Eric Ewing, while traveling as a cruise passenger onboard the Carnival Ecstasy, suffered a mild traumatic brain injury (MTBI). Eric’s journey to justice was difficult and long. His shipboard injuries occurred on January 25, 2018. His original trial was delayed due to COVID. Eventually, the case was tried in Federal Court over two weeks in October of 2021. Eric claimed his cabin steward violated Carnival’s safety policies by not locking the bunk above his lower bed and that rough seas caused it to deploy, striking him on his head. Crewmembers testified rough seas could cause unlocked bunks to deploy. Moments after being struck by the bunkbed and trying to see how badly he was hurt, Eric took out his phone to shine its light on his head. Still trying to figure out what happened, it occurred to Eric to check the upper bunk on the opposite side of his stateroom. Upon learning the opposite bunk was also unlocked, Eric used his phone to record a video showing that both upper bunks were not locked. Despite this evidence, the jury returned a defense verdict in Carnival’s favor.
While a diagnosis of a traumatic brain injury is dependent upon a clinical examination by a well-qualified neurologist, Eric underwent a diffuse tensor imaging (DTI) study one year and eight months following his shipboard bunk incident. The DTI demonstrated several abnormal impressions consistent with traumatic axonal shear injury (TAI), including:
- Abnormal decreased white matter fractional anisotropy (FA) within the left posterior coronal radiata region in a pattern and distribution consistent with traumatic axonal shear injury and posttraumatic loss of white matter integrity. Abnormal decreased white matter FA on DTI has been shown to proportionately correlate with cognitive deficits and poor clinical outcome in traumatic brain injury patients,
- Progressive enlargement of the third and lateral ventricles, in comparison to an earlier MRI consistent with rapidly progressive central atrophy (white matter of the brain dying), a common finding in traumatic brain injury patients, and
- Anterior left temporal subcortical white matter focal T2 signal abnormality involving the gray matter-white matter junction, most compatible with focal gliosis secondary to traumatic axonal shear injury.
The trial judge, however, granted a new trial acknowledging he erred by allowing Carnival to play a video depicting a “burly crewmember” jimmying open the upper bunk with a butter knife. The Judge reasoned the video was irrelevant and extremely prejudicial since Carnival had never raised at any time before trial the defense of fraud or fabrication, and there was no evidence Eric had attempted to forcibly open the bunk, which the crew testified could only be opened with a bunk key, which only they possessed.
A Two And Half Week Long Trial With A Very Different Outcome
A second 2-1/2 week-long trial concluded on Nov. 23, 2022, with a very different outcome. The second jury returned a plaintiff’s verdict in Eric’s favor. Like the first trial, Carnival again argued the bunk had been locked by Eric’s cabin steward but that the lock failed due to a screw or screws that vibrated loose over time.
Concerned, however, that all crewmembers testified the bunk’s lock was fully functional, meaning lockable, at all times and clearly did not support the “loose screw” theory, Carnival again advanced the argument that Eric forced or jimmied open the bunk. In short, Carnival argued Eric was a fraud and a liar. To this end, and just before the start of the second trial, Carnival requested it be allowed to show the jury a second staged and previously never disclosed video, this time depicting a petite female crewmember forcing open the bunk’s lock with a butter knife.
The Judge reasoned, regardless of whether the forced entry was perpetrated by a burly versus petite female crewmember, the video remained highly prejudicial and speculative at best. Therefore, the Judge denied Carnival’s motion to use the second jimmy video at trial.
With the forced entry by a butter knife out, Carnival invented yet another theory as a fallback to its “loose screw” theory. It claimed midway through the second trial that Eric used a backscratcher to force open the bunk. Eric’s backscratcher could be seen in Eric’s video as well as in a photo taken by the ship’s security the following day lying on Eric’s bed. To counter Carnival’s “forced entry by backscratcher” theory, Brais Law entered into the record several facts pertaining to Eric’s true character and particulars regarding his travel aboard the Carnival Ecstasy:
- Eric was an Honorably discharged veteran from the U.S. Marine Corps,
- Eric had never previously sued anyone in his life, despite a failed surgery many years earlier that resulted in Eric requiring prescribed opioid medication for the remainder of his life,
- Eric, after his separation and divorce many years earlier, sought and obtained sole custody over his two children and stepdaughter,
- Eric helped his elderly neighbors by routinely mowing their lawns,
- Eric had sailed with Carnival on 27 previous cruises,
- Eric’s vacation of choice was to sail on Carnival Cruise Ships, and only Carnival Cruise Ships,
- Eric had four cruises booked with Carnival, three already paid for after the subject cruise,
- Eric was in the stateroom alone,
- Eric had sailed with his backscratcher onboard Carnival’s Cruise Ships five to six years, three times each year, or on perhaps as many as 15 prior occasions, and
- Eric had every reason not to stage an injury during the cruise because he’d taken care of his mother, who lived with him for more than 15 years before the cruise, and was looking forward to continuing his labor of love following the cruise but was unable to do so because of his inability to care for himself following his mild traumatic brain injury.
Brais Law addressed Carnival’s backscratcher theory during closing by pointing out to the jury that no “mastermind criminal or fraud artist,” which Eric was accused of being, would leave the tool by which the alleged crime was committed out for all to see not only the day of the incident but the following day as well. No one!
What The Jurors Saw
Jurors, of course, hear and see only what a Judge allows into evidence. Unbeknownst to the jury and leading up to the second trial, Carnival had requested it be allowed to use a demonstrative aid (a mini-bunk assembly, if you will, replicating the bunk’s lock) and the actual bunk in its entirety after being removed from the Carnival Ecstasy. At the end of a nearly all day pre-trial evidentiary hearing, the Judge ruled both the aid and actual bunk were so dissimilar in the manner they’d been assembled or, in the case of the actual bunk, re-assembled, that neither could be used at trial, making specific note in its order, “In addition, there are scratches, sometimes called “scoring marks” on the latch plate seen in Court yesterday which were not present during the joint July 2019 inspection.” In short, the Judge took particular note that the scratch or scoring marks present on the bunk’s lock first appeared long after Eric’s injuries and likely as a consequence of Carnival’s repeated jimmying or forced entries into the lock via butter knives as demonstrated in Carnival’s burly and petite crewmember videos.
The jury saw through Carnival’s deception and awarded Eric ten times Carnival’s highest settlement offer at any time leading up to trial. Over very difficult circumstances and many years, Eric remained committed to clearing his good name and holding Carnival accountable.
Congratulations, Eric, on a fight well fought. Keith S. Brais and Michelle Gurian would like to acknowledge the help of co-counsel Phillip P. Parrish and Paul M. Hoffman, who contributed immensely to Eric’s victory.
Contact Brais Law Firm Today for Help With All Maritime and Cruise Ship Law Needs
Brais Law is a boutique, maritime, cruise line and personal injury law firm with its main office located in Miami, Florida, and satellite office outside of Boston, Massachusetts and Goa, India. Keith Brais, the firm’s founding partner, has been Board Certified in Admiralty and Maritime Law with the State of Florida since 1996. Mr. Brais’ bio may be found at Keith S. Brais – Brais Law Firm, Ms. Gurian’s at Michelle Y. Gurian – Brais Law Firm and the firm’s website at Brais Law Firm | Maritime Lawyer | Cruise Ship Injury Attorney. Contact the firm by calling 1-800-499-0551 or sending an email to [email protected].