United States District Court, S.D. Florida, Miami Division
LINDA J. EISENMAN, JULIE EISENMAN, and RYAN EISENMAN, Plaintiffs,
CARNIVAL CORPORATION, Defendant.
ORDER DENYING CARNIVAL CORPORATION'S MOTION TO
Lawrence King United States District Judge
MATTER is before the Court on Defendant Carnival
Corporation's Motion to Dismiss, filed July 25, 2019 (DE
10) (the "Motion"). The Court has also considered
Plaintiffs' Response in Opposition (DE 14) and
Carnival's Reply Memorandum in Support of the Motion (DE
17), and heard oral argument on the Motion on November 14,
bring this maritime wrongful death action against Carnival
asserting claims for (1) negligence under the Death on the
High Seas Act, 46 U.S.C. §§ 30301-30308
("DOHSA") (Counts I through IV) and (2) intentional
infliction of emotional distress (Counts V through VII).
According to the allegations in the Complaint, on December 1,
2018, Linda Eisenman and her husband Jeffrey Eisenman boarded
Carnival's Sunshine vessel with their children
(Plaintiffs Julie and Ryan) for a cruise from Florida to the
Caribbean. (See Compl. ¶ 12, DE 1.) On the
morning of December 3, 2018, the ship docked in Grand Turk.
(Id. ¶ 13.) At around 1:00 p.m., Jeffrey became
ill and had to be taken to the ship's medical center in a
wheelchair. (Id.) The ship physician "quickly
diagnosed [Jeffrey] as having suffered a major heart
attack," and told the Eisenmans that he "would need
to be flown to Miami because Grand Turk hospital was not
equipped with a cardiac unit." (Id.
¶¶ 14-15.) The ship was still docked in Grand Turk
at the time, which has an international airport with flights
to Miami. (Id. ¶ 16.)
just before 4:00 p.m., the ship physician came back into the
medical center, and announced that Jeffrey could not get off
the ship because someone else had to be medically
-disembarked first. (Id. ¶ 17.) The Eisenmans
begged and pleaded with Carnival to let them off the ship in
Grand Turk because the physician had "told them that
time was of the essence." (Id. ¶ 18.) They
also explained that they had purchased insurance to cover an
air evacuation in the event of a medical emergency.
(Id. ¶ 19.) Also, according to Carnival's
"Passenger Bill of. Rights," all cruise passengers
have the "right to disembark a docked ship if essential
provisions such as .. . medical care cannot adequately be
provided onboard." (Id. ¶ 20.)
Nonetheless, Carnival refused to let the Eisenmans off the
ship, and instead decided to set sail for San Juan, Puerto
Rico-a 21-hour journey by sea farther away from the United
States. (Id. ¶ 17.)
sea, Jeffrey's condition continued to decline.
(Id. ¶ 22.) He lost consciousness and began
having respiratory problems. (Id.) "His family
watched on in agony as he slowly slipped away."
(Id.) Almost twelve hours after the ship left Grand
Turk, Jeffrey went into cardiac arrest. (Id.
¶24.) Jeffrey Eisenman died onboard while confined to
the ship's medical center. (Id.) In a state of
devastation and distress, Linda and Julie Eisenman left the
ship when it arrived in" Puerto Rico. (Id.
¶ 27.) The Complaint alleges that they "suffered
extreme emotional distress at being confined on the vessel
against their will following the onset of Jeffrey
Eisenman's medical emergency." (Id.) Ryan
Eisenman stayed on the ship with his father's body as
Carnival finished its eleven-day cruise. (Id.
¶¶ 28, 72.)
12, 2019, Plaintiffs filed this action alleging that Jeffrey
Eisenman's death resulted from the negligence of Carnival
and its medical and non-medical personnel (Counts I through
IV). Plaintiffs also assert claims for intentional infliction
of emotional distress in their individual capacities,
alleging that Carnival's conduct was "extreme and
outrageous" and caused them to suffer severe emotional
distress (Counts V through VII). Carnival now moves to
dismiss the Complaint for failure to state a claim. (See
generally Mot., DE 10.) Carnival argues that the
emotional distress claims should be dismissed because (a)
they are preempted by DOHSA, and (b) Carnival's conduct
was not sufficiently "outrageous" to state a claim.
