.M.C. 2661, 2013 WL 4811238, 2013 U.S. Dist. LEXIS 128400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horton-v-maersk-line-ltd-gasd-2013.