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On November 15, 2021, Federal District Judge Kenneth A. Marra remanded an injured maritime crewmember’s case from the Southern District of Florida back to Florida’s Fifteenth Judicial Circuit court, granting Zan Lang’s motion to remand his Jones Act negligence claims.  Maritime Attorney Thomas Graham at Leesfield Scolaro has the honor of representing the injured seaman in the case styled Zan Lang v. Allen Exploration and 6161 LLC, Case No.: 21-81813-CIV-MARRA.  The Jones Act case was originally filed in Florida State Court in West Palm Beach.  Shortly thereafter, the Defendants improperly removed the crewmember Jones Act case to federal court in the Southern District of Florida.  A motion to remand the Jones Act claims was filed, contesting Defendants’ removal of the case.

As alleged in the Complaint, Zan Lang was working as a crewmember onboard the M/Y Gigi and M/Y Axis, vessels owned and operated by Allen Exploration, during the time he was subjected to dangerous and unsafe conditions, overworked without the proper equipment, and caused to suffer serious injuries.  Allen Exploration, an American company, owns a fleet of vessels and operates a maritime treasure hunting operation.  As detailed in the Complaint, the U.S. home base for Allen Exploration is Rybovich Marina, located in West Palm Beach, Florida.  Crewmember Zan Lang worked for Allen Exploration for several months on land in West Palm Beach, Florida, before the underlying voyage began.  Despite the clear connection to Florida, Defendants attempted to remove the Jones Act action to federal court, claiming that Jamaican law should apply and the case should be dismissed.  Removal is the legal process of transferring a lawsuit filed in state court to the United States District Court.  To be entitled to removal Defendant must set forth a valid legal basis.  After removal a Plaintiff can seek to have the case transferred back to state court through a legal process known as remand.  Special rules and law for removal apply to maritime actions and crewmember Jones Act claims.

The order granting remand of Zan Lang’s Jones Act case flatly rejects Defendants legal arguments for removal and having the case heard in federal court, and establishes favorable law for crewmember plaintiffs who are hurt or injured and desire to bring a Jones Act claim against their maritime employer.  As a general legal matter, Jones Act claims cannot be removed to federal court.  Lewis v. Lewis & Clark, 531 U.S. 438, 455 (2001).  However, in Zan Lang’s case the defense attempted to argue that United States law should not apply to his claim, that he has no possibility of establishing a Jones Act claim on the merits, and the prohibition against removal of a Jones Act claim to federal court should therefore not apply.  The court also rejected the Defendants’ position that Zan Lang had an obligation to present affirmative evidence to establish the application of U.S. law at the remand stage, and rejected the application of a summary judgment style approach to resolution utilized in the federal Fifth Circuit, calling into question the holding in Lackey v. Atlantic Richfield Co., 990 F.2d 202 (5th Cir. 1993).  The court ruled that Zan Lang’s election to file his Jones Act lawsuit in West Palm Beach was legally proper, and that Defendants had failed to establish a legal basis to remove his Jones Act maritime negligence claim.

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Ilija Loncar, a crewmember on a cruise ship, was feeling ill and reported to the ship’s doctor mid-voyage. Already feeling nauseous, Ilija threw up in front of the nurse. In response, the ship’s doctor ordered the maximum allowable dose of 25 mg Promethazine by intraveinous injection instead of the manufacturer recommended deep Intramuscular route.

Promethazine hydrochloride is a highly toxic caustic drug – The FDA requires the drug’s manufacturer to include a “black box” on the drug’s labels to warn medical providers about the risk of severe tissue damage if the drug is not administered correctly:

BLACK BOX WARNING:

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Pitfalls for Passengers (post-COVID and otherwise):

Disney Cruise Lines re-opens June 26 with all major cruise lines to follow.

Beware of injuries on Inaugural  cruises. . . the cruise industry is re opening with a fury. There is no certainty on how they will handle COVID, or how well their reinstated crew is trained. Remember, even before COVID,  numerous cases of Norovirus  were reported annually as ships came to port. So, Sanitation and safety issues must be paramount along with crowd control and CDC compliance. Will your co-passengers be vaccinated?   Are you willing to spend days or weeks with those likely to spread the virus?  Or, worse yet, confined in a ship’s infirmary?

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Pitfalls for Passengers:

Disney Cruise Lines re-opens June 26 with all major cruise lines to follow.

Beware of injuries on Inaugural cruises. . . The cruise industry is re-opening with a fury. There is no certainty on how they will handle COVID, or how well their reinstated crew is trained. Remember, even before COVID, numerous cases of Norovirus were reported annually as ships came to port. So, Sanitation and safety issues must be paramount along with crowd control and CDC compliance.  Will your co-passengers be vaccinated?  Are you willing to spend days or weeks with those likely to spread the virus?  Or, worse yet, confined in a ship’s infirmary?

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COVID-19 brought more boaters and more watersports enthusiasts into close proximity, making waterways more congested.  Cruise lines are now experimenting with post pandemic precautions.  Americans and international travelers are ready to put coronavirus in the rear-view mirror, but many pre-existing water related hazards will be amplified by over enthusiasm on the water.

Is it safe to get back in the water?

Recently and over the past 40 years, our firm has been asked to investigate a significant number of cases involving collisions between watercraft in the bay, ocean and waterways surrounding Florida.

