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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

IN RE SKANSKA USA CIVIL 

SOUTHEAST INC. AND 

SKANSKA USA, INC. AS 

OWNERS OF THE BARGE KS 

5531, PRAYING FOR 

EXONERATION FROM OR 

LIMITATION OF LIABILITY. 

ADMIRALTY RULE 9(H)

CIVIL ACTION NO.

3:20-CV-05980 – LC / HTC

SENIOR DISTRICT JUDGE 

LACEY COLLIER

MAG. JUDGE HOPE THAI 

CANNON

NON-USA CLAIMANTS’ RESPONSE IN OPPOSITION TO SKANSKA’S 

OBJECTION TO DISCOVERY ORDER NO. 2

INTRODUCTION

Skanska waited until the last minute to file its objection to Judge Cannon’s 

June 19, 2021 Discovery Order, despite Judge Cannon’s efforts to expedite 

discovery in order to ensure the parties were prepared for a fast-approaching

September trial. Within its objection, Skanska mischaracterized both discovery to 

date as a “one-way street” and the Order as “essentially a ruling on the merits of 

Skanska’s defense.” ECF N. 1201 at 5 and 10.1

 Skanska also inaccurately criticizes

the Court for having been “extremely liberal in the breadth and scope of the 

discovery allowed to Claimants.” Id. at 5. Skanska next claims, without supporting 

 1 Skanska has received responses to the remaining discovery requests that it served 

upon nearly 1,000 claimants—regardless of their proximity to the waterfront.

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authority, that its conduct “must be viewed in light of what the community expects 

the weather to be.” Skanska’s Objection, ECF N. 1201 at 5. Most illuminating, 

however, is Skanska’s demand for a tit-for-tat treatment of discovery, id. at 10,

which finds no support in either case law, the Federal Rules of Civil Procedure or 

the District Court’s Local Rules. 

In sum, Skanska has twice failed to demonstrate the relevance or 

proportionality of its expansive, burdensome requests directed at Claimants’ conduct 

in relation to activities leading up to Hurricane Sally and hurricanes past.2

 More 

importantly, Skanska has failed to show that Judge Cannon’s Order is clearly 

erroneous or contrary to the law, under Fed. R. Civ. P. 72(a).

ARGUMENT

I. Skanska Mischaracterizes the Scope of Discovery for Its Limitation of 

Liability Act Petitions. 

As Judge Cannon confirmed, Fed. R. Civ. Proc. 26(c) defines the scope of 

discovery as “any nonpriviledged matter that is relevant to any party’s claim or 

defense and proportional to the needs of the case.” Order, ECF. N. 1192 at 2. 

Skanska leaves no doubt that The Louisiana presumption applies, ECF. N. 1201 at 

2, which operates to hold Skanska “presumptively liable for damages ‘unless it can 

 2 In the interest of efficiency, Claimants represented by the undersigned counsel 

adopt the Standard of Review section set forth in the USA’s Response in Opposition 

to Skanska’s Objection to Discovery Order No. 2. ECF N. 1203 at p. 2-3.

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show affirmatively that the drifting was the result of an inevitable accident, or a vis 

major, which human skill and precaution and a proper display of nautical skill could 

not have prevented.’” Order, ECF. N. 1192 at 3 (citing Petition of U.S., 425 F.2d 

991, 995 (5th Cir. 1970); The Louisiana, 70 U.S. 164, 173 (1865)). Relevance, 

then—and therefore the scope of discovery—relates to Skanska’s ability to meet its

heavy burden of “proving an inevitable accident or Act of God.” Id. (citing Boudin 

v. J. Ray McDermott & Company, 281 F.2d 81, 88 (5th Cir. 1960); The Lackawanna, 

210 F. 262 (2d Cir. 1913); Massman-Drake v. Towboat M/V Hugh G. Blaske, 289 

F.Supp. 700 (E.D. La., 1968)). Skanska concedes that the “standard of 

reasonableness is that of prudent men familiar with the ways and vagaries of the 

sea,” ECF. N. 1201 at 2. As established by this Court in Bunge v. Freeport, Skanska 

demonstrates that a collision was an inevitable accident upon a showing that “every 

prudent measure, consistent with ordinary seamanship, has been adopted, and 

carried into effect by the vessel proceeded against.” Order, ECF. N. 1192 at 4 (citing 

3:97-cv-240-LC (N.D. Fla. Sept. 14, 1999)). Claimants’ activities leading up to 

Hurricane Sally and hurricanes past have no bearing on Skanska’s ability to

overcome its heavy burden.

