December 05, 2011
Giovanna Settimi Caraffa vs. Carnival Corp.
Response to Motion for Summary Judgment
In this seaman’s jones act and wrongful death claim, the Plaintiff has alleged that the seaman died as a result of exposure to asbestos on Carnival vessels. Carnival moved for judgment on the pleadings claiming that the Plaintiff had not produced enough evidence of asbestos exposure to allow the case to be brought to trial. In this response, the Plaintiff counters Defendant’s arguments by explaining to the court the appropriate body of maritime law that applies to this case and by demonstrating that the evidence produced by the Plaintiff meets the standards required by that body of law.
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO. 06-00964 CA 42
GIOVANNA SETTIMI CARAFFA, individually
and as personal representative of the estate of
BENEDETTO EMANUELE CARAFFA,
PLAINTIFF’S PRELIMINARY RESPONSE WITHOUT THE BENEFIT OF PENDING REQUESTED DISCOVERY, IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; AND MOTION FOR REHEARING AND/OR RECONSIDERATION REGARDING PLAINTIFF’S MOTION TO CONTINUE THE HEARING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT UNTIL THE COMPLETION OF PENDING DISCOVERY
Plaintiff, Giovanna Settimi Caraffa, hereby files her preliminary response without the benefit of pending requested discovery, in opposition to Defendant, Carnival Corporation’s Motion for Summary Judgment Regarding Exposure, and for good cause relies on the following.
THERE IS SIGNIFICANT PENDING DISCOVERY THAT GOES DIRECTLY TO THE ARGUMENTS RAISED IN CARNIVAL’S MOTION, AND CONTROLLING PRECEDENT IS CLEAR THAT THE ENTRY OF SUMMARY JUDGMENT IN SUCH A SITUATION IS PREMATURE. NONETHELESS, CARNIVAL’S MOTION FAILS BECAUSE IT RELIES ON PRODUCTS LIABILTY LAW. THIS IS NOT A PRODUCTS LIABILITY ACTION, IT IS A JONES ACT CLAIM. PLAINTIFF HAS PUT FORTH AMPLE EVIDENCE TO SHOW THAT MR. CARAFFA WAS EXPOSED TO ASBESTOS ON CARNIVAL VESSELS AND THAT THIS EXPOSURE CAUSED HIS DEATH.
Benedetto Caraffa was an Italian Seaman who worked on Carnival Vessels for approximately 15 years (1985-2000). The Plaintiff alleges that throughout this time period, Carnival exposed Mr. Caraffa to asbestos, which ultimately caused pulmonary cancer and led to his untimely death.
On November 8, 2011, Carnival filed its Motion for Summary Judgment regarding Exposure. Therein, Carnival argues they are entitled to summary judgment on causation because “Plaintiff cannot prove that Carnival’s actions or inactions were the proximate cause of the damages she is claiming.” Carnival’s Motion, p. 10. Carnival’s Motion for Summary Judgment fails for several reasons. First, there is significant pending discovery that goes directly to the issues of exposure and causation. And controlling precedent holds “where discovery is still pending, the entry of Summary Judgment is premature.” Payne v. Cudjoe Gardens Property Owners Assoc. Inc., 837 So. 2d 458 (Fla. 3d DCA 2002)(emphasis added).
Second, the case law relied upon by Carnival throughout its Motion is inapplicable to the instant matter. Carnival’s Motion is predicated on ‘products liability’ case law, despite the fact that this is a Jones Act claim. In short, as set forth below, the law regarding products liability sets a drastically different standard than that of a Jones Act claim.
Lastly, for the sake of argument, even though discovery has not yet been completed, Plaintiff has ample record evidence of the presence of asbestos onboard Carnival’s vessels; exposure to said asbestos; and that said exposure caused the cancer that led to his untimely death. Accordingly, Carnival’s Motion for Summary Judgment should be denied in its entirety.
II. RENEWED MOTION TO CONTINUE THE HEARING ON THE INSTANT SUMMARY JUDGMENT MOTION UNTIL THE COMPLETION OF DISCOVERY
Plaintiff previously filed her Motion to Continue the hearing on Carnival’s Motions for Summary Judgment until the completion of discovery. Copy attached as Exhibit 1. On November 29, 2011, after a telephonic hearing where the issue was not argued in its entirety, this Honorable Court denied said motion. Herein, Plaintiff moves for rehearing and/or reconsideration of the issue because there remains pending significant discovery to be conducted, all of which is relevant to the issue(s) contained in Carnival’s Summary Judgment regarding Exposure.
