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Carnival Cruise Line v. Stankovic

United States District Court, S.D. Florida

April 7, 2017

CARNIVAL CRUISE LINE, Plaintiff,
v.
ZARCO STANKOVIC, Defendant.

          Edwin G. Torres, U.S. Magistrate Judge

          OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          MARCIA G. COOKE United States District Judge

         This is 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.

         I have jurisdiction under 28 U.S.C. § 1333 because the release is a maritime contract executed between a seaman and a vessel owner.

         Pending 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 the Motions.

         BACKGROUND

         Stankovic, 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).

         Upon 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).

         In 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).

         On 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 23).

         AmeriMed 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.).

         Stankovic 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).

         In late 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).

         Dr. 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 11).

         Dr. 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.[1] (Id. 31, 36).

         On 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.”[2] (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.[3] (ECF No. 57-10).

         Dr. Giorgio reviewed the report, but did not change his diagnosis. (ECF 57-6 at 17-18). He explained his thinking at his deposition:

[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).

         Dr. 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 had ...


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