Dragovich v. Magical Cruise Co.
Dragovich v. Magical Cruise Co.
Opinion of the Court
AFFIRMED.
Dissenting Opinion
dissenting.
Jennifer Dragovich, as next friend of Taylor Dragovich, a minor, timely appeals the order granting Suram Trading Corporation, Inc.’s, (“Suram”), and Magical Cruise Company, LTD., d/b/a Disney Cruise Lines’s, (“Disney”), motions to exclude the testimony of Paul Summers, M.D., regarding the issue of medical causation, and the subsequent final order granting summary judgment in favor of Suram and Disney.
Dragovich alleges that Suram supplied Disney with shrimp contaminated with three strains of non-typhoid salmonella and two strains of E. coli bacteria that Disney served to her during an embarkation luncheon aboard one of its cruise ships sailing from Port Canaveral. According to the complaint, Jennifer Dragovich contracted gastroenteritis from the contaminated shrimp, which resulted in an infection of the placenta, a placental abruption, and the pre-term delivery of Taylor (with consequent medical complications).
I agree with the majority’s conclusion that the testimony of Dr. Summers was properly excluded under the Frye
In her affidavit, timely filed in opposition to the summary judgment motions, Dr. Gilberh-Barness opined that within a reasonable degree of medical certainty: (1) Jennifer Dragovich developed severe cho-rioamnionitis (an infection of the placenta) as a result of the diarrhea she experienced on board Disney’s cruise ship; (2) the diarrhea and resulting chorioamnionitis were caused by the bacterial pathogens in the shrimp supplied by Suram and served by Disney; (3) the chorioamnionitis caused a placental abruption to occur; and (4) this abruption caused the pre-term delivery of Taylor Dragovich.
Because the trial court rejected Dr. Summers’ opinion as to why the cervix might have been open (thereby allowing the pathogens from the shrimp access to the placenta), it also concluded that Dr. Gilbert-Barness’ opinion must be rejected as well. I disagree. “It is elementary that a tortfeasor takes an injured party as he finds him.” Fassoulas v. Ramey, 450 So.2d 822, 829 (Fla. 1984) (Ehrlich, J., dissenting). Therefore, the law does not require Dragavich to prove why her pregnant body was vulnerable to an infection of the placenta anymore than it would require a victim with brittle bones to establish why she had this condition before recovering in tort from someone who negligently struck her causing bone fractures that would not have been sustained by a “normal,” healthy person.
Therefore, I would reverse the order granting summary judgment on the issue of causation, and remand for further proceedings.
. Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.