This discovery includes, but is not limited to: written discovery to be exchanged, as well as depositions to be taken. As to the pending written discovery, the parties are still working on compliance with the Magistrate’s May 25, 2011, Report and Recommendation regarding discovery. Copy attached as Exhibit 2. There is also discovery pending pursuant to the Magistrate’s November 9, 2011, Report and Recommendation. Copy attached as Exhibit 3. Furthermore, the parties are in the process of submitting an agreed order regarding other outstanding discovery. Draft Agreed Order attached as Exhibit 4.
In addition, there are numerous depositions to be taken. Plaintiff repeatedly requested dates to no avail, and recently filed a motion to compel deposition dates of the following witnesses. See Exhibit 5, attached Motion to Compel dated November 8, 2011. After said filing, the parties have agreed to the entry of an order to provide dates for said depositions. As such, the record is clear that Plaintiff has pending requests to take the depositions of the following Carnival employees:
1) Elaine Heldewier
2) Vincenzo Marcetti
3) Joseph Mujwit
4) Carnival Corporate Representative
5) Raimondo Nicita
6) Luciano Tortorici.
In addition, upon receipt of the pending discovery from Carnival, Plaintiff’s Liability Expert Bruce Woodruff will submit his Expert Report, which will go directly to the issue(s) of exposure / causation raised in Carnival’s Motion.
In sum, all of this pending discovery goes directly to the issue of the presence and location of asbestos on Defendant’s vessels. In such a circumstance, the Third District Court of Appeal holds:
It is axiomatic that Summary Judgment may not be granted unless the moving party is able to show that no genuine issues of material fact exist. See Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966); Kemper v. First Nat’l Bank of Dayton, Ohio, 277 So. 2d 804 (Fla. 3d DCA 1973). Where discovery is not complete, the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist. See Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987). Thus, where discovery is still pending, the entry of Summary Judgment is premature. See Smith v. Smith, 734 So. 2d 1142, 1144 (Fla. 5th DCA 1999)(“Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions, and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending.”); Henderson v. Reyes, 702 So. 2d 616, 616 (Fla. 3d DCA 1997)(reversing the entry of [**9] Summary Judgment where depositions had not been completed and a request for the production of documents was outstanding.); Collazo v. Hupert, 693 So. 2d 631, 631 (Fla. 3d DCA 1997) (holding that a trial court should not entertain a motion for summary judgment while discovery is still pending); Spradley v. Stick, 622 So. 2d 610, 613 (Fla. 1st DCA 1993); Singer v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987).
Payne v. Cudjoe Gardens Property Owners Assoc. Inc., 837 So. 2d 458 (Fla. 3d DCA 2002)(emphasis added).
Accordingly, Plaintiff respectfully requests that the hearing on the instant motion be continued until the completion of this discovery; or denied in its entirety.
III. PRELIMINARY RESPONSE WITHOUT DISCOVERY TO CARNIVAL’S MOTION FOR SUMMARY JUDGMENT
A. BACKGROUND FACTS
Plaintiff filed her complaint on January 17, 2006 after her husband, Benedetto Caraffa, an electrician aboard Carnival vessels for approximately 15 years, passed away due to lung cancer caused by exposure to asbestos. Since that time Plaintiff has attempted to obtain from Defendant discovery to support her claims, however Carnival has repeatedly and consistently prevented the Plaintiff from obtaining the requested discovery. Now, with voluminous discovery still outstanding, Carnival is attempting to obtain Summary Judgment by arguing that Mrs. Caraffa has not proved with specificity where, when, and how Mr. Caraffa was exposed to asbestos on Carnival vessels.
There are two problems with Carnival’s motion. First, it is based on the wrong law. Carnival’s Motion is predicated on an incorrect analysis of the burden of proof for a seaman’s injury case. Second, despite Carnival’s failure to cooperate in discovery, there is ample evidence in the record to support the Plaintiff’s claim that Mr. Caraffa was exposed to asbestos on Carnival vessels and that the exposure caused his death.
