IN CRUISE SHIP PASSENGER ACTION WHERE SEVERAL PASSENGERS ALLEGED NOROVIRUS AND/OR GASTROINTESTINAL ILLNESS DUE TO UNSANITARY CONDITION ONBOARD DEFENDANT’S VESSELS, SUMMARY JUDGMENT ENTERED WHERE PLAINTIFFS FAILED TO PROVIDE EVIDENCE OF CAUSATION.
Tom HUBBERT, et al., Plaintiffs, v. CARNIVAL CORPORATION, Defendant.
2013 WL 4806908 United States District Court, S.D. Florida.
No. 12-23829-CIV. Sept. 9, 2013.
PROCEDURAL POSTURE:
Before the Court was Defendant’s Motion for Summary Judgment
OVERVIEW:
Plaintiffs Tom Hubbert, Linda Hubbert, Billy Ray Kidwell, Tana Kidwell, and Hannah Kidwell (collectively “Plaintiffs”) commenced this action against Defendant Carnival Corporation (“Defendant”) on October 19, 2012. Plaintiffs contend that while taking a cruise on the Carnival Legend from October 23, 2011 through October 30, 2011, they were subjected to “filthy, unsafe, conditions” which included contaminated water and food. As a result of the unsanitary conditions aboard the Legend, Plaintiffs claim to have suffered from gastrointestinal illness or Norovirus for the duration of the cruise and the two weeks thereafter. Plaintiffs assert that Defendant was aware that its ship had contaminated potable water, recreational water, dishwashers, and pot washers which posed risks to the Plaintiffs and that these unsanitary conditions were likely to cause them severe illness. As a result of the unsanitary conditions aboard the ship, Plaintiffs bring claims against Defendant relating to passenger ticket fraud (Count 1), vacation warranty fraud (Count 2), Center for Disease Control (“CDC”) vessel sanitation fraud (Count 3), intentionally causing Plaintiffs’ illness for financial gain (Count 4), and theft of Plaintiffs’ property (Count 5). In addition to compensatory damages, Plaintiffs request punitive damages. Defendant has now moved for summary judgment. Plaintiffs oppose the Motion. Defendant first argues that it is entitled to summary judgment because Plaintiffs have failed to produce any evidence to support their claim that Carnival caused their gastrointestinal illnesses. Specifically, Defendant contends that Plaintiffs “have provided no evidence whatsoever to verify their claim that their alleged illnesses even occurred let alone proof that any alleged illness was caused by Carnival.” Defendant argues that Plaintiffs must provide expert medical testimony to establish that its actions caused Plaintiffs’ illnesses. In opposition, Plaintiffs rely on certain CDC inspection reports which they contend establish that Defendant knew the conditions aboard the Legend were unsanitary. The Court agrees with Defendant that Plaintiffs have failed to provide the Court with any evidence, other than their own conclusory assertions, that they actually suffered any gastrointestinal illnesses. Because the record is devoid of any evidence that Defendant caused Plaintiffs’ alleged illnesses, Defendant is entitled to summary judgment. Defendant also moves for summary judgment on each of Plaintiffs’ fraud claims because Plaintiffs have failed to produce any evidence to support these claims. As Defendant points out in its Reply, Plaintiffs’ Response fails to address their fraud claims on the merits. For this reason alone, summary judgment is proper because Plaintiffs have abandoned these claims. Even if Plaintiffs had not abandoned their fraud claims, Defendant would still be entitled to summary judgment because Plaintiffs have failed to produce any evidence which supports these claims. Finally, Defendant moves for summary judgment on Plaintiffs’ claim that Defendant stole their property. According to Defendant, Plaintiffs Tana Kidwell and Billy Ray Kidwell’s claim regarding $1,300 to $1,400 of stolen merchandise is barred by the express language of the passenger ticket contract. The ticket contract provides that Defendant is not liable for theft claims unless legal proceedings are commenced within six months after the date the guest landed from the cruise. Because Plaintiffs did not commence this action until October 19, 2012, well after the six month statute of limitations provided under the ticket contract had expired, Defendant contends that it is entitled to summary judgment on this claim. Id. The Court agrees. Plaintiffs’ Response fails to address their claim for stolen property. Thus, summary judgment is appropriate for Defendant because Plaintiffs have abandoned this claim. Summary judgment is also appropriate for Defendant because Plaintiffs have failed to produce any evidence regarding the merchandise which was allegedly stolen from them. Additionally, because the six month statute of limitations provided in the ticket contract had expired prior to the commencement of this action, Plaintiffs’ claim is time barred.