II. Skanska Still Cannot Demonstrate the Proportionality—Much Less

the Relevance—of Its Objected-to Discovery Requests Subject to 

Discovery Order No. 2. 

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First, as the USA demonstrated, Skanska failed to object to Discovery Order 

No. 2 on the grounds of proportionality, leaving the Court’s Ruling on this ground 

unchallenged and making any future response from Skanska on this ground 

untimely. See ECF N. 1203, p. 3. Nevertheless, Skanska wholly fails to establish 

the relevance of its discovery requests that are subject to Judge Cannon’s ruling. As 

Judge Cannon rightly recognized, “[t]he fact that some of the Claimants may have 

owned one or more personal use watercrafts or lived on waterfront property does not 

necessarily make any of the Claimants “prudent men [or women] familiar with the 

ways and vagaries of the sea” or “other persons of nautical skill”. Order, ECF. N. 

1192 at 4 (citing Fischer v. S/Y NERAIDA, 508 F.3d 586, 594 (11th Cir. 2007).

Skanska, as the sole design-build firm with responsibility for the more than $400 

million dollar Pensacola Bay Bridge rebuilding project, comprised the sole entity 

with responsibility to control the fifty-five barges that filled Pensacola Bay leading 

up to Hurricane Sally. Skanska puts forth no evidence that even a single claimant 

had control over even one barge in the lead up to the storm. Claimants’ pre-Sally 

hurricane preparedness activities do not have any relation to the reasonableness of 

Skanska’s conduct.

Moreover, Skanska takes great liberties with the “under the same 

circumstances” language in The Louisiana. Order, ECF. N. 1192 at p. 5 (citing 

language from The Louisiana, 70 U.S. at 74 in which negligence was found based, 

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in part, on “other persons of nautical skill-disinterested witnesses in this case-found 

no difficulty in securing their vessels at the same place, and under similar 

circumstances”). While the non-USA Claimants defer to the USA’s response to 

Skanska’s Objection as it applies to the USA’s position, ECF. N. 1203, it is hard to 

imagine how the non-USA Claimants represented by the undersigned counsel could 

have been in more different circumstances in relation to Hurricane Sally than a selfdescribed “world leading project development and construction group.” Order, 

ECF. 1192 at 4 and n. 4. What a claimant did, or did not do, in relation to Hurricane 

Sally and hurricanes past bears on no issue to be determined through the Limitation 

of Liability Act trial. The only reasonable conclusion, then, is these requests are 

burdensome for the sake of being burdensome.

III. The Authority Put Forth by Skanska Strongly Supports Upholding 

Discovery Order No. 2.

As Judge Cannon correctly observed of the case law put forth by Skanska: 

“Indeed, in Petition of U.S., Fischer, and Bungee, the courts determined whether the 

vessel owner was exonerated from liability based on a vis major by considering 

expert testimony about whether the vessel owners’ conduct was reasonable.” 

Order, ECF N. 1192 at 5 (emphasis added). Skanska’s objection provides still more 

support to uphold Judge Cannon’s Discovery Order No. 2.

Contrary to Skanska’s position, District Judge Casey Rodgers’ opinion in Hatt 

65, LLC v. Kreitzberg, 2009 WL 3163220 (N.D. Fla. Sept. 30, 2009) does not stand 

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for the proposition that a vessel owner’s actions in securing a vessel “must be viewed 

in light of what the community expects the weather to be.” Skanska’s Objection, 

ECF N. 1201 at 5. This baseless claim represents a giant, unsupported leap taken by 

Skanska in the stark absence of any such discussion. Moreover, Judge Rodgers 

specifically relied on the uncontroverted expert testimony on “standards of prudent 

seamanship” and meteorology. Kreitzberg, 2009 WL 3163220 at *8 (“Applying the 

Louisiana rule, after Kreitzberg demonstrated the reasonableness of his conduct 

through uncontradicted expert testimony, successfully rebutting the presumption, 

Hatt 65 had to do more than assert res ipsa loquitur to prevail.”) (emphasis added). 

Kreitzberg also involved two similarly-sized, closely moored pleasure crafts, Id. at 

*2. The Eleventh Circuit affirmed Judge Rodgers’ ruling, noting in particular the 

lower court’s reliance on uncontroverted expert testimony in combination with fact 

witness testimony. Hatt 65, LLC v. Kreitzberg, 658 F.3d 1243 (11th 2011).

