Carnival Cruise Line v. Stankovic

Filing 101

ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION OR REHEARING REGARDING OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENTdenying 100 Motion for Reconsideration. Signed by Judge Marcia G. Cooke on 4/11/2017. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-20353-Civ-COOKE/TORRES
CARNIVAL CRUISE LINE,
Plaintiff,
vs.
ZARCO STANKOVIC,
Defendant.
___________________________________________/
ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION OR REHEARING
REGARDING OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENT
In my Omnibus Order on Motions for Summary Judgment (ECF No. 95), I held that
because there was conflicting testimony as to whether Defendant Zarco Stankovic learned
about the South Miami Hospital/University of Miami pathology reports before signing the
Release, summary judgment is inappropriate. (Id. at 10). In the last paragraph of the Order, I
concluded that “[w]hether there was a misdiagnosis [of Stankovic’s medical condition], and
whether there was a fraudulent conspiracy to induce Stankovic to execute the Release, are
questions of fact for the jury.” (Id. at 10-11).
Plaintiff Carnival Cruise Line (“Carnival”) now moves for reconsideration or rehearing
of the Order, asserting:
In denying Carnival’s motion for summary judgment, this Court seemed
to be under the misapprehension that this case is set for jury trial such
that a jury should resolve the factual issues, if any. Instead, this case is set
for bench trial back before this Court.
(ECF No. 100 at 1).
Carnival argues that because of this misapprehension, I analyzed the parties’ Motions
for Summary Judgment (ECF Nos. 57, 73) under the wrong standard. Carnival argues that
because there will be a bench trial in this case, I am “in an enhanced position to draw
inferences and resolve the action” at the summary judgment stage without resort to the expense
of trial. Useden v. Acker, 947 F.2d 1563, 1572 (11th Cir. 1991).
I agree that the Eleventh Circuit has indicated that a more relaxed summary judgment
standard applies to non-jury cases. See Coats & Clark, Inc. v. Gary, 755 F.2d 1506, 1509 (11th
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Cir. 1985). In a non-jury setting “where there are no issues of witness credibility, the Court
may make factual determinations and draw inferences at the summary judgment stage based
on the affidavits, depositions and other evidence in the record, because ‘[a] trial on the merits
would reveal no additional data’ nor ‘aid the determination.’” Fla. Int’l Univ. Bd. of Trustees v.
Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1251 (11th Cir. 2016) (quoting Nunez v. Superior Oil Co.,
572 F.2d 1119, 1123-24 (5th Cir. 1978)).
The enforceability of the Release and the viability of Stankovic’s counterclaims turn on,
inter alia, whether anyone ever discussed with Stankovic the South Miami Hospital/University
of Miami pathology reports before he signed the Release.1 Carnival asserts that “[t]here are no
additional witnesses to testify or information to be gleaned regarding Dr. Giorgio and
Stankovic’s consultations. . . . [T]he only inference that can be drawn from this evidence is that
Dr. Giorgio informed Stankovic of his medical condition. There is no additional evidence on
this point, making a bench trial unnecessary.” (ECF No. 100). I disagree.
As I noted in the Order, there is conflicting testimony as to whether Stankovic learned
about the South Miami Hospital/University of Miami pathology reports before signing the
Release.2 (ECF No. 95). Dr. Giorgio testified that he did, Stankovic testified that he he did not.
To resolve that conflict, I necessarily will have to determine the credibility of the witnesses. Cf.
Fla. Int’l Univ. Bd. of Trustees, 830 F.3d 1242 at 1251. It is well settled in this Circuit that
personal observation of testimony is the sine qua non of determining witness credibility. See, e.g.,
Tippitt v. Reliance Standard Life Ins. Co., 276 F. App’x 912, 915 (11th Cir. 2008) (“Credibility
determinations are typically the province of the fact finder because the fact finder personally
observes the testimony . . . .”); Carr v. Schofield, 364 F.3d 1246, 1265 (11th Cir. 2004) (“The
determination of credibility . . . is within the province of the district court, which has the
opportunity to observe and study the witness.”). Ronel Corp. v. Anchor Lock of Fla., Inc., 325 F.2d
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To prevail, Stankovic also will need to prove that Dr. Giorgio misdiagnosed him, and that Dr.
Giorgio and Carnival conspired to hide that misdiagnosis to induce Stankovic to sign the Release.

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In my Order, I cite several decisions standing for the general principle that a plaintiff’s testimony
cannot be discounted on summary judgment unless it is blatantly contradicted by the record,
blatantly inconsistent, or incredible as a matter of law, meaning that it relates to facts that could not
have possibly been observed or events that are contrary to the laws of nature.” Feliciano v. City of
Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013); see Reid v. Sec., Fla. Dept. of Corr., 486 F.
App’x 848, 852 (11th Cir. 2012); Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir. 2005). None
of those decisions expressly limit their holdings to cases that will proceed to a jury, rather than a
bench, trial.
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889, 890 (5th Cir. 1963) (“[T]he credibility of those witnesses is crucial, and it would be erroneous,
by a summary judgment, to deprive either party of a ‘live trial’ at which the trial court could
observe the witnesses' demeanor in evaluating their testimony.”).
In light of the above, I decline to reconsider my Order denying Carnival’s Motion for
Summary Judgment.
CONCLUSION
It is, therefore, ORDERED and ADJUDGED that Carnival’s Motion

for

Reconsideration or Rehearing Regarding Omnibus Order on Motions for Summary Judgment
(ECF No. 100) is DENIED.
DONE and ORDERED in chambers at Miami, Florida, this 11th day of April 2017.

Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of Record

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