US agrees to pay boating accident survivor $875,000

(CN) — The federal government agreed to shell out $875,000 to a man stranded by the U.S. Coast Guard for six hours after his boat sank in the waters of Deception Pass in northwestern Washington state in 2019.

The consent judgment comes two days after the Michael Powers' attorneys requested sanctions against the government for withholding vital discovery documents for more than a year before attempting to dismiss the negligence case. Those documents might have drastically altered the course of the case earlier, Powers' attorneys argued.

On May 2, 2019, Powers' boat sunk in the frigid waters of Deception Pass. He waited for six hours after an initial emergency call was made to the U.S. Coast Guard, which called off all rescue operations, stating there was “no vessel in distress," until he was ultimately rescued by a passing fishing boat. Powers' cousin, who was on the boat with him that day, died in the water.

In a motion hearing on Feb. 4, Senior U.S. District Judge Thomas Zilly struck down both the government’s motion to dismiss and Powers’ motion for partial summary judgment, leading to speculation that the case may find its way to trial next month.

The government argued the case should be thrown out under the Suits in Admiralty Act, claiming it had not waived its sovereign immunity and had not consented to be sued. Judge Zilly rejected this argument, although he also passed on Powers’ motion to avoid trial because the U.S. Coast Guard does not have a policy mandating it to rescue members of the public or to abide by a certain standard of care.

But then the tides changed.

“On February 7, 2023, the United States produced critical documents that it wrongfully withheld from plaintiff for over a year and supplemented its privilege log with thirty-five responsive documents,” Powers' Feb. 7 sanctions motion states.

According to his attorney, Sara Leonetti, the government’s recent production of documents revealed that it engaged in a “pattern of abusive discovery tactics” that put Powers at a severe disadvantage during litigation.

For starters, sanctions motion outlines how the Coast Guard deleted requests for documents from its responsive pleading without notice and how the government responded to Leonetti’s motions to compel by stating she “could not move to compel something she had never asked for and directed her to point to a discovery request for such communications.”

“On October 12, 2022, Plaintiff’s counsel learned that the government had actually deleted RFP Nos. 12 and 13, and that RFP 12 covered internal communications and correspondence concerning the incident and alerted DOJ counsel,” Leonetti wrote, adding that on Oct. 17, government attorneys responded stating they would take immediate steps to remedy the problem.

The documents didn’t come through for nearly four months.

Leonetti also wrote the government withheld information that refuted its motion to dismiss on discretionary function immunity grounds and supported Powers’ motion for summary judgment. That information came in the form of a PowerPoint presentation from Coast Guard personnel regarding the case in 2019 and walks through “what the Coast Guard did wrong,” focusing on topics like anchoring bias, groupthink, status quo bias, attribution error and introspection illusion.

By withholding the presentation, Leonetti argued the government hid evidence involving the “two prongs of the discretionary function exception: whether the alleged negligent conduct was discretionary and whether it was susceptible to policy-based considerations.”

Additional grievances included how the late disclosure prevented deposition opportunities, how Coast Guard witnesses evaded deposition questions or gave misleading answers, timeline inconsistencies over Coast Guard official MISLE log corrections and the fact that the government continued to withhold 35 responsive documents as of Feb. 7.

On Feb. 13, Judge Zilly held a telephone conference during which the government advised the court an agreement had been reached. Zilly granted the joint motion for the consent judgment on Wednesday, where the U.S. agreed to pay Powers $875,000 without interest, with each party to bearing its own fees and costs.

Neither Leonetti nor U.S. Department of Justice Attorney Franklin Anders immediately responded to a request for comment.

Follow @alannamayhampdx

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