Kreitzberg ̧ then, provides no support for Skanska’s position that it—as the 

world’s 5th largest construction firm—is entitled to closely canvass the hurricane 

preparedness plans and experience for nearly 1,000 claimants in order to extract 

some abstract “community” expectation in relation to the reasonableness of 

Skanska’s conduct in relation to its 55 construction barges leading up to Hurricane 

Sally. If Skanska plans to advance a position that Hurricane Sally made a lastminute, rushed reversal of course, it certainly may attempt to do so as Kreitzberg 

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did—through the testimony of a meteorological expert. Judge Cannon’s Discovery 

Order No. 2 creates no impediment to Skanska’s ability to do so.

Skanska next turns to publically available media reports and press reports to

imply that the weather reports relied upon by the NASP and Escambia County were 

inaccurate. Left unexplained is 1) how or why this information helps Skanska to 

meet its heavy burden of “proving an inevitable accident or Act of God,” and 2) how 

or why the non-NASP claimants’ knowledge and actions advance the “standard of 

reasonableness is that of prudent men familiar with the ways and vagaries of the 

sea.” While Skanska at first refuses to submit that “the securing of a small boat is 

analogous to one of Skanska’s barges,” it nevertheless demands information for 

vessels of all shapes, sizes, and functions, to preserve for itself its own 

determination of whether the vessels are comparable. ECF N. 1202 at p. 9. Rest 

assured, no claimant took on the obligation to control 55 separate construction 

barges. That distinction lies with Skanska and Skanska alone.

IV. The Conduct at Issue is Skanska’s, Not that of Claimants. 

 “It is not the Claimants’ or the US Navy’s conduct that are at issue; it is 

Skanska’s, and nothing in the cases relied upon by Skanska changes that fact.” 

Order, ECF N. 1192 at 5. Judge Cannon’s statement remains accurate even after 

Skanska took two weeks to find supportive case law. After all, Skanska has only 

been able to muster authority that bolsters the Court’s Order, such as Kreitzberg. As 

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Judge Cannon emphasized, the Eleventh Circuit, in Fischer v. S/Y NERAIDA, makes 

clear that the conduct at issue in a matter involving the Louisiana presumption is the 

conduct of the moving vessel subject to the presumption. Order, ECF N. 1192 at p. 

6 (508 F.3d 586, (11th Cir. 2007)).3

 In this matter, then, the conduct at issue is that 

of Skanska.

CONCLUSION

For the reasons set forth herein, Claimants represented by the Undersigned 

Counsel respectfully request this Honorable Court Deny Skanska’s Objection to 

Discovery Order No. 2. Skanska has completely failed to show Judge Cannon’s 

Order was clearly erroneous or contrary to the law.

/s/ E. Samuel Geisler

E. SAMUEL GEISLER, FL Bar # 83817

BRYAN F. AYLSTOCK, FL Bar # 78263

D. NICOLE GUNTNER, FL Bar # 1028925 

Aylstock, Witkin, Kreis & Overholtz, PLLC

17 East Main Street, Second floor

Pensacola, Florida 32502

Office: (850) 202-1010

Fax: (850) 916-7449

sgeisler@awkolaw.com

baylstock@awkolaw.com

nguntner@awkolaw.com

sallyteam@awkolaw.com

and 

 3 It bears emphasis that the testimony in Fischer, like Kreitzberg, “consistent 

predominately of the opinions of both sides’ expert witnesses.”

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/s/ Thomas F. Gonzalez 

THOMAS F. GONZALEZ, FL Bar #173878 

J. NIXON DANIEL, III, FL Bar # 228761

Beggs & Lane, RLLP

501 Commendencia Street 

Pensacola, Florida 32502

Office: (850) 432-2451

tfg@beggslane.com

jnd@beggslane.com

and

/s/ Brian H. Barr

BRIAN H. BARR, FL Bar 493041

EMMANUELLA J. PAULOS, FL Bar 99010

Levin Papantonio Rafferty Proctor 

Buchanan O’Brien Barr & Mougey, P.A.

316 S. Baylen Street, Suite 600

Pensacola, FL 32502

Office: (850) 435-7000

bbarr@levinlaw.com

epaulos@levinlaw.com

Attorneys for Claimants

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 12th day of July, 2021, I electronically 

filed the foregoing with the Clerk of Court by using the CM/ECF system which will 

send a notice of electronic filing to all attorneys of record. 

/s/ E. Samuel Geisler

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