John Doe v. Carnival Corp., et al – Part 5

Lipcon, Margulies & Winkleman, P.A

April 04, 2013

John Doe v. Carnival Corp., et al – Part 5

Reply to Motion to Dismiss Appeal

Our maritime attorneys practice both active trial and appellate law. In this case, our admiralty lawyers pursue a Plaintiff’s right to appeal the dismissal of his case for medical negligence against Carnival. One purpose of this appeal is to change long standing law that shields cruise lines from liability for the negligence of their doctors. For over thirty yeasr, Lipcon, Margulies & Winkleman, P.A. has strived to achieve fair compensation for its clients and safer ships for passengers and crewmembers.

CASE NO. 13-10203-CC




Appellant/Plaintiff, JOHN DOE, by and through his undersigned counsel and pursuant to Rule 27 of the Federal Rules of Appellate Procedure, hereby files his Reply to Appellee/Defendant Carnival Corp.’s Response to Appellant/Plaintiff’s Motion for an Extension of time to File Initial Appellate Brief and Motion to Consolidate Appeals, and in support thereof states as follows:

I. Introduction

At the outset of this reply, Appellant feels it is important to clear up a misunderstanding that occurred between counsel for Appellant and Counsel for Appellee Carnival. Carnival notes in its response, filed March 28, 2013, that it opposes Appellant’s motion to consolidate the present appeal[1], filed March 18, 2013, with the appeal of the District Court’s order dismissing the Medical Defendants from this case.[2] Further, counsel for Carnival stated that undersigned counsel incorrectly represented to the Court, that Carnival had no position regarding a consolidation of the two appeals and that Carnival in fact opposes the consolidation of the appeals.

Appellant apologizes for any misunderstanding that occurred regarding Carnival’s opposition to Appellant’s motion for consolidation. When Appellant’s counsel e-mailed counsel for Carnival on March 18, 2013, to ask Carnival’s position regarding an extension of time and consolidation, Carnival responded by stating, “we have not yet determined what Carnival’s position would be on consolidation”. Exhibit 1. Accordingly, when Appellant filed the motion later that day, Appellant mistakenly represented that Carnival had no position regarding consolidation, without making clear to the Court that Carnival would take a position in the future. Undersigned counsel in no way intended to mislead the Court or misrepresent Carnival’s position and apologizes for this error.

II. Argument

With regard the balance of Carnival’s response, Carnival argues that there is no inextricable link between the two appeals. Primarily, Carnival believes there is no link between the appeals as the order dismissing the medical negligence claims against Carnival deals with a legal analysis, whereas the order dismissing the Medical Defendants for lack of personal jurisdiction deals with a factual analysis regarding the procedural issue of jurisdiction. The fallacy of this argument is threefold.

Firstly,despite the fact that the present appeal addresses a legal question and the second appeal addresses a procedural question, both appeals arise out of the same set of underlying facts. As such, consolidation of the appeals will save the Court’s and the Parties’ time and resources. If these appeals are heard separately, the Court will be faced with a duplicative presentation of facts and issues, separate briefs, and potentially separate oral arguments. This would be a tremendous waste of time and effort as the main issue in both appeals is whether or not a cruise ship passenger can seek redress in U.S. Courts, for injuries sustained due to allegedly negligent medical care rendered aboard a cruise ship.

Secondly, the argument ignores the fact that in coming to a decision on the legal question of whether or not a cruise line should be held responsible for the negligent medical care rendered aboard its ships, this Honorable Court will have to consider public policy and the ramifications of its decision on the sixteen million passengers a year that travel aboard cruise ships. These considerations will necessarily include a factual analysis of the realities of the cruise industry, medical care and the persons who render it at sea, and the issues faced by passengers who become sick or injured while on a cruise ship. Part of that analysis is what recourse, if any, a passenger may have if the Court holds that cruise lines are not responsible for the medical care rendered aboard their ships. This ties directly into the most important problem with Carnival’s argument against consolidation.