B. SUMMARY JUDGMENT STANDARD
To obtain a summary judgment Carnival must conclusively show the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the Plaintiff. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla. 1977). Summary judgment should be granted only where the salient facts are not in issue and where the controversy has evolved into one purely of law to be decided on the undisputed facts. See Yost v. Miami Transit Co., 66 So.2d 214, 215 (Fla. 1953). If any of the evidence raises any issue of material fact, if it is conflicting, if it allows for different reasonable inferences, or if it tends to prove the issues, then the question should be submitted to the jury as a question of fact. Williams v. Lake City, 62 So.2d 723 (Fla. 1953).
A party moving for summary judgment bears an even more onerous burden in Jones Act Cases. See Trochez v. Holland-American Cruise Lines, 353 So.2d 864 (Fla. 3d DCA 1977). The Third DCA has held that there must be a complete absence of probative facts to support a claim of negligence before the court can grant summary judgment. See Dos Santos v. Ajax Nav. Corp., 531 So.2d 231 (Fla. 3d DCA 1988) (“In a Jones Act case a simple showing of some negligence on the part of the employer coupled by direct or circumstantial evidence to the injury sustained by the employee creates a jury question.”); see also Johnson v. Bryant, 671 F.2d 1276, 1279 (11th Cir. 1982). The plaintiff has a “featherweight” burden of proof in establishing a claim for Jones Act negligence. Ribitzki v. Canmar Reading & Bates, Ltd., 111 F.3d 658 (9th Cir. 1996); Bavaro v. Grand Victoria Casino, 2001 U.S. Dist. LEXIS 3091, 2001 WL 289782 (N.D. Ill. March 15, 2001). Because of the policy of providing an expansive remedy for seamen, submission of Jones Act claims to a jury requires a very low evidentiary threshold; even marginal claims are properly left for jury determination. Leonard v. Exxon Corp., 581 F.2d 522, 524 (5th Cir. La. 1978) citing Barrios v. Louisiana Construction Materials Company, 465 F.2d 1157, 1162 (5th Cir. 1972). Accordingly, Carnival has a tremendous burden to meet in order to obtain summary judgment.
C. CARNIVAL’S ENTIRE MOTION IS BASED ON CASE LAW THAT IS INAPPLICABLE TO THE PRESENT MATTER.
In nearly identical fashion to Carnival’s other Motion for Summary Judgment (regarding Statute of Limitations), Carnival relies on case law that is inapplicable to the instant matter. All of Defendant’s case law deals with products liability actions.
The instant matter is NOT a products liability action; it’s a Jones Act claim.
In all of the cases cited by the Defendant, the plaintiff was suing numerous manufacturers of asbestos, not Jones Act employers. In cases such as those cited by the Defendant, it appears that a higher standard regarding exposure (causation) is required to maintain a cause of action. This rule make sense where a Plaintiff sues numerous different asbestos manufacturers because it creates a mechanism to determine which defendant asbestos the plaintiff was exposed to. Such a fact scenario is not present here.
On the other hand, when suing a Jones Act employer, the case law is dramatically different. It is black letter law that the plaintiff has a “featherweight” burden of proof in establishing a claim for Jones Act negligence. As the United States Supreme Court recently reaffirmed in CSX Transp., Inc. v. McBride, 131 S. Ct. 2630 (U.S. 2011), “Juries in [FELA] cases are properly instructed that a defendant railroad “caused or contributed to” a railroad worker’s injury if the railroad’s negligence played a part–no matter how small–in bringing about the injury. That is the test Congress prescribed for proximate causation in FELA cases.” Emphasis added. Accordingly, Carnival’s reliance on products liability is wholly misplaced as the standard for Jones Act negligence is well-defined.
As the Third District Court of Appeal made clear in Dos Santos v. Ajax Nav. Corp., 531 So. 2d 231 (Fla. 3d DCA 1988), “[i]n a Jones Act case a simple showing of some negligence on the part of the employer coupled by direct or circumstantial evidence to the injury sustained by the employee creates a jury question.” Herein, the record evidence concisely shows negligence on the part of Carnival and that said negligence caused Mr. Caraffa’s untimely death, such that the matter should be submitted to a jury.
