United States District Court, S.D. Florida
G. Torres, U.S. Magistrate Judge
OMNIBUS ORDER ON MOTIONS FOR SUMMARY
G. COOKE United States District Judge
an action in which Plaintiff, Carnival Cruise Line
(“Carnival”), seeks a declaratory judgment that a
release it entered into with one of its crewmembers,
Defendant Zarko Stankovic, is valid and binding. Stankovic,
who believes he was a victim of medical malpractice for which
Carnival is liable, has filed counterclaims asserting,
inter alia, that the release is invalid because
Carnival procured it through fraud.
jurisdiction under 28 U.S.C. § 1333 because the release
is a maritime contract executed between a seaman and a vessel
are (1) Carnival's Motion for Summary Judgment (ECF No.
57), and (2) Stankovic's Motion for Partial Summary
Judgment (ECF No. 73). For the reasons that follow, I deny
a United States citizen of Macedonian decent (ECF No. 73-1
¶ 1), worked as a headwaiter for Carnival from 2002 to
2006. (ECF No. 57-1 at 10-11). In early 2005, he noticed that
his left testicle was larger than his right. (Id. at
12). He visited the ship's physician on the Carnival
Pride, who referred him to a shore-side urologist at
the AmeriMed Hospital (“AmeriMed”) in Puerto
Vallarta, Mexico. (Id.). The AmeriMed urologist
diagnosed Stankovic with varicocele, an enlargement of the
veins within the scrotum. (Id. at 13; ECF No. 57-2).
The urologist at AmeriMed also discovered a ten-millimeter
cyst in Stankovic's right epididymis, the sperm duct
behind his right testicle. (ECF No. 57-2).
learning this news, Stankovic travelled to Macedonia to
consult a urological surgeon, Dr. Ljupco Levovski, who
confirmed the varicocele diagnosis. (ECF No. 57-3). Dr.
Levoski performed a laparoscopic ligation of the enlarged
scrotal vein in Stankovic's left testicle, which repaired
the varicocele. (ECF 57-1 at 10-11). Following a period of
recovery, Stankovic returned to work on the Pride.
(Id. at 10).
December 2005, after returning to work, Stankovic discovered
blood in his semen and felt a burning pain in his right
testicle. (Id. at 17). The ship's physician
again referred him to AmeriMed for urological treatment.
(ECF. No. 57-4). The AmeriMed urologists suspected that
Stankovic suffered from acute epididymitis, an inflammation
of his right epididymis. (Id.). They initially
treated him with antibiotics, but observed no change in the
paratesticular mass. (Id.; ECF No. 57-1 at 20). The
ineffectiveness of the antibiotics raised a concern that the
mass in Stankovic's right testicle might be malignant.
(ECF No. 57-4).
December 24, 2005, Dr. Pedro Lopez Cueto Espinosa performed a
surgical exploration on Stankovic, possibly to remove the
paratesticular mass or, if there was a malignancy, the entire
right testicle. (Id.). Dr. Espinosa explained the
possible outcomes of the surgery to Stankovic, who gave his
consent for the procedure. (Id.; ECF 57-11 at 21).
Dr. Espinosa performed the exploration, and determined that
Stankovic's right testicle required removal. (ECF 57-1 at
sent Stankovic's testicle for biopsy. (ECF No. 57-5). The
results led Stankovic's physicians to diagnose him with
“[l]ymphoma of big cells, with plasmacytoid
differentiation of right epididymis, high degree of
malignancy. In the limited testis tissue and spermatic cord
are free affection.” (Id.). It was
Stankovic's first cancer diagnosis. (Id.).
re-boarded the Pride after his surgery, and on
January 1, 2006, Carnival medically signed him off for
further cancer treatment. (ECF No. 57-1 at 26). This time, he
met with Dr. Anthony Giorgio at the Little Company of Mary
San Pedro Hospital in San Pedro, California. (ECF No. 57-1 at
27; ECF No. 57-6 at 8). Dr. Giorgio is a licensed,
board-certified physician specializing in oncology,
hematology, and internal medicine. (ECF 57-6 at 7, 96-97).