Thirdly, the issues presented by both appeals are not just intertwined, they are interdependent. Huang is facing the prospect of appealing an order dismissing shipboard medical personnel because of the fact that the seminal case regarding the liability of cruise ship operators for the medical negligence of shipboard doctors, Barbetta v. Bermuda Star, 848 F. 2d 1364 (5th Cir. 1988)[3], holds that cruise ship operators cannot be held vicariously liable for the negligence of shipboard doctors. The Barbetta Court never intended to deny injured persons all potential avenues to recovery, but cruise lines have fashioned a scheme to do just that.

If Huang is permitted to consolidate his appeals, he will demonstrate to this Honorable Court that the Barbetta decision has led to the purposeful implementation of a liability proof profit center onboard cruise ships. In short, Carnival chooses to carry medical personnel onboard its ships to abrogate its duty to divert. This both saves the cruise line money and earns profits off the services rendered in shipboard medical facilities. Carnival then purposefully staffs its ships with foreign medical personnel[4] with few ties to the United States and who are not licensed to practice medicine in the United States. This accomplishes two goals, 1) these medical personnel are willing to work for lower wages thus earning Carnival higher profits, and 2) these medical personnel cannot be hailed into Court in the United States. Carnival fails to inform passengers of their right to divert the vessel to seek medical care and then charges passengers for their use of the medical facility. Lastly, if a passenger is injured, Carnival’s ticket contract requires them to file suit in the Southern District of Florida.[5]

When the passenger files suit in the Southern District of Florida pursuant to Carnival’s ticket contract, Carnival moves to dismiss pursuant to Barbetta, and the medical personnel move to dismiss for lack of personal jurisdiction. This same pattern has been repeated numerous times. When the Court grants both motions to dismiss, the passenger is left with no meaningful legal recourse.[6] This purposeful scheme ties directly into passenger safety at sea. The reality is that as long as cruise lines are not held financially responsible for the medical care rendered aboard their ships, the quality of that medical care will continue to decline. Cruise line profits will increase while passenger safety suffers.

III. Conclusion

The instant appeal and Huang’s second appeal present the perfect set of facts for this Honorable Court to Determine whether or not the time has come to divert from Barbetta and set a course for increased passenger safety. The administration of shipboard medical care is one of many areas where cruise lines have managed to escape oversight and responsibility for far too long. Allowing the Appellant to consolidate his appeals will give this Court the best opportunity to craft a well reasoned approach regarding these issues.

WHEREFORE, Plaintiff/Appellant respectfully request this Honorable Court consolidate the present appeal with appeal number 13-11302.

Attorneys for Plaintiff/Appellant
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204

By: /s/ Michael A. Winkleman MICHAEL A. WINKLEMAN


[1] Appealing the District Court’s Order dismissing all claims against Carnival except for regular negligence. [D.E. 29]

[2] [D.E. 53]. At the time Appellant/Plaintiff filed his motion for extension of time and motion to consolidate appeals, the Clerk and this Honorable Court had not yet assigned an appeal number to Plaintiff’s appeal of the District Court’s order dismissing the Medical Defendant’s for lack of personal jurisdiction. The Clerk and Court has since assigned the appeal number 13-11302 to that pending appeal. Huang seeks to consolidate this appeal with appeal number 13-11302.

[3] Huang notes that the Supreme Court nor this Honorable Court has ruled on the issues presented in Barbetta.

[4] Carnival contractually agrees to indemnify its medical personnel for their negligence, but this indemnification agreement is meaningless as the court will see below.

[5] Notably this same passenger ticket contract seeks to limit the liability of the shipboard medical personnel.

[6] In the instant case, in order to seek redress for the allegedly negligent medical care rendered aboard ship along with Carnival’s ordinary negligence, pursuant to the District Court’s orders, the elderly and severely injured Hung Kang Huang will be forced to file four separate lawsuits in four separate countries. Realistically, this is as good as a complete bar to any claim.