Lobegeiger v. Celebrity Cruises, Inc.
| Decision Date | 23 August 2011 |
| Docket Number | CASE NO. 11-21620-CIV-ALTONAGA/SIMONTON |
| Parties | ELISE R. LOBEGEIGER, Plaintiff, v. CELEBRITY CRUISES, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE came before the Court on Celebrity Cruises Inc. ("Celebrity") and Royal Caribbean Cruises Ltd.'s ("Royal Caribbean['s]") Amended Motion to Strike and/or Dismiss Nonpecuniary Damages of Complaint and to Dismiss [Claims] III, V, VI, and VII of the Complaint (the "Cruise Lines' Motion") [ECF No. 34], filed on July 14, 2011; and upon the Yap Defendants'1 Motion to Dismiss/Strike Plaintiff's Gross Negligence Claims (Claim XI) ("Yap Defendants['] Motion") [ECF No. 23], filed on July 8, 2011. The Court has considered the parties' submissions and the applicable law.
Elise Lobegeiger ("Elise" or "Plaintiff"), traveling with her mother, June Lobegeier ("June"), was a paying passenger aboard the cruise ship Celebrity Mercury during the "12-Night Ultimate Alaska Cruise" from May 5 to May 17, 2010. (See Compl. ¶ 21). On Mother's Day, May 9, 2010, after three days at sea, the Mercury was approaching Juneau, Alaska, the first port of call for thecruise. (See id. ¶ 22). Around noon that day, Elise and June picked up lunch at the buffet at the Palm Springs Cafe, one of the restaurants aboard the Mercury. (See id. ¶ 23). They searched for a table in the cafe and in the indoor pool area on Deck 11 where they could sit and eat their food. (See id.). When they were unable to find an empty table, Elise suggested that she and June sit on adjacent Brianna Sun Loungers3 on the outside portion of Deck 11 to enjoy their meal. (See id. ¶ 24-25). June was not comfortable eating off her lap and so went back to the cafe to find an open seat at a table. (See id. ¶ 26).
Elise sat sideways on one of the Brianna Sun Loungers with her legs over the side and placed her tray toward the foot of the lounger. (See id. ¶ 27). Because she wanted to sit upright to enjoy her meal, Elise leaned around the side of the lounger so she could use her hand to adjust the back to a more vertical position. (See id. ¶ 30). Elise was not leaning against the back or exerting any pressure on it, but was sitting sideways and leaning away from the back to assure that no weight was on it while she performed the adjustment.4 (See id. ¶ 31). Without warning, the lounger's heavy back crashed down on Elise's left hand. The impact was so forceful it sliced through Elise's left index finger, severing it at the third interphallangeal joint. (See id. ¶ 32-34).
Elise did not immediately realize what happened. In shock, she looked at the deck floor and saw a bloody, inch-long section of her finger bearing bright pink nail polish. Elise picked up thelump off the deck floor and saw the bone jutting through the flesh. Only then did she begin to understand her finger had been severed. (See id. ¶¶ 34-36).
Unable to bring herself to look at the injured finger, Elise covered her hand with a napkin. (See id. ¶ 37). Carefully carrying the detached segment of her finger, Elise approached the nearest Celebrity staff member, a woman named Aleksandra Klincarova ("Klincarova"). (See id. ¶ 38). Elise told Klincarova that she had a medical emergency, that her finger had been cut off, and that she needed immediate medical assistance. Because she was "in shock and sensitive to the horrific appearance of her severed finger," Elise did not show Klincarova the severed digit. (Id. ¶ 39). Klincarova telephoned the medical bay to alert the medical team of Elise's injury, but she neither recognized nor conveyed it was an emergency. As a result, there was no immediate assistance from the medical team. (See id. ¶ 40).
Elise remained standing by the telephone with Klincarova, waiting for someone to help her. (See id. ¶ 41). Klincarova remained inattentive to the seriousness of Elise's situation despite the fact that Elise asked repeatedly when the medical staff would arrive. (See id. ¶¶ 42-43). It was only when Elise removed the napkin to show Klincarova the remaining portion of her finger that Klincarova appreciated the severity of Elise's injury. This led Klincarova to place a second call to the medical bay for assistance. (See id. ¶ 44). At no time did Klincarova attempt to administer any first aid to Elise or to otherwise treat the wound. (See id. ¶ 45). More than 10 minutes after Klincarova's first call to the medical bay, Constantin ("Constantin"), a nurse on the medical staff, arrived with a wheelchair, and Elise was taken to the medical facility on Deck 4. (See id. ¶¶ 47-48).
Elise gave the amputated portion of her finger to a member of the Celebrity medical staff. (See id. ¶ 49). Her injured hand was x-rayed, and she was given antibiotics, but no painkillers. Elisewas then examined by the ship's physician, Dr. Charles Laubscher ("Dr. Laubscher"). (See id. ¶ 50). By the time Dr. Laubscher's examination began, Elise's initial shock had worn off, and she was visibly distressed and crying. (See id. ¶¶ 51-52).
