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Orlando, Florida

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Ed Normand
Ed Normand
Attorney • (866) 735-1102 Ext 336

Discovery Request Rejected in Disney Monorail Crash

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Lawyers on behalf of Christine Wuennenberg were rejected in their request that a Judge order Disney to allow them access to inspect evidence for potential litigation arising from the death of her son Austin Wuennenberg. Mr. Wuennenberg died while operating a Disney monorail on July 5, 2009. Attorney Christina Searcy filed a Petition for a Pure Bill of Discovery in the case. The Petition is a discovery document that is used to allow Florida Courts to order the production or inspection of evidence in the possession of only one party and is served before a lawsuit is filed. The petition asked the court to allow Wuennenberg to have access to evidence that Disney may have concerning the crash including video of the monorails, audio communication footage, and event recorder or "black box" data storage devices. The petition also sought access to the complete list of witnesses, lists of employees involved in the operation of the monorail and an inspection of the logs of employee whereabouts in the months prior to the crash. The request indicated a concern that the evidence "may be destroyed, erased and/or altered." In furtherance of the apparent suspicion that evidence will be altered or destroyed, the request also sought metadata of digital information in Disney’s possession related to the crash.

No official signed order is recorded in the Court files but electronic court records indicate that the request to inspect the evidence was denied. As to the ruling on the alternative request that Disney be ordered not to destroy any evidence, the present Court record is incomplete. It is, however, likely that such a ruling would be entered. It is unlawful in Florida to destroy evidence that is likely material to a civil action before or during a lawsuit.

Florida laws make it very difficult to recover in a wrongful death action brought by the estate of an employee against an employer. Generally the legal standard prevents recovery for anything other than statutorily mandated minimal workers compensation benefits even in cases of clear negligence. In fact, in order to recover against Disney in any eventual lawsuit Wuennenberg will have to prove that the conduct by Disney in causing the death of her son was intentional or substantially certain to occur. That is a very high standard of proof and can even exceed the standard of proof required for even a manslaughter conviction. It is likely that alternative claims may be contemplated against others who potentially contributed to the death besides Disney. For instance, a product manufacturer whose negligence would not be protected by the workers compensation exemptions from civil liability that Disney likely enjoys under Florida law.

The NTSB has investigated the incident but a final report may take more than a year. A preliminary report ruled out mechanical error as the cause of death but continued an investigation into the potential that human error may have caused the crash.




2 Comments

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  1. James Cool says:
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    How in the world was this not granted? Unreal.

  2. Gerry McGill says:
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    I understand the difficulties in an employee suing an employer in Florida, except in Jones Act or FELA cases but I would file suit against Disney and try to take up the discovery issues on an emergency basis with the Judge that will be actually handling the case if different from the Judge that denied the discovery motion.