D. THE RECORD EVIDENCE (WITHOUT THE BENEFIT OF REQUESTED DISCOVERY)
Herein, despite the fact that there is voluminous pending discovery that goes directly to the issues raised by Carnival, the record is full of evidence that there was asbestos on the vessels on which Mr. Caraffa worked and that Carnival did nothing to protect its workers from this toxic substance. There is also evidence that demonstrates that Mr. Caraffa was exposed to that asbestos during his time on the vessels.
Most notably, on December 1, 2010, counsel for both parties traveled to Italy to take the deposition of Giorgio Rispoli, who worked as a chief engineer with Carnival Cruise Lines throughout the relevant time periods of this claim. See Exhibit 6, transcript of Rispoli’s deposition.
During the deposition, Rispoli testified:
Rispoli: I told him the asbestos was used as an isolater for the main, the boilers, for the auxiliary boilers, for all the tubes, the pipes for the vapors and hot water pipes, for the hot water containers, all the air conditioning piping and for the – – yes, the air conditioning piping. The main generators. Asbestos – –
Mr. Winkleman: I’m sorry, what was the last thing he said?
Interpreter: Just now? He says asbestos was pretty much everywhere, that its over.
Mr. Maltzman: And you told him all of those different places where you believed there was asbestos, the boilers, the auxiliary boilers, the tubes and pipes for vapor, of the tupes and pipes for hot water, the hot water containers, the air conditioning piping and the main generator; correct?
Mr. Maltzman: And what ships did you tell him this was on?
Rispoli: On the Mardi Gras, the Carnival, the Festival, an the Tropical.
See Deposition of Giorgio Rispoli, pg. 14-16 (emphasis added).
During his deposition, Rispoli confirmed the presence of asbestos in the above mentioned locations.
Speaking more particularly about where and how Caraffa may have been exposed to asbestos Rispoli testified:
Mr. Maltzman: …First, you believe asbestos might have been used as an isolater for the boilers?
Mr. Maltzman: What do you mean as an isolater?
Rispoli: For example, if this was the boiler, this would be the asbestos, all around the boiler.
Mr. Maltzman: To protect it from the heat, is the heat (unintelligible)?
Rispoli: To prevent the heat from coming from the boiler outside.
Mr. Maltzman: And the boiler was on, was that on steamships, motor ships or both?
Rispoli: On the steamships, an also on the motor ships there are secondary boilers that are used for hot waters and showers and that kind of thing.
Mr. Maltzman: And then you said as isolater for the auxiliary boilers, that’s the same thing; correct?
Rispoli: Yes, that’s correct.
Mr. Maltzman:And then you said around the tubes and pipes for the vapor and the hot water?
Rispoli:uhuh , and also in the air conditionings.
Mr. Maltzman:Okay, I’m going to come to the air conditionings because I have a separate unit. So lets talk about the pipes for vapor and the pipes for hot water. Are you saying the hot water pipes throughout the whole ship or around where you –
Rispoli: Yes, for the whole ship.
Mr. Maltzman: And then the hot water containers, where was the material that you believe might have had asbestos on the hot water container?
Rispoli: Around – –
Mr. Maltzman: And that would be the plumbers and the fitters, principally you would work on the hot water container if there was a problem?
Mr. Maltzman:You’d agree that the principal job of a first electrician would not generally be spending a significant time working on the boilers, auxiliary boilers, the pipes or the hot water containers?
Rispoli: No, but in the engine room contains about a hundred fifty electrical motors, so the electricians maintain these motors.
Mr. Maltzman:So it’s your testimony then that the electrician might be in the engine room where these other pieces of equipment might be?
Rispoli:Well, where the main generator is, yes, you may see the presence of the electrician because the generator is the machine that generates electricity.
Mr. Maltzman: …Do you believe there was material that may have been asbestos in or around the main generator?
Rispoli: Around the generator for sure, yes.
Mr. Maltzman:And then the last place that you talked about being of the materials that you thought may have been asbestos was the air conditioning piping?
Mr. Maltzman:You mean that the vents which the air goes through, is that what you’re talking about?
Rispoli:He speaks about the actual pipes that bring the air, circulate the air around. And this is where the cold air is disbursed.
See Deposition of Giorgio Rispoli, pg. 37-44.
Later Mr. Rispoli summarized his testimony regarding the presence of asbestos on Carnival vessels and made it clear that electricians like Mr. Caraffa were exposed to asbestos.
