969 F.3d 1295 (11th Cir. 2020), 19-10371, Higgs v. Costa Crociere S.P.A. Co.

Docket Nº:19-10371
Citation:969 F.3d 1295
Opinion Judge:MARCUS, Circuit Judge.
Party Name:Joyce D. HIGGS, Plaintiff-Appellee Cross-Appellant, v. COSTA CROCIERE S.P.A. COMPANY, Defendant-Appellant Cross-Appellee.
Attorney:Nicholas A. Homan, Robert Chaffin, The Chaffin Law Firm, HOUSTON, TX, Angela Valentina Arango-Chaffin, The Law Office of Angela Arango-Chaffin, MIAMI BEACH, FL, Andrew Bender, The Bender Law Firm, PLLC, HOUSTON, TX, James C. Higgs, Stein & Higgs, PLLC, MT PLEASANT, MI, for Plaintiff-Appellee-Cros...
Judge Panel:Before WILSON, MARCUS and BUSH, Circuit Judges.[*]
Case Date:August 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1295

969 F.3d 1295 (11th Cir. 2020)

Joyce D. HIGGS, Plaintiff-Appellee Cross-Appellant,

v.

COSTA CROCIERE S.P.A. COMPANY, Defendant-Appellant Cross-Appellee.

No. 19-10371

United States Court of Appeals, Eleventh Circuit

August 14, 2020.

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Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 0:15-cv-60280-JIC

Nicholas A. Homan, Robert Chaffin, The Chaffin Law Firm, HOUSTON, TX, Angela Valentina Arango-Chaffin, The Law Office of Angela Arango-Chaffin, MIAMI BEACH, FL, Andrew Bender, The Bender Law Firm, PLLC, HOUSTON, TX, James C. Higgs, Stein & Higgs, PLLC, MT PLEASANT, MI, for Plaintiff-Appellee-Cross-Appellant.

Richard J. McAlpin, Walter Cooper Jarnagin, McAlpin Conroy, PA, MIAMI, FL, Adria G. Notari, Notari Law, PA, FORT LAUDERDALE, FL, for Defendant-Appellant-Cross-Appellee.

Before WILSON, MARCUS and BUSH, Circuit Judges.[*]

MARCUS, Circuit Judge.

On Christmas Eve, 2014, Joyce Higgs tripped over a bucket in a dining area of the cruise ship Costa Luminosa and sustained serious injuries to her left shoulder. She sued the cruise company, defendant Costa Crociere ("Costa"), for negligently placing the bucket behind a corner in a highly-trafficked area, and on September 27, 2018, a jury returned a verdict in her favor for over $1 million.

Costa challenges that verdict, arguing that the district court should have granted it judgment as a matter of law because Higgs failed to show that the cruise ship had notice of the hazard posed by the bucket. In the alternative, Costa claims that it is entitled to a new trial because the district court improperly addressed discovery disputes between the parties, unfairly prejudicing it at trial. After careful review, and with the benefit of oral argument, we find these arguments unpersuasive and affirm the verdict in Higgs's favor.

The more difficult question comes to us as a cross-appeal. Specifically, Higgs argues that the district court erred in reducing the jury's award of compensatory damages for past medical expenses from the amount the jury found to be reasonable — and which closely approximated the amount billed by Higgs's healthcare providers (roughly $61,000) — to the much lower amount actually paid in satisfaction of those charges by her and her insurer (some $16,000). This claim raises a question of first impression under maritime law. We hold that the appropriate measure of medical damages in a maritime tort case is that reasonable value determined by the jury upon consideration of any relevant evidence, including the amount billed, the amount paid, and any expert testimony and other relevant evidence the parties may offer. Because the district court improperly reduced Higgs's damages by applying a bright-line rule that would categorically limit medical damages to the

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amount actually paid by an insurer, we vacate the district court's reduction of the medical damages award and remand for entry of judgment in the amount the jury found to be reasonable.

I.

On the morning of December 24, 2014, Joyce Higgs was on the fourth day of a Caribbean cruise with her family, including her daughter, son-in-law, and grandson. Higgs and her daughter, Christina Bartolo, were the first out of their rooms that morning. They went to the ship's breakfast buffet, where Higgs went to pick up food while Christina saved a table. As Higgs was returning from the buffet line and turning left around a busboy station, she was forced to take a step towards the station as diners at a nearby table moved their chairs back to stand. One or two steps around the corner of the station, while walking on a carpeted pathway, Higgs tripped over a cleaning bucket that she had not seen and sustained injuries to her shoulder, fracturing her humerus. She spent the remainder of the cruise bed-bound, and she has been in and out of the offices of doctors and physical therapists ever since.

