Lawyer Prods Tough Issue in Deadly Cancun Trip

(CN) - Despite the emotional toll it may take on the family of a teen who fell down an elevator shaft, a federal judge reopened discovery into the boy's alcohol intake..

Andrew Smith, 16, died on June 21, 2006, in the middle of a weeklong trip with his family to the Hotel Y Villas Solaris resort in Cancun, Mexico.

Though a hurricane destroyed many resorts in October 2005, the Smith family was allegedly advised that Solaris was "fully functional" and all repairs were completed.

But the Smiths say they arrived to find much of the hotel under construction.

Two of the hotel's elevators were out of service, three large pieces of plywood barricaded the open shaft to one of the broken lifts, the family alleged.

Andrew fell down that shaft after he leaned against the plywood, and the barrier gave way while he was waiting for the working elevator on the fourth floor.

Nancy Smith, the boy's mother, allegedly retained the Law Offices of James DeZao fka DeZao & Dibrigida LLC in July 2006 to represent the family in court.

DeZao filed the suit against Resort Condominiums Internationals Inc., on Jan. 26, 2007, but the complaint named only Nancy and husband Harold as defendants.

The couple was allegedly upset with the filing because it failed to include their other son Shawn as a plaintiff, based on the emotional distress he claims to have suffered while listening to his brother cry for help in the elevator shaft.

Shawn said he had continuous contact with his brother until the arrival of an ambulance that took Andrew to a hospital where he died in surgery that same day.

When DeZao moved to add Shawn as a plaintiff on Sept. 17, 2010, the presiding judge deemed the maneuver futile, saying the two-year statute of limitations had ended in 2008.

The Smith parents then retained a new lawyer on Dec. 3, 2010, and settled in 2012.

Shawn is now suing DeZao and his firm in Newark, N.J., for professional negligence, but discovery has snagged on the issue of alcohol Andrew allegedly consumed on the day he death.

Former counsel for Resort Condominiums produced a redacted investigative report from the case it settled with the Smith parents.

Unredacted text describes Harold's grief in the ambulance, noting his statement "that he was to blame for the incident, because he had authorized [Andrew] to drink alcohol in excess and thought that this accidence (sic) was a result of that."

Shawn argued that Dezao should not be allowed to take "a second bite of the apple" by conducting additional discovery on liability issues that were not established in the settled case.

But U.S. Magistrate Judge Joseph Dickson agreed to reopen discovery Jan. 26.

"What is ironic about plaintiff's current position is that at the time of the underlying trial, DeZao's failure to produce evidence of Andrew Smith's alleged alcohol consumption was in advantageous to the Smith family," Dickson wrote. "It would be patently unfair to allow plaintiff to bar defendant from using evidence of Andrew Smith's alleged alcohol consumption in this legal malpractice action. Mr. DeZao's alleged nonproduction is not the subject of this malpractice action. Although plaintiff attempts to persuade the court that the parties should be 'bound by the same evidence that would have been presented in the underlying action,' that is simply impossible because no evidence was presented in the underlying case. Because no trial conducted, it is impossible to know what would have been presented."

The unpublished opinion goes on to say: "Defendants shall be permitted to conduct discovery regarding Andrew Smith's alleged alcohol consumption. This discovery is not only a relevant factor, but necessary to the just outcome of this case given the comparative negligence defense."

Since the discovery may cause the Smith family to confront "intense emotional issues," however, Dickson ordered "the parties to meet and confer and determine how to proceed with discovery."

"Should the parties disagree as to how to proceed in light of the emotional toll on the Smith family, the parties may submit letters to the court outlining their disputes," Dickson added.

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