Court: United States District Court for the Southern District of Florida
Case Name: Cosmo v. Carnival Corp
Citation: 2017 U.S. Dist. LEXIS 179587
This case involves a passenger injury that occurred on a Carnival cruise ship in August of 2015. The plaintiff, Wayne Cosmo, slipped and fell while participating in a scavenger hunt activity on the ship’s pool deck. Cosmo subsequently brought a negligence claim against Carnival alleging that as a result of the injuries he sustained while aboard the ship, he suffered debilitating and permanent medical complications. These complications included “surgery of a right distal radius comminuted intra-articular fracture, distal ulnar non-displaced fracture, complex regional pain syndrome, right-hand neuropathy, right-hand carpal tunnel syndrome, depression, anxiety, and exacerbation of his pre-existing ulcerative colitis.”
Both parties retained a number of experts, and both parties challenged the opposing experts’ testimony. The plaintiff challenged one of the statements made by the defendant’s gastroenterology expert in his report.
The defendant’s gastroenterology expert reviewed the plaintiff’s medical records relating to gastrointestinal complaints. In his report, the expert mentioned that the lack of consistency in the patient’s symptoms. He also stated that the entirely normal colonoscopy/pathology in the setting of the lawsuit inescapably raised the prospect of an inaccurate history prompted by the plaintiff’s potential for secondary gain.
The plaintiff objected to this statement, claiming that it was an improper accusation of financial incentivization that was inadmissible and a violation of law. The plaintiff argued that the expert gastroenterologist’s opinions created the possibility of the jury considering secondary gain as an explanation for the plaintiff’s claims. However, this case was triable by the court rather than a jury. Given the absence of possible jury confusion or prejudice, and the fact that the gastroenterology expert predicated his “secondary gain” explanation on the objective medical findings, the plaintiff’s motion to strike the expert’s report. The court found no reason to strike this portion of the expert opinion and deferred to the district judge’s discretion the weight to which it may be entitled.