“Mr. Winkleman: You talked before with Mr. Maltzman about where electricians would work and wouldn’t work, and particularly you talked about the generator, that the electrician would be working around the generator.
Rispoli:Yes, they wouldn’t work everyday on the generator but they could happen that they worked on the generator.”
See Deposition of Giorgio Rispoli, pgs. 95-96L: 25-8.
Mr. Rispoli continued:
“Mr. Winkleman: But so basically it’s your testimony that there are at least two separate rooms, generator room and boiler room which would have been filled with asbestos.
Mr. Winkleman:What about the generators?
Rispoli: These again were steam machines so they were also covered in asbestos as well as all the pipes were covered in asbestos.”
See Deposition of Giorgio Rispoli, pg. 65 L: 13-25.
In short, the deposition testimony of Giorgio Rispoli is direct evidence that there was asbestos on board four (4) of the vessels that Caraffa worked on; and that Caraffa, as an electrician, would be working in and around said areas.
Mr. Rispoli’s testimony makes it clear that there were large amounts of asbestos onboard that Mr. Caraffa would have been exposed to in his position as an electrician onboard Carnival vessels. His testimony also made clear that Carnival did nothing to prevent this exposure or protect Mr. Caraffa or other employees from this exposure. Mr. Rispoli was asked generally about the safety precautions taken by Carnival regarding asbestos on their vessels and answered:
Mr. Winkleman:Okay. Now going back to when you talked about situations where crewmembers, in particular people in your department had to work with or around asbestos, were there any special rules or policies or protocols for such work?
Mr. Winkleman:Okay. During your time, were you ever given any warnings by Carnival regarding working around asbestos?
Mr. Winkleman:While working for Carnival, were you ever told by Carnival that it would be dangerous to work around asbestos?
Mr. Winkleman:During your approximately 17 year career with Carnival was there ever any special gear or equipment that was provided to any Carnival crewmember while working with asbestos?
Mr. Winkleman: So Carnival never during your entire career gave any crewmember to your knowledge specific gear or equipment for using asbestos?
See Deposition of Giorgio Rispoli, pgs. 74-75 L: 4-25-13
Rispoli’s testimony regarding Carnival’s utter lack of safety precautions, safety instructions, and warnings is, in and of itself, enough evidence to survive Carnival’s Motion for Summary Judgment.
Furthermore, there is also direct record evidence that the plaintiff’s lung cancer was caused by exposure to asbestos. On December 3, 2010, the parties took the deposition of Dr. Maria Sironi, Plaintiff’s expert and the treating doctor who performed the autopsy on Mr. Caraffa. In her deposition, Dr. Sironi made it clear that there was asbestos present in Mr. Caraffa’s lungs, as concisely depicted in the photographs taken of the pathology slides (copies attached as Exhibit 7).
Plaintiff’s counsel asked Dr. Sironi if she could render an opinion as to what caused Mr. Caraffa’s death. Dr. Sironi replied: “Mr. Caraffa has died from lung carcinoma. Squamos cell carcinoma. Bronchial carcinoma. The carcinoma developed because he inhaled asbestos fibers.” See Deposition of Dr. Maria Sironi, attached as Exhibit 8, pg. 89 L: 7-11 (emphasis added).
Accordingly, as set forth above there is ample record evidence to survive Carnival’s Motion for Summary Judgment. Plaintiff has produced evidence that there was asbestos onboard the Carnival ships that Mr. Caraffa worked on; that Mr. Caraffa was exposed to that asbestos; and that the exposure caused the cancer which led to his death. Defendant’s Motion for Summary Judgment Regarding Exposure should thus be denied and Defendant’s arguments should be brought before a jury.
 The express language of the Jones Act, 46 USC § 301014, states “ the Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.”
 Additional evidence of the presence of asbestos onboard Carnival’s ships is shown from the Lloyd’s certification records regarding the presence of asbestos on Carnival’s ships, as well as the correspondence regarding said certificates. Attached as Composite Exhibit 9. Notably, several ships that Mr. Caraffa worked on were not certified as being asbestos free. As stated in said documents: “For the Holidays, Jubilee and Celebration (all vessels Caraffa worked aboard) it is possible that the uptakes and boilers were insulted using asbestos since this was the most efficient material available at the time…”