OUTCOME:
Defendant’s Motion for Summary Judgment is GRANTED.
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LOUISIANA DISTRICT COURT HELD A JONES ACT SEAMEN IS NOT ENTITLED TO PUNITIVE DAMAGES FOR GROSS NEGLIGENCE AND UNSEAWORTHINESS BASED ON COURT’S HOLDING THAT SUPREME COURT’S 2009 DECISION IN ATLANTIC SOUNDING IS LIMITED TO CLAIMS FOR MAINTENANCE AND CURE.
Danny TODD v. CANAL BARGE COMPANY, INC.
2013 WL 5410409 United States District Court, E.D. Louisiana.
Civil Action No. 13-339. Sept. 25, 2013.
PROCEDURAL POSTURE:
The Court has pending before it Defendant’s motion to dismiss Plaintiff’s punitive damages claims as they apply to gross negligence and unseaworthiness under the general maritime law.
OVERVIEW:
This case arises out of an injury that Plaintiff Danny Todd allegedly sustained while he was employed by Defendant Canal Barge Company, Inc. as a Jones Act seaman. According to Todd, on November 9, 2012, he experienced “serious painful injuries to his back and other parts of his body” while he was working aboard M/V ELIZABETH LANE. Plaintiff seeks punitive damages for any gross negligence of Canal Barge, or unseaworthiness of the vessel as may be allowed under general maritime law. Canal Barge filed a motion to dismiss Todd’s punitive damages claims as they apply to his allegations of gross negligence and unseaworthiness. Canal Barge argues that “a seaman may not recover punitive damages for negligence under the Jones Act or for unseaworthiness under the General Maritime Law under Miles v. Apex and its progeny….” In opposition, Todd argues that a seaman may bring a claim for punitive damages under general maritime law, even if such a claim is barred by the Jones Act. According to Todd, “[i]n recent years the United States Supreme Court has clearly held that punitive damages are recoverable under general maritime law.” (Rec. Doc. 19 at 3). Todd argues that the applicability of punitive damages in the present case should be governed by the Supreme Court’s decision in Atlantic Sounding v. Townsend, 557 U.S. 404 (2009). There, the Court held that a seaman was entitled to seek punitive damages under general maritime law for an employer’s “willful and wanton disregard of the maintenance and cure obligation.” Id. at 424. Todd would extend this concept to his injury claims resulting from gross negligence or unseaworthiness. The issue presented by the present case is whether theAtlantic Sounding decision is limited to maintenance cases or whether it pertains to all claims brought under the general maritime law, particularly those seeking recovery for gross negligence and unseaworthiness. Plaintiff wants this Court to read the Supreme Court’s holding in Atlantic Sounding broadly to include all claims brought under the general maritime law, including claims based on gross negligence and unseaworthiness. This result would be inconsistent with Miles, and the Court in Atlantic Sounding emphasized that “[t]he reasoning of Miles remains sound.” Id. at 420. Atlantic Sounding did not overrule Miles. Miles is still good law. Therefore, a way must be found to determine the scope of punitive damages in general maritime law by giving both cases effect. An analysis of the difference between the theoretical basis of a maintenance and cure claim on the one hand and a gross negligence and unseaworthiness claim on the other may provide an acceptable answer. The court held that in an effort to give effect to both Miles and Atlantic Sounding, it is reasonable to conclude that the holding in Atlantic Sounding is limited to the quasi-contract claims for maintenance and cure and is not applicable to the tort claims for gross negligence or unseaworthiness, which are dealt with by either the Jones Act or Death on the High Seas Act. Therefore, the Plaintiff’s claims under the general maritime law for punitive damages for gross negligence and unseaworthiness in the present case must be dismissed since they are non-pecuniary.
OUTCOME:
Defendant’s motion to dismiss Plaintiff’s punitive damage claim for negligence and unseaworthiness is GRANTED.
