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Gharfeh v. Carnival Corp.

United States District Court, S.D. Florida, Miami Division

January 22, 2018

SAMIR GHARFEH, Plaintiff,
v.
CARNIVAL CORPORATION, et al., Defendants,

          ORDER ON DEFENDANT'S MOTION TO DISMISS

          JONATHAN GOODMAN UNITED STATES MAGISTRATE JUDGE.

         Defendant Carnival Corporation has filed a motion to dismiss the Complaint filed by Plaintiff Samir Gharfeh. [ECF Nos. 1; 12');">12');">12');">12]. Gharfeh filed an opposition response, and Carnival filed a reply. [ECF Nos. 22; 26]. For the reasons outlined below, the Undersigned grants the motion in small part and denies it in large part. Plaintiff has 14 days from the date of this Order to file an optional amended complaint.

         I. Factual and Procedural Background

         Gharfeh's lawsuit arises from a cruise he took as a passenger aboard the Carnival Freedom in February 2016. At bottom, it focuses on the care and treatment he received (or did not receive) while aboard the ship. Although the Complaint is comparatively long (at slightly more than 39 pages), the gist of it can be summarized succinctly:

         Gharfeh alleges that, during the cruise, he experienced lower abdominal pain consistent with his past flares of diverticulitis. The ship's medical staff and Carnival's shipboard physician, Defendant Catalina Carvajal, M.D., refused to provide Gharfeh's son, who is a physician, with antibiotics without a prior written prescription, so that he could give them to his father. Gharfeh alleges that he became febrile and that his blood pressure began to drop overnight. But both the medical center and Dr. Carvajal nevertheless refused to give Gharfeh's doctor son the appropriate antibiotics.

         Carnival's medical team ultimately transferred Gharfeh to the medical center, and Dr. Carvajal (a co-defendant who apparently has never been served with the Complaint and who has not filed a substantive response to it) diagnosed Gharfeh with a small bowel obstruction. Gharfeh once again became febrile and his blood pressure dropped overnight. After the ship docked in Galveston, Texas the next day, his vitals started to crash, and Dr. Carvajal put Gharfeh on pressors through a peripheral IV.

         Gharfeh was then transported to the University of Texas Medical Branch and was placed on a central line, intubated, and taken for a CT scan, which confirmed that he had perforated diverticulitis. Gharfeh alleges that Defendants' misdiagnosis and delay in proper treatment allowed the diverticulitis to “cause[] bowl [sic] perforation which in turn spread the infection into [his] gut causing septic shock” and resulted in a series of surgeries and complications. [ECF No. 1, pp. 17-18 ¶ 40].

         Gharfeh asserted five counts against Carnival: (1) Negligent Medical Treatment - Vicarious Liability (Count I); (2) Negligent Provisioning And Equipping of Medical Facility - Direct Liability (Count III); (3) Negligent Failure to Evacuate Passenger and/or Evacuate Passenger Appropriately - Direct Liability (Count IV); (4) Negligent Hiring, Selection, Retention, Monitoring, and Training of the Onboard Medical Staff - Direct Liability (Count V); and (5) Breach of Third Party Beneficiary Contract (Count VI). He also alleged a negligence claim against Dr. Carvajal under Count II.

         II. Carnival's Arguments in Support of its Motion to Dismiss

         First, Carnival argues that Count I should be dismissed for three reasons: (1) it improperly consolidates multiple claims into a single count, in violation of Federal Rule of Civil Procedure 10(b); (2) Gharfeh is improperly attempting to hold Carnival directly liable for the purported negligence of its onboard medical personnel and improperly imposing a non-existent duty to warn of the medical center's and staff's limitations; and (3) Gharfeh has failed to plead facts that might plausibly establish the existence of a joint venture between Carnival and its shipboard physicians and medical staff.

         Second, Carnival contends that Count II should be dismissed because a shipowner does not have a duty to provide its passengers with medical equipment or to promulgate and enforce policies or procedures concerning medical care.

         Third, Carnival says that Count III should be dismissed because Carnival did not have a duty to provide Gharfeh with medical transportation, to evacuate Gharfeh off of the ship, or to divert the ship.

         Fourth, Carnival argues that Count IV should be dismissed because (1) shipowners have no duty to monitor or train onboard physicians or medical staff and (2) Gharfeh has failed to allege ultimate facts supporting a claim for negligent hiring, selection, or retention.

         Fifth and finally, Carnival contends that Count V should be dismissed because Gharfeh cannot plausibly allege that Carnival breached the contracts with its shipboard physicians and medical staff, contracts that obligated the physicians and staff to provide medical care on the ship.

         III. Legal Standards

         In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12');">12');">12');">12(b)(6), a court must take as true all well-pleaded facts in the complaint and all reasonable inferences drawn from those facts. Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). “A pleading must contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). While detailed factual allegations are not always necessary in order to prevent dismissal of a complaint, the allegations must “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         A complaint cannot simply contain “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” or “an unadorned, the-defendant- unlawfully-harmed-me accusation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. Nor can a complaint just rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). Rather, “[t]o survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678. (quoting Twombly, 550 U.S. at 570) (emphasis added); see also Am. Dental Assoc. v. Cigna Corp., 12');">12');">12');">1283');">605 F.3d 12');">12');">12');">1283, 12');">12');">12');">1288-90 (11th Cir. 2010).

         Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Moreover, when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not “show[n]” -- “that the pleader is entitled to relief.” Id.

         While the court is required to accept as true all allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. “Dismissal pursuant to Rule 12');">12');">12');">12(b)(6) is not appropriate ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Magluta v. Samples, 375 F.3d 12');">12');">12');">1269, 12');">12');">12');">1273 (11th Cir. 2004) (quoting Conley, 355 U.S. at 45-46). Although, as noted, a court must accept as true a plaintiff's allegations, a court may dismiss a complaint on a dispositive issue of law. Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

         The “Shotgun Pleading” Rule

         Concerning the “shotgun pleading” rule -- a common defense challenge and one that Carnival is pursuing here -- the Eleventh Circuit provided a comprehensive guide to the applicable rules in Weiland v. Palm Beach County Sheriff's Office, 792 F.3d 1313 (11th Cir. 2015). Rule 8(a)(2) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” And Rule 10(b) further provides that “a party must state its claims or defenses in numbered paragraphs, each limited to a single set of circumstances.” Recognizing that courts sometimes used the term “shotgun pleading” to simply mean “poorly drafted complaint, ” the Weiland Court identified four types of shotgun pleadings. Weiland, 792 F.3d at 1321.

         The “unifying characteristic” of all categories of impermissible shotgun pleadings is “that they fail to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.” Id. at 1323.

         Only one category of “shotgun pleading” is at issue here: the third type, which “commits the sin of not separating into a different count each cause of action or claim for relief.” Id. at 1322-23; see Bickerstaff Clay Prods. Co. v. Harris Cty., 89 F.3d 1481, 1485 n.4 (11th Cir. 1996) (explaining that complaint was “a typical shotgun pleading” because “some of the counts present more than one discrete claim for relief”). A dismissal under Rules 8(a)(2) and 10(b) is appropriate “where ‘it is virtually impossible' to know which allegations of fact are intended to support which claim(s) for relief.” Weiland, 792 F.3d at 1325 (emphasis in original).

         Our Circuit very recently explained yet again the analysis required for shotgun pleadings in Vibe Micro, Inc. v. Shabanets, No. 16-15276, 2018 WL 268849 (11th Cir. Jan. 3, 2018). In that case, the Court noted that “Courts in the Eleventh Circuit have little tolerance for shotgun pleadings” because “[t]hey waste scarce judicial resources, inexorably broaden[] the scope of discovery, wreak havoc on appellate court dockets, and undermine[] the public's respect for the courts.” Id. at *2 (internal quotations omitted). The Court also explained that a district court's “inherent authority to control its docket and ensure the prompt resolution of lawsuits” includes the “ability to dismiss a complaint on shotgun pleading grounds.” Id.

         The Franza Case

         Both Gharfeh and Carnival extensively rely on Franza v. Royal Caribbean Cruises, Ltd., 12');">12');">12');">1225');">772 F.3d 12');">12');">12');">1225 (11th Cir. 2014), a comprehensive and detailed treatment of federal general maritime law applied in a medical malpractice setting. Franza rejected as “an outdated rule that serves no useful purpose in modern maritime law” a non-binding Fifth Circuit case that many district courts in this Circuit had relied on for several years in rejecting passengers' claims against cruise ships for medical malpractice under a respondeat superior theory of vicarious liability: Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1998). Franza, 772 F.3d at 12');">12');">12');">1248. After providing a nuanced historical summary and analysis of general maritime law and its application to medical negligence claims, Franza held: “we do not find that the arguments set forth in Barbetta justify its broad grant of immunity from vicarious liability in all claims of medical malpractice.” Id.

         The Franza Court further held that medical malpractice claims by passengers are also permissible under an apparent agency theory of liability, thus allowing a passenger to sue a shipowner for medical negligence “if he can properly plead and prove detrimental, justifiable reliance on the apparent agency of a ship's medical staff-member.” Id. at 12');">12');">12');">1249.

         In addition to discussing the legal viability of passengers' claims against shipowners in a medical malpractice context, Franza also discussed myriad policy reasons underlying its holding. Because both sides here rely so heavily on Franza and because that case analyzes and discusses many principles which apply here and which render some earlier district court evaluations inapplicable or unhelpful, a full discussion is appropriate.

         The appellate court succinctly outlined the facts:

In this maritime negligence dispute, an elderly cruise ship passenger fell and bashed his head while the vessel, the “Explorer of the Seas, ” was docked at port in Bermuda. The injured traveler, Pasquale Vaglio, was wheeled back onto the ship, where he sought treatment from the onboard medical staff in the ship's designated medical center. Over the next few hours, Vaglio allegedly received such negligent medical attention that his life could not be saved. In particular, the ship's nurse purportedly failed to assess his cranial trauma, neglected to conduct any diagnostic scans, and released him with no treatment to speak of. The onboard doctor, for his part, failed even to meet with Vaglio for nearly four hours. Tragically, Vaglio died about a week later. Now, Vaglio's daughter, appellant Patricia Franza, seeks to hold the cruise line, Royal Caribbean Cruises, Ltd. [], vicariously liable for the purported negligence of two of its employees, the ship's doctor and its nurse, under one of two theories: actual agency (also termed respondeat superior) or apparent agency.

Id. at 12');">12');">12');">1227-28.

         Franza also provided the procedural context in a ...


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