Landivar v. Celebrity Cruises, Inc.

584 F.Supp.3d 1150

Alcides LANDIVAR, Plaintiff,

v.CELEBRITY CRUISES, INC., Defendant.

CASE NO. 21-20815-CIV-ALTONAGA/Torres

United States District Court, S.D. Florida.

Signed February 8, 2022

Jacqueline Garcell, Luis Alexander Perez, Michael A. Winkleman, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiff.

Evan S. Gutwein, Hamilton Miller & Birthisel, Miami, FL, for Defendant.

ORDER

CECILIA M. ALTONAGA, CHIEF UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court on Defendant, Celebrity Cruises, Inc.’s Motion for Summary Judgment [ECF No. 31], filed on December 28, 2021. Plaintiff, Alcides Landivar, filed a Response [ECF No. 35], and Defendant filed a Reply [ECF No. 40]. The Court has considered the parties’ written submissions (see [ECF Nos. 32, 36, 41]), the record, and applicable law. The Motion is now ripe for review.

I. BACKGROUND

A. Plaintiff's Voyage Aboard the Celebrity Eclipse

Plaintiff and his wife, Maria Gutierrez, booked a 14-night cruise aboard the Celebrity Eclipse that was scheduled to depart from Buenos Aires, Argentina, on March 1, 2020, and conclude in San Antonio, Chile, on March 15, 2020. (See Def.’s Statement of Material Facts [ECF No. 32] ¶ 2 [hereinafter Def.’s SMF]). In the month preceding the cruise, Plaintiff and Gutierrez received several messages from Defendant informing them about Defendant's prescreening and public health protocols. (See id. ¶ 3). One of the messages assured passengers that Defendant was remaining apprised of "global developments related to the coronavirus" and would take measures to minimize the risk that COVID-19 would spread on the ship. (Id. , Ex. C, Feb. 24, 2020 Letter [ECF No. 32-3]). These mitigation measures included plans to deny boarding to passengers and crew who had recently traveled to or from high-risk countries or exhibited flu-like symptoms. (See id. ).

Plaintiff and Gutierrez boarded their cruise as planned on March 1, 2020. (See Def.’s SMF ¶ 7). Over the next two weeks, they participated in six onshore excursions, including hours-long bus tours at several port cities. (See id. ¶¶ 15–16; Pl.’s Statement of Material Facts [ECF No. 36] ¶¶ 15–16 [hereinafter Pl.’s SMF]). They did not take precautions related to COVID-19 on their cruise or at the port cities they visited, other than washing their hands. (See Def.’s SMF ¶¶ 5, 17; Pl.’s SMF ¶¶ 5, 17).

Defendant kept an "ILI Log" to document influenza-like illness present on the cruise. (See Pl.’s SMF ¶ 65; see also Resp., Ex. A, ILI Log [ECF No. 35-1]). Between March 1 and March 9, 2020, Defendant documented eight cases of influenza-like illness among passengers and crew. (See ILI Log 1–2). In each case, the patient reported some combination of feverishness, a sore throat, or a cough, and was isolated after reporting symptoms to Defendant's medical staff. (See id. 1). At the time, operative guidance from the Centers for Disease Control and Prevention (CDC) advised that COVID-19 patients might have few or no symptoms and that symptoms "may include fever, cough, and shortness of breath." (Def.’s SMF, Ex. J, Interim Guidance for Ships on Managing Suspected Coronavirus Disease 2019 [ECF No. 32-10] 2).

No passenger or crew member was diagnosed with COVID-19 while on the cruise. (See Def.’s Reply to Pl.’s SMF [ECF No. 41] ¶ 70 [hereinafter Def.’s Reply SMF]). Testing was the only reliable way to diagnose COVID-19. (See Def.’s SMF, Ex. H, Bradberry Dep. Tr. [ECF No. 32-8] 76:14–17, 209:9–10).¹ COVID-19 tests were not widely available at the time of the cruise, and Defendant had no tests on board. (See Pl.’s SMF ¶ 67; Def.’s SMF ¶¶ 40–41; Def.’s Reply SMF ¶¶ 40–41; see also Bradberry Dep. Tr. 131:10–25). Still, Plaintiff's expert, Dr. John Bradberry, insists that Defendant should have treated any flu-like symptoms as "COVID until proven otherwise." (Bradberry Dep. Tr. 178:3–4).

On March 11, 2020, the World Health Organization (WHO) declared COVID-19 a global pandemic. (See Resp., Ex. C, No Sail Order and Other Measures Related to Operations [ECF No. 35-3] 2 [hereinafter No Sail Order]). Three days later, the CDC issued a "No Sail Order" advising the cruise industry of certain developments related to COVID-19 and restricting new voyages. (See id. 1). The No Sail Order stated, among other things, that "[t]he dynamics of passenger-to-passenger, passenger-to-crew, crew-to-passenger, and crew-to-crew intermingling in a semi-closed setting are particularly conductive to SARS-CoV-2 spread, resulting in high transmission rates." (Id. 3 (alteration added)). Defendant shut down its global cruise operations in March 2020. (See Resp., Ex. I, Campos Dep. Tr. [ECF No. 35-9] 67:24–68:12).