Dr. Laubscher assured Elise he was very qualified and had a specific expertise in the area of severed fingers because he had treated many similarly grievous injuries — severed limbs and appendages — as a result of machete accidents during his medical practice in South Africa. (See id. ¶ 53). Relying on this expertise, Dr. Laubscher informed Elise that the injury to her finger was catastrophic and that the amputated portion of her finger could not be reattached; he told Elise it was useless to try to reattach the finger because it would be a "miracle if it took." (Id. ¶ 54). Elise did not want to believe Dr. Laubscher, as she had often heard of fingers and toes being stitched back on, but Dr. Laubscher told Elise to forget the rest of her finger and have a skin graft on what was left. (See id. ¶¶ 55-56). Dr. Laubscher told Elise the grafting process involved stretching a piece of skin over the end of the severed finger to cover the wound and the exposed bone. He told Elise that after the graft, her index finger would be shortened by one joint. (See id. ¶ 57). More than an hour after the injury, the detached portion of Elise's finger had not been placed on ice. (See id. ¶ 58).
After the examination, a medical staff member cleaned the wounded remainder of Elise's finger and bandaged the exposed flesh and bone. (See id. ¶ 60). Elise was then left alone in one of the rooms in the medical bay to complete a "Statement of Guest or Visitor Accident/Illness" form. (See id. ¶ 61).
While Elise was in this room, Dr. Laubscher placed a telephone call to an offboard Celebrity medical professional located in Miami, Florida. (See id. ¶¶ 64-65). This medical professional confirmed Dr. Laubscher's assessment and advised Dr. Laubscher to send Elise to a hospital inJuneau where Elise would be able to receive a skin graft. (See id. ¶ 66). An ambulance from the hospital was arranged to meet Elise when the ship docked at the port in Juneau. (See id. ¶ 67). Elise was still not given any medication to manage her pain. (See id. ¶ 68).
Just before 2:00 p.m., Constantin escorted Elise to her room where June had been waiting, completely unaware that her daughter had been hurt. (See id. ¶ 69). Not wanting to upset her mother on Mother's Day, Elise told June to carry on with a planned shore excursion without her. (See id. ¶¶ 70-71). Elise packed some clothes in a knapsack and returned to the medical offices on Deck 4. (See id. ¶ 72).
The Mercury docked in Juneau around 2:00 p.m., and Elise was taken by stretcher from Deck 4 to the dock. (See id. ¶¶ 73-74). An ambulance met her there, and she was rushed to Bartlett Regional Hospital ("Bartlett Hospital"). (See id. ¶ 75). When Elise arrived at Bartlett Hospital, a member of the staff asked Elise where the amputated end of her finger was. (See id. ¶ 76). Elise was surprised by their interest in the severed finger because Dr. Laubscher had been confident that reattachment was impossible. (See id. ¶ 77). Elise was even more surprised when the severed portion of the finger, packaged in a small plastic bag appeared and was handed over to the hospital staff. (See id. ¶ 78).
At Bartlett Hospital, Elise was examined by Dr. Schwarting, an orthopedic surgeon. (See id. ¶¶ 79-80). Dr. Schwarting telephoned a former mentor in New York and consulted with him as to the chances of a reattachment being successful. (See id. ¶ 80). Although there were concerns about the amount of time that had passed since the finger had been severed and the fact that the amputated portion had not been iced immediately after the injury, Dr. Schwarting and his colleague concluded that the best way to promote healing would be to re-attach the end of the finger, and allow the tip toserve as a "biologic dressing." (Id. ¶¶ 81-82).
More than four-and-a-half hours after Elise's finger had been sliced from her hand, Dr. Schwarting performed surgery to reattach the amputated portion of Elise's finger. (See id. ¶ 83). Elise's injured hand was carefully bandaged, and Elise was given painkillers. (See id. ¶¶ 85-86). Dr. Schwarting gave Elise strict instructions not to remove the bandaging for five days, as earlier removal would hinder the healing and reattachment process; the discharge papers prepared at Bartlett Hospital repeated this instruction. (See id. ¶¶ 86-87).
Elise returned to the Mercury and spent the rest of the cruise with her hand heavily bandaged and her arm bound in a sling. (See id. ¶¶ 88-89). When Elise returned to the Celebrity Mercury, Dr. Laubscher asked to see her immediately. (See id. ¶ 106). Dr. Laubscher appeared surprised that the amputated finger had been reattached. (See id. ¶ 107). He insisted repeatedly that he had to remove Elise's bandages and inspect the reattached finger. (See id. ¶ 110). Elise told Dr. Laubscher that it was Dr. Schwarting's strict instruction to keep the bandages on for five days. (See id. ¶ 111). Elise showed Dr. Laubscher the...
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