(Id. at 3.) Carnival also argues that the negligence
claims should be dismissed as improper "shotgun"
pleadings that group multiple theories of liability in each
the motion to dismiss stage, a court does not reach the
merits of the suit, only the sufficiency of the
complaint." Elbaz v. Royal Caribbean Cruises, Ltd.,
No. 16-24568, 2017 WL 3773721, at *1 (S.D. Fla. Jan. 12,
2017) (citing Levy v. City of Hollywood, 90
F.Supp.2d 1344, 1345 (S.D. Fla. 2000)). In ruling on a motion
to dismiss, the court must accept the factual allegations in
the complaint as true and construe them in the light most
favorable to the plaintiff. See Brooks, 116 F.3d at
1369. To survive a motion to dismiss, a complaint must
include "enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A "claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiffs' Emotional Distress Claims Are Not Barred By
was enacted to provide "a uniform and effective wrongful
death remedy for survivors of persons killed on the high
seas." Offshore Logistics, Inc. v. Tallentire,
477 U.S. 207, 214(1986). The Act applies "[w]hen the
death of an individual is caused by wrongful act, neglect, or
default occurring on the high seas beyond 3 nautical miles
from the shore of the United States." 46 U.S.C. §
30302. DOHSA limits recovery to "the
pecuniary loss sustained by the individuals for whose benefit
the action is brought." Id. § 30303. The
Supreme Court has held that DOHSA "announces
Congress' considered judgment" on issues such as
damages in maritime wrongful death cases, Mobil Oil Corp.
v. Higginbotham, 436 U.S. 618, 625 (1978), and
"does not authorize recovery for the decedent's own
losses, nor does it allow damages for nonpecuniary
losses," Dooley v. Korean Air Lines Co., 524
U.S. 116, 122 (1998).
argues that DOHSA bars Plaintiffs' emotional distress
claims because they seek nonpecuniary damages (i.e.,
emotional distress damages) for the same conduct that caused
Jeffrey Eisenman's death on the high seas. Carnival
relies primarily on Howard v. Crystal Cruises, Inc.,
No. 91-642, 1992 WL 194659 (E.D. Cal. Mar. 13, 1992), and
Rux v. Republic of Sudan, 495 F.Supp.2d 541 (E.D.
Va. 2007). But Howard and Rux are both
distinguishable as the plaintiffs in those cases were
claiming emotional distress based solely on the death of
their loved ones on the high seas, not on the events
surrounding the death as personally experienced by them. In
Howard, for instance, a passenger injured his ankle
while deboarding the ship and later died when a blood clot
traveled to his lungs. Howard, 1992 WL 194659, at *
1. When his surviving family members moved to add. claims for
negligent infliction of emotional distress, the court denied
the motion and found that the claims were "clearly
precluded under DOHSA." Id. at *6. However,
unlike this case, there were "no allegations  of any
other specific, emotionally-traumatizing event witnessed by
the decedent's survivors beyond the loss of the
decedent." Martins v. Royal Caribbean Cruises
Ltd., 174 F.Supp.3d 1345, 1352 n.5 (S.D. Fla. 2016).
Similarly, in Rux, family members of the sailors who
were killed by the October 2000 terrorist bombing of the
U.S.S. Cole brought emotional distress claims against the
Republic of Sudan stemming from the attack that killed their
loved ones. Rux, 495 F.Supp.2d at 543. After a
nonjury trial, the court found that the plaintiffs'
claims were preempted by DOHSA where the emotional distress
stemmed directly from learning of the deaths of their loved
ones. See Id. at . 565; Martins, 174
F.Supp.3d at 1352. Here, by contrast, the Eisenmans are
claiming emotional distress based upon the totality of events
surrounding Jeffrey Eisenman's death, which they
experienced firsthand. This goes beyond merely learning of
the death of their loved one.
as Plaintiffs point out, several cases from this district
have allowed family members to "sue for "emotional
distress that is not the anguish of loss, but rather
the anguish of the events leading to the loss as directly and
personal experienced by the plaintiffs."
Martins, 174 F.Supp.3d at 1353; see also Blair
v. NCL (Bahamas) Ltd.,212 F.Supp.3d 1264 (S.D. Fla.
2016) (Seitz, J.); Smith v. Carnival Corp., 584
F.Supp.2d 1343 (S.D. Fla. 2008) (Moore, J.). For example, in
Smith, two daughters who had witnessed their mother
drown during a snorkel trip excursion in the Cayman Islands
sued the cruise line for wrongful death and negligent
infliction of emotional distress. Smith, 585
F.Supp.2d at 1345. In denying the cruise line's motion to
dismiss, the court explained that the daughters were
"not seeking recovery for their mother's death or
her pre-death pain and suffering-only for the emotional
distress that has resulted from witnessing it. Indeed, the
fact that a death occurred is not essential to their
claim." Id. at 1353. As such, the court
explained, the claims did "not fall within DOHSA's
ambit, and  can hardly be said to represent
'Congress' considered judgment' on the
issue." Id. (quoting Higginbotham, 436
U.S. at 625); see also Martins, 174 F.Supp.3d at
1353 (denying motion to dismiss where mother sued cruise line
after witnessing daughter die from eating bacteria-ridden
food and ship failed to evacuate her for medical care,
explaining that the mother's claims were not just based
on "the ...