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Millions around the globe are eagerly awaiting a green light to resume cruising once again.  The decision to restart cruise operations carries with it an obligation on behalf of the cruise lines to ensure the safety of the passengers, crew, and residents of the various ports forming the infrastructure of the cruise industry.  Cruise enthusiasts should carefully consider the decision to book their next cruise vacation, including locations and precautions.

The cruise line industry has been on “pause” since the pandemic arrived in March 2020.  Now, the situation is fluid and unpredictable, with return dates changing like the tides.  In the U.S., Carnival Cruise Line plans on resuming cruises in North America on June 27, 2020. Norwegian Cruise Line has delayed North American operations through May 31, 2021.  And Royal Caribbean has suspended operations until the start of May 2021.  Canada has extended a full ban on cruising until February 28, 2022, and in the UK cruises are on hold into summer 2021.  In other parts of the world, some Asian and European cruises have already set sail in the new normal.

When cruises resume in the U.S. they will be subject to a strict safety framework issued by the U.S. Centers for Disease Control and Prevention.  The goal is to ensure that ship operators have adequate health and safety protections and crewmember testing protocols in place to stop the spread of the virus.  Before fully operational cruises commence, the lines will be required to conduct simulated voyages to test their ability to mitigate COVID-19 risk.  Thereafter, a phased return to passenger voyages will be permitted once virus safety and virus spread mitigation has been demonstrated.  The Centers for Disease Control and Prevention currently recommend that all people avoid travel on cruise ships, including river cruises, worldwide.  Passengers who decide to go on a cruise are instructed to get tested for COVID-19 three to five days in advance of a voyage, and to remain home for a full 7 days after travel even if they test negative after returning to home port.  Some cruise lines have indicated they will require all passengers to receive a COVID vaccine prior to boarding.  Others, including Norwegian Cruise Line, have already begun requiring the crew to be vaccinated.  The cruise lines have indicated they will work with medical and scientific experts to develop best practices for safe sailing.

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NBC recently featured attorneys Thomas Scolaro and Adam Rose for their latest lawsuit against Royal Caribbean on behalf of Phoebe Moon and her parents.  The nine-month-old Phoebe Moon was amputated as a result of Royal Caribbean’s doctors’ negligence who missed clear signs of meningococcocal meningitis infection.  After sending the parents back to their cabin five times without affording any care to their baby, the doctors reluctantly allowed the family to go off-shore for a medical consult.  The local emergency doctors diagnosed Phoebe with meningitis at first glance and they went to work on her immediately.  They later told the Moons that Phoebe was minutes away from losing her life.

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trunks_birdsThe cruising industry has more than doubled in the last two decades. In the last 15 years alone, the number of cruise passengers has increased from 15 million to 30+ million. To satisfy the demand, cruise lines have built increasingly large ships that can host over 5,500 passengers and over 2,300 crew-members. Consequently, the number of injuries sustained by passengers and crew-members has also increased.  As a result, Leesfield Scolaro’s general maritime attorneys have been retained to represent injured passengers and crew-members for the last 20 years.

If you are an adult, how long do you have to file a lawsuit?

Your ticket contract is where you will find the answer. Typically, cruise line ticket contracts will disclaim that a lawsuit against them for an injury claim must be filed within one year from the date the incident occurred.

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Miami attorneys Ira H. Leesfield and Thomas Scolaro represent the family of Phoebe Moon who at 9-months old lost both her feet and half of her fingers due to the indefensible medical negligence of Royal Caribbean Cruises Ltd. (RCCL) ship board physicians. Phoebe is now a triple amputee forced to live her life with unimaginable handicaps, limitations and mental trauma reserved for the most damaged in society.

A complaint was filed today against the Miami-headquartered cruise line on behalf of Phoebe and her parents, Aime and Luke Moon, whose nightmare began on the Symphony of the Seas on February 24th. At 8:30 a.m. that morning they took Phoebe to the ship’s infirmary in a panic. Phoebe was pale, lethargic, feverish, tachycardic, dehydrated, and had been vomiting intermittently. Phoebe needed immediate medical attention for exhibiting clear and classic signs of meningococcal meningitis infection.

Dr. Kalander, RCCL’s physician, ignored the marked lethargy and most other symptoms exhibited by the baby. Phoebe was mis-diagnosed with acute gastroenteritis. Phoebe and her parents were told to go back to their room as part of an isolation protocol for the gastroenteritis.

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Attorney Thomas Scolaro was recently featured in an exclusive interview on LawDragon.com.  Notably Mr. Scolaro addresses results past and present, including the successful litigation against a furniture manufacturer and the hurdles in forcing the industry to change inadequate industry standards to prevent toddlers from sustaining fatal injuries:

LawDragon: Can you describe a recent matter that you’ve handled?

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Thomas Scolaro: A two-year-old boy was killed when he tried to climb up his dresser to reach the baby-cam. As he pulled out the drawers to climb to the top, the center of gravity shifted and the dresser tipped over onto him. He asphyxiated to death. He only weighed 30 pounds yet was able to cause the dresser to tip over. We successfully settled the lawsuit with the manufacturer. However, since this dresser was actually compliant with all furniture industry tip-over standards, I felt that we needed to shine a flashlight on the inadequacy of the voluntary furniture tip-over standard and hold them accountable. I am currently suing the furniture industry trade group, American Home Furnishings Alliance and ASTM International for negligently promulgating a known inadequate tip-over standard. A 30-pound, two-year-old boy should never be able to tip over a dresser. If that can happen then the standard used by manufacturers is grossly inept.

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