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Eleventh Circuit rules that calculation of medical expense component of damages in maritime negligence case is not limited to amount paid after negotiated reductions

On August 14, 2020, in Higgs v. Costa Crociere S.P.A. Company, No. 19-10371, the Eleventh Circuit Court of Appeals affirmed in part and reversed in part a trial verdict and judgment of over $1 million awarded to a plaintiff in a maritime premises liability case involving an accident that occurred on one of the defendant’s cruise ships. The defendant argued on appeal that the district court should have granted it a judgment as a matter of law because the cruise ship did not have  notice of the hazard involved, a bucket sitting in the dining area of the cruise ship.  The plaintiff tripped over the bucket and sustained serious injuries to her left shoulder.  The Eleventh Circuit observed that reasonable care “requires, as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk-creating condition,” quoting from Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (per curiam). The evidence reportedly showed that one of the defendant’s employees placed a bucket – more than one foot tall and filled with dirty water -- behind a blind corner in a highly trafficked breakfast buffet pathway. The Court concluded “[t]hat this placement would pose a danger of tripping would have been obvious to anyone, including to any employee who knowingly placed the bucket there.”  The defendant also unsuccessfully argued on appeal that the district court had erroneously given a permissive adverse inference instruction to the jury due to several discovery violations by the defense.  The district court instructed the jury that it had found that the defendant violated court orders related to discovery and that the jury could, but was not required to infer that earlier disclosure of the information would have been unfavorable to the defendant.  The Eleventh Circuit noted that the district court could have gone much further: “it could have ‘direct[ed] that the matters . . . be taken as established for purposes of the action’ or it could even have ‘prohibit[ed] the disobedient party from supporting or opposing designated claims or defenses.’” Fed. R. Civ. P. 37(b)(2)(A)(i), (ii). The Eleventh Circuit also rejected the defense’s related argument that plaintiff’s counsel introduced reversible error in his opening statement and closing argument by accusing the defendant of the discovery abuses and encouraging the jury to resolve the case on an impermissible basis.  This issue was reviewed for plain error because it was not contemporaneously objected to at trial. The Eleventh Circuit concluded that the allegedly objectionable statements all had a basis in evidence and therefore could not mee the high bar of plain error, citing Oxford Furniture Cos. v. Drexel Heritage Furnishings, Inc., 984 F.2d 1118, 1128, 1129 (11th Cir. 1993) (finding no plain error even where counsel in closing arguments made statements “for which there was no supporting evidence, outright misstatements of the evidence, [and] expressions of counsel’s personal opinions”). Finally, in perhaps the most important precedential ruling in the case, the Eleventh Circuit adopted a rule that the appropriate measure of medical special damages in a maritime negligence case is a reasonable value determined by the jury upon consideration of all relevant evidence. The Eleventh Circuit indicated that both the amount billed by healthcare providers and the amount paid by insurers are admissible as relevant to the question of fixing reasonable value. Because the district court reduced the jury’s award of medical special damages to the plaintiff under a per se rule that would cap the amount of damages at the amount paid, the Eleventh Circuit reversed the case on this issue alone and remanded to the district court for a revised judgment incorporating the jury’s computation of medical expenses.