Higgs's grandson, Domingo Bartolo Jr., arrived on the scene shortly after the incident. He testified in his deposition, which was played for the jury, that his efforts to photograph the bucket over which his grandmother had tripped were frustrated by a female security officer who was taking photos of her own. Costa disputes this account. It says that the female security officer — Kavita Kamble — investigated the incident but took no contemporaneous photos of the scene. Instead, Costa claims that the only photos of the area were taken the following evening and reflect Kamble's own halfhearted attempt to reconstruct the scene — the photos show the water bucket not behind the corner but in front of it, clearly visible on approach from the buffet. Both parties agree this does not depict the bucket's location when Higgs tripped over it on December 24. Domingo Jr. also testified that he saw Kamble take down the names of eyewitnesses. In the end, Kamble composed an investigation report that blamed Higgs's poor judgment and inattentiveness for the accident.

Higgs filed her complaint against Costa in the United States District Court for the Southern District of Florida, alleging negligence under federal maritime law, on February 11, 2015. Discovery disputes began between the parties the following year. Costa did not disclose Kamble's identity in its initial disclosures, nor did it turn over the photos it concedes she took. Citing Domingo Jr.'s deposition testimony, Higgs moved to compel production of "contemporaneous photographs of the scene" on January 29, 2016. Costa responded by asserting work product privilege and denying that the photos it had were "contemporaneous"; rather, it stated, they "were taken 1 to 2 days later." A magistrate judge found that Higgs's need for the photos, coupled with the fact that Costa had prevented her from taking her own, were sufficient to overcome any work product privilege. The court ordered Costa to "produce, within three days of this Order, copies of those photographs which were taken on December 24, 2014 and December 25, 2014, and which depict the scene of the incident as it existed on December 24, 2014."

But Costa didn't produce anything in response. Instead, it had Kamble execute an affidavit stating that the only photographs she took did not depict "the scene

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of Mrs. Higgs' incident as it existed on December 24, 2014 at the moment the guest fell," nor were they "designed to depict the scene of Mrs. Higgs' incident." Costa did not reveal this affidavit to anyone else and responded to the judge's order by denying, without elaboration, that it possessed any responsive photographs.

Higgs did not press the matter further, and the case proceeded to trial in March 2016. Costa did not call Kamble as a witness or introduce her photographs into evidence. At trial, Costa's corporate representative testified that "there should never be a bucket on the carpet" and that the buckets must be "tucked to the [busboy] stations" to minimize the risk of tripping. The jury returned an approximately $1.1 million verdict for Higgs, finding her to be 15% at fault for the accident. Costa appealed, and a panel of this Court reversed and remanded for a new trial, finding that the district court had erred by excluding evidence of Higgs's propensity to fall. See Higgs v. Costa Crociere S.p.A., 720 Fed.Appx. 518, 520 (11th Cir. 2017) (per curiam).

On remand, the discovery disputes came to a head. Costa announced — a little more than one month before the second trial — that it intended to call a new corporate representative and expand the scope of his testimony to cover, among other things, "Costa's investigation following the subject incident" and "any other matter relating to Costa's knowledge or involvement with the facts alleged in the Complaint." Higgs responded with a subpoena for "[a]ny and all internal correspondence concerning the incident in question or any efforts to investigate the incident" and "[a]ll documents regarding Costa's knowledge and/or investigation of the subject incident." Costa refused to comply; thereafter, the district court granted Higgs's emergency motion to compel on August 30, 2018. The court ordered Costa to produce responsive documents or a privilege log by September 7 in anticipation of the deposition of its new corporate representative on September 10. Costa produced the accident investigation report — revealing Kamble's identity — but did not produce Kamble's photos until September 11, 2018, one day after its corporate representative's deposition.

Incensed, Higgs filed a motion for discovery sanctions, seeking an adverse jury instruction regarding Kamble's identity and her photos. Costa moved in limine to preclude Higgs from raising discovery issues before the jury. The district court granted Higgs's sanctions motion and denied Costa's motion in limine. It found that Costa had committed "an egregious discovery violation" and adopted an adverse instruction that would permit but not require the jury to infer that earlier production of the photos and Kamble's identity would have been unfavorable to Costa. The adverse instruction read this way: You are instructed that the Court has found that the Defendant deliberately concealed from the Plaintiff the name of a witness with direct knowledge and participation in the investigation of this matter, Kavita Kamble. You are also instructed that the Defendant deliberately concealed from the Plaintiff photographs of the scene which were taken within 30 days of the incident, in violation of this Court's order.

You may infer that Kavita Kamble would have offered testimony favorable to the Plaintiff had she...

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