Dr. Giorgio discussed with Stankovic the test results from
his prior treatment at AmeriMed Hospital in Mexico. (ECF 57-1
at 27). He told Stankovic that he had stage IV
non-Hodgkin's lymphoma. (ECF No. 57-1 at 29; ECF No. 57-6
at 12). Given that diagnosis, Dr. Giorgio estimated that
Stankovic's five-year survival rate was 60-70%. (ECF No.
57-6 at 19).
January 2006, Dr. Giorgio obtained a second pathology report
on Stankovic's testicle. (ECF No. 57-7). The report
supported Dr. Giorgio's cancer diagnosis, stating that
Stankovic suffered from “[d]iffuse B-cell lymphoma
involving testis and epididymis.” (Id.). Dr.
Giorgio also microscopically reviewed Stankovic's biopsy
material himself, observing that Stankovic's cells
“showed to [him] that this was lymphoma.” (ECF
No. 57-6 at 10-11). He then performed “a CAT scan,
which showed pulmonary nodules, and a PET scan, which showed
a cancerous active lymph node in the right parotid
region.” (Id. at 12).
Giorgio submitted Stankovic's cancer diagnosis to the
hospital's tumor board for review. (Id. at 11).
The board includes surgeons, oncologists, and radiation
therapists at the facility, and convenes to discuss all
cancer cases at the hospital. (Id. at 63-64). After
reviewing Stankovic's medical records, the board agreed
with Dr. Giorgio's lymphoma diagnosis. (Id. at
Giorgio's treatment plan for Stankovic was “six
courses of combination chemotherapy, followed by external
beam radiation therapy, followed by intrathecal chemotherapy
- that's chemotherapy delivered into the spinal fluid -
to prevent the lymphoma from growing in the central nervous
system.” (Id. at 12). Although Dr. Giorgio
explained the treatment plan to Stankovic (ECF 57-1 at 33),
Stankovic asserts that he does not remember specific
conversations with Dr. Giorgio regarding his pathology
reports or blood tests. (Id. 31, 36).
March 15, 2006, the pathologists at San Pedro Hospital sent
Stankovic's biopsy material to South Miami Hospital for
further pathology studies, a gene rearrangement analysis and
immunohistochemcial analysis. (Id. at 72; ECF No.
57-8; ECF No. 57-9). South Miami Hospital pathologists
consulted with pathologists at the University of Miami to
conduct their analysis. (ECF No. 73-4). In short, the gene
rearrangement study and immunohistochemical analysis
“exploit the antigenticity of a tumor, the ability to
make and label an antibody to that tumor cell and identify it
under the microscope.” (ECF No. 57-6 at 123).
Pathologists conducted the tests, and believed that the
results “favor[ed] a chronic inflammatory process
rather than a malignant lymphoma.” (ECF No. 57-8).
Carol Ceruzzi, Carnival's Crew Medical Coordinator at the
time, received the new pathology report and forwarded it to
Dr. Giorgio. (ECF No. 57-10).
Giorgio reviewed the report, but did not change his
diagnosis. (ECF 57-6 at 17-18). He explained his thinking at
[A] special, highly technical assessment of the mixture of
cells obtained with his testicular biopsy did not discredit
the diagnosis because so many different types of cells were
examined. And since I have seen, as well as two other
pathologists have seen, the individual cells which were
clearly lymphoma cells, the gene rearrangement study did not
exclude that diagnosis.
(Id. at 18).
Giorgio also testified, “[p]athologists don't
always agree, but when being wrong is a death sentence, you
are going to definitely err on the side of treatment. You
don't want to be wrong. And if you are wrong, the outcome
is indisputable. This is a lethal cancer. Without treatments,
patients succumb routinely.” (Id. at 124-25).
He claims he was “absolutely positive” Stankovic