Three days after the No Sail Order, the captain of the Eclipse wrote a comment in the ship's Deck Log that read: "As a temporary measure cabin inspections are being suspended due to the rise of COVID[-]19 transmission on board[.]"² (Resp., Ex. B, Deck Log Book [ECF No. 35-2] (alterations added); see also Pl.’s SMF ¶ 68; Def.’s SMF ¶ 68). The same day, the Chilean government informed Defendant that its ports were closed to foreign cruise ship passengers. (See Def.’s SMF ¶ 18). The Eclipse then set sail for San Diego, California. (See id. ). Plaintiff did not disembark again until the voyage concluded in San Diego. (See Pl.’s SMF ¶ 64; Def.’s SMF ¶ 64).

Plaintiff is a 79-year-old male and a diabetic. (See Resp., Ex. F, Shipboard Medical Records [ECF No. 35-6] 1, 6; Def.’s SMF, Ex. O, Merlo Report [ECF No. 32-15] 3). On March 16, 2020, he and Gutierrez visited the Eclipse ’s medical center to request additional insulin. (See Shipboard Medical Records 25). During that visit, "there were a lot of people there, sick, coughing[,]" and Gutierrez and Plaintiff "were in there in a small[,] closed space with no masks, no social distancing." (Resp., Ex. L, Gutierrez Dep. Tr. [ECF No. 35-12] 70:18–20 (alterations added)). Plaintiff returned to the medical center on March 23, 2020 to report weakness and falling out of bed that morning. (See Shipboard Medical Records 3). In the next week, he developed a dry cough and fever. (See id. 6–7).

The Eclipse arrived in San Diego on March 30, 2020. (See Def.’s SMF ¶ 18). Plaintiff disembarked and the next day tested positive for COVID-19. (See Pl.’s SMF ¶ 76). Plaintiff developed several "complications of COVID-19[,]" including respiratory distress and blood clots in his femoral artery, the latter leading to the amputation of his right leg above the knee. (Merlo Report 10 (alteration added)). In the days after the cruise, more than 60 passengers and crew members tested positive for COVID-19. (See Campos Dep. Tr. 130:5–21).

B. Dr. John Bradberry's Testimony

Dr. Bradberry is Plaintiff's medical and liability expert. Dr. Bradberry has active medical licenses in several states and triple board certifications in emergency medicine, family medicine, and administrative medicine. (See Def.’s SMF, Ex. T, Bradberry Report [ECF No. 32-20] 1). He professes "extensive clinical and management experience in cruise ship medicine[,]" including several years as a shipboard physician and as medical director for Carnival Cruise Lines. (Id. (alteration added)).

According to Dr. Bradberry, Plaintiff "more likely than not contracted Covid-19 while on board the Celebrity Eclipse." (Id. 3). Dr. Bradberry testified that Plaintiff's symptoms were severe and pointed to medical literature that suggests more severe symptoms are associated with shorter incubation periods. (See Bradberry Dep. Tr. 187:24–190:1). With these observations in mind, Dr. Bradberry estimated that Plaintiff became infected with the novel coronavirus on or around March 17, 2020 and that Plaintiff's incubation likely tracked the average incubation period of between five and six days. (See id. 53:5–21). When Defendant's counsel asked whether "any conduct on the part of Celebrity ... caused Mr. Landivar to contract COVID[,]" Dr. Bradberry responded: "To state that it was a direct cause, I would be hard-pressed to say that. What I can say is the appropriate mitigation efforts were not implemented and what that caused was [Plaintiff] to lose opportunity for a better outcome." (Id. 195:7–14 (alterations added)). He also expressed doubt that Plaintiff's precise infection source "could ever be unraveled." (Id. 47:2; see also id. 49:5–7).

Dr. Bradberry faults Plaintiff's treating physicians, opining they did not provide Plaintiff with reasonable care because they failed to consider he had contracted COVID-19. (See id. 121:13–125:5). Yet, he simultaneously concedes that diagnosing Plaintiff with COVID-19 would "not [have] help[ed]" Plaintiff, and "[a]t that point in time there was no treatment for COVID, so ... I really have no issue with treatment." (Id. 127:15–16, 131:6–9 (alterations added)).

C. Procedural Background

Plaintiff filed suit on February 27, 2021, asserting 21 causes of action against Defendant. (See Compl. [ECF No. 1]). Defendant moved to dismiss several claims for relief and to strike Plaintiff's demand for a jury trial. (See Mot. to Dismiss [ECF No. 18] 1–2). The Court struck Plaintiff's jury trial demand and dismissed one count of the Complaint, Count XXII. (See July 12, 2021 Order [ECF No. 21] 14).

Later, the Court advised the parties that it would not entertain Daubert³ motions or motions in limine. (See Dec. 8, 2021 Order [ECF No. 30] 2 n.2). Nevertheless, Defendant moved to strike Dr. Bradberry's testimony as untimely disclosed under Federal Rule of Civil Procedure 37. (See Mot. to Strike [ECF No. 33]). The Court denied the motion. (See January 27, 2022 Order [ECF No. 43]).

Defendant now moves for summary judgment on the Complaint's remaining counts. In his Response, Plaintiff states that he "forgoes" his claims for negligent provisioning (Count XVII) and negligent hiring or retention (Count XVIII). (Resp. 20). Plaintiff's remaining causes of action include six categories of claims: negligent failure to warn (see Compl. ¶¶ 43–70); negligent...