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SUMMARY JUDGMENT ENTERED AGAINST CRUISE SHIP PASSENGER WHERE CLAIMED INJURY WAS ATRIAL FIBRILLATION ALLEGEDLY CAUSED BY EXPOSURE TO PAINT FUMES, BECAUSE PLAINTIFF COULD NOT PROVE CAUSATION, PARTICULARLY AFTER THE DISTRICT COURT STRUCK HER CAUSATION EXPERT UNDER DAUBERT.
Sherrilyn DOMINIQUE, Plaintiff, v. HOLLAND AMERICA LINE, N.V., et al., Defendants.
2013 WL 5437436 United States District Court, W.D. Washington, at Seattle.
No. C12-78RSL. Sept. 27, 2013.
PROCEDURAL POSTURE:
In cruise ship passenger negligence action, Cruise line moved for summary judgment and to exclude Plaintiff’s expert witness regarding causation.
OVERVIEW:
Plaintiff brings a negligence claim against HAL for the atrial fibrillation she experienced shortly after taking a cruise operated by HAL. The final night of the cruise, Plaintiff and her friend were returning to their cabin after dinner when they smelled fumes in the hallway. Plaintiff called the front desk and a cruise receptionist informed her that it was likely paint she was smelling. Earlier that day crewmembers painted a service room on a lower deck and as a result, the smell of paint was present in a few cabins. The receptionist told Plaintiff that the smell should dissipate soon. After a few minutes of packing, Plaintiff left the cabin to attend a few musical performances. When she returned to her room around 11:00 p.m. she could still smell the fumes. A crewmember fumigated her cabin and Plaintiff fell asleep shortly thereafter. A few hours later Plaintiff woke up feeling nauseous. She spent the rest of the night in a different cabin. Plaintiff was still feeling nauseous when she woke up in the morning so she went to the infirmary. She declined an offer to see the doctor, but requested imodium for her stomach. Later that day, while waiting for her flight home at the San Diego Airport, Plaintiff had a rapid heartbeat and felt nauseous. She was admitted to a hospital in San Diego where she was diagnosed with atrial fibrillation, a type of cardiac arrhythmia. She was discharged from the hospital the following day and flew home to Santa Cruz, California. The parties agree that in a toxic tort case, a plaintiff must show both that she was exposed to chemicals that could have caused the injuries of which she complains (general causation) and her exposure did in fact actually cause those injuries (specific causation). Thus, to survive the underlying motion for summary judgment Plaintiff must show that exposure to the chemicals in the paint is capable of causing atrial fibrillation and exposure to the paint on the cruise did in fact cause her atrial fibrillation. Defendant moved to exclude Plaintiff’s Experts testimony regarding causation. Defendants seek to exclude Dr. Richwald’s testimony and report because Dr. Richwald fails to address general causation, specific causation and Plaintiff’s dose response. More specifically, Defendants contend that Dr. Richwald’s failure to explain the exposure level at which the chemical solvents in the paint become toxic and his failure to identify the amount of chemical solvents to which Plaintiff was actually exposed make his opinions unreliable. Id at 13. Court found that Dr. Richwald did not rely on any independent research or specific studies to support his conclusions that Plaintiff was exposed to toxic amounts of chemical solvents and this exposure in fact caused her atrial fibrillation. There is no suggestion that he relied on any data particular to Plaintiff. His report also fails to show whether or how he used differential diagnosis to reach his ultimate conclusions. Contrary to Plaintiff’s argument, Dr. Richwald does not actually “consider” alternative causes of Plaintiff’s atrial fibrillation. The Court, therefore, finds Dr. Richwald’s differential diagnosis lacks sufficient substantive analysis to be considered reliable under Daubert. Because the Court excluded Plaintiff’s proposed causation expert witness, Dr. Richwald, court held that Plaintiff has failed to provide sufficient admissible evidence to meet the burden of proof on her negligence claim. Absent evidence of the extent of exposure or specific causation, Plaintiff cannot make out a case of negligence.
OUTCOME:
For all of the foregoing reasons, the Court GRANTS HAL’s motion in limine to exclude Dr. Richwald and Dr. Bradman (Dkt.# 16), GRANTS HAL’s motion for summary judgment (Dkt.# 19), and DENIES Plaintiff’s motions limine (Dkt.# 20, 25) as moot.
