Jane Doe v. Carnival Corp.

Lipcon, Margulies, Alsina & Winkleman, P.A

October 02, 2013

Jane Doe v. Carnival Corp.

Motion to Conduct Limited Discovery Regarding Carnival’s Control Over Shipboard Physicians

The experienced maritime attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A. strive to stay on the cutting edge of maritime law. As part of that endeavor, our attorneys actively fight to create new positive law or change existing law that harms passengers’ rights. In this motion, two of our cruise ship lawyers move the federal court to permit the taking of limted discovery regarding the issue of a cruise line’s control over shipboard medical care. This area of law is one which Lipcon, Margulies, Alsina & Winkleman, P.A. has persistently sought to imporove. This effort to effect positive change in the area of cruise ship medical care is best exemplified by the case of Carlisle v. Carnival Corp.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 1:13-CV-22604-KMW
JANE DOE
Plaintiff,

v.

CARNIVAL CORPORATION,
Doctor VUSUMZI MBUTHUMA,
Doctor Doe, Nurse Doe.
Defendants.
___________________________/

PLAINTIFF’S MOTION TO CONDUCT LIMITED DISCOVERY REGARDING THE ISSUE OF CARNIVAL’S CONTROL OVER THE MEDICAL DEFENDANTS

COMES NOW, the Plaintiff, JANE DOE, by and through undersigned counsel, and hereby files her Motion to Conduct Limited Discovery Regarding the Issue of Carnival Corporation’s Control Over the Medical Defendants, and for good cause states the following:

1. Plaintiff filed her Complaint on July 19th, 2013. See [D.E. 1].

2. Plaintiff’s Complaint includes claims that Defendant Carnival Corporation (“CARNIVAL”) should be vicariously liable for negligent medical treatment provided by Doctor VUSUMZI MBUTHUMA, Doctor Doe and Nurse Doe (hereinafter, “the Medical Defendants”). Plaintiff’s claims of vicarious liability revolve around Carnival’s ability to control the medical facilities onboard its vessels. See DE 1.

3. On August 26th, 2013, Defendant filed its Motion to Dismiss Plaintiff’s Complaint, pursuant to Fed. R. Civ. P. 12(b)(6). See DE 11. Carnival’s Motion to Dismiss centers on Barbetta, and whether a shipowner can be held vicariously liable for the negligent acts of its shipboard physicians.

4. The Barbetta position is based largely on the fallacy that cruise lines cannot control the acts of its shipboard physicians. Unfortunately, most Barbetta issues are improperly decided at the motion to dismiss stage before any discovery has been conducted into the factual issue of control.

5. Herein, Plaintiff respectfully requests leave to conduct limited discovery directly to the issue of control, in order to show this Honorable Court that the underpinnings of Barbetta are inherently flawed.

6. As such, before ruling on Carnival’s Motion to Dismiss, Plaintiff respectfully requests this Honorable Court allow Plaintiff to conduct limited discovery into the issue of Carnival’s control and/or Carnival’s right to control its onboard medical facilities.

MEMORANDUM OF LAW

As mentioned above, Plaintiff’s Complaint includes claims that Carnival should be vicariously liable for negligent medical treatment provided by the Medical Defendants. Plaintiff’s claims of vicarious liability revolve, in large part, around Carnival’s ability to control the medical facilities onboard its vessels. In particular, the Complaint states that Carnival should be held vicariously liable under theories of respondeat superior, joint venture, agency, and apparent agency. [D.E. 1]. In its Motion to Dismiss, Carnival argues that Barbetta v. Bermuda Star, 848 F.2d 1364, 1372 (5th Cir. 1988), in addition to the terms of Carnival’s passenger ticket contract, bars Plaintiff’s claims entirely as a matter of law. [D.E. 11]. Barbetta v. Bermuda Star, a case from the Fifth Circuit Court of Appeals, holds that plaintiff-passengers cannot hold a shipowner liable based on a theory of respondeat superior for the shipboard physician’s negligence. Id. This principle, which has its roots in a long line of cases stemming back to 1887, is based on the ancient premise that a shipowner is not able to control the shipboard physician. Id. Simply put, this premise is severely outdated.

In 2013, such control is not only possible, but a practical reality. With the recent advent of “Face to Face Telemedicine,” (a multi-billion dollar industry), a shipowner can literally put its passengers face to face with its Shoreside Medical Department or any land-based hospital of its choosing. Consequently, the foundation on which Barbetta was built, is now gone.

In order for Plaintiff to fully respond to Carnival’s Barbetta challenge, Plaintiff should be permitted to conduct limited discovery, in advance, into the issue of Carnival’s ability to control its shipboard physicians. It is only through this limited discovery that Plaintiff will be able to sufficiently demonstrate the degree of control Carnival has over its shipboard physicians, and that Barbetta must be overturned.

This Honorable Court enjoys broad discretion regarding its scheduling deadlines, in particular when good cause is shown. Johnson v. Board of Regents of Univ. Ga., 263 F. 3d 1417 (11th Cir. 2001). Herein, the Plaintiff respectfully submits that good cause exists to grant the requested relief and allow Plaintiff time to conduct limited discovery.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court issue an order granting Plaintiff permission to conduct limited discovery into the issue of Carnival’s control and/or Carnival’s right to control its shipboard physicians and medical facilities.

Add I 7.1 conference; defendants oppose.