Rosenfeld v. Oceania Cruises, Inc.

• Decision Date: 07 June 2012
• Docket Number: No. 10–12651.,10–12651.
• Parties: Lydia ROSENFELD, Plaintiff–Appellant, v. OCEANIA CRUISES, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

682 F.3d 1320

23 Fla. L. Weekly Fed. C 1105

Lydia ROSENFELD, Plaintiff–Appellant,

v.OCEANIA CRUISES, INC., Defendant–Appellee.

No. 10–12651.

United States Court of Appeals,Eleventh Circuit.

June 7, 2012.

Michael A. Winkleman, Ricardo Valdes Alsina, Lipcon, Margulies, Alsina & Winkleman, PA, Miami, FL, for Plaintiff–Appellant.

William F. Clair, The Law Offices of William F. Clair, P.A., Miami, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Florida

(No. 1:08–cv–22174–JLK); James Lawrence King, Judge.

ORDER ON REHEARING EN BANC

Before DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR and MARTIN, Circuit Judges.^*

Prior report: 654 F.3d 1190.

BY THE COURT:

The court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the Suggestion of Rehearing En Banc is DENIED.

TJOFLAT, Circuit Judge, dissenting from the Denial of Rehearing En Banc:

This is a personal injury case governed by maritime law. Lydia Rosenfeld slipped and fell in the dining room of an ocean liner, M/V Nautica, during a voyage from Athens to Istanbul. The floor on which she slipped was composed of ceramic tile. Rosenfeld claimed that she slipped because the floor was wet and that vessel owner Oceania Cruises, Inc.'s negligence was responsible for her fall and consequent injuries. Oceania claimed that the floor was dry, that Rosenfeld fell because she was running in high heels, and that it was not liable for her injuries.

At trial, Rosenfeld proffered the deposition testimony of an expert witness, who had examined the floor where the accident happened and opined that it could be unreasonably slippery when wet, but not when dry. Presumably, Oceania objected to the introduction of the testimony; the District Court sustained the objection and barred the testimony. Because a transcript of the trial proceedings is not part of the record on appeal, we do not know the basis of Oceania's objection or the District Court's reason for excluding the testimony.

The jury found for Oceania, and Rosenfeld moved the District Court for a new trial based on the District Court's provisional pretrial—not its trial—ruling excluding the expert's testimony. The District Court, unpersuaded that its pretrial ruling was incorrect, denied Rosenfeld's motion for a new trial.

In her opening brief to this court, Rosenfeld did the same thing. She argued that she was entitled to a new trial because the District Court's provisional pretrial ruling erroneously precluded the jury from receiving the expert's testimony. She could not argue that the District Court's trial ruling constituted reversible error because she had instructed the court reporter not to transcribe the trial proceedings. In short, her decision not to include a trial transcript as part of the record on appeal precluded this court from determining two things: (1) whether the District Court abused its discretion in excluding the proffered testimony at trial, and (2) whether, after reflecting on the evidence presented to the jury, the District Court should have granted her a new trial on the ground that its adverse pretrial evidentiary ruling affected her substantial rights.

The panel assigned to hear Rosenfeld's appeal overlooked the fact that Rosenfeld's argument for reversal was based on a provisional pretrial ruling and treated the argument as if it were addressed to the District Court's trial ruling. The panel then concluded that the District Court erred in excluding the proffered evidence, that the error was not harmless, and that the District Court should have granted Rosenfeld a new trial. In overlooking what Rosenfeld had done, the panel failed to recognize that Rosenfeld, in basing her new trial motion on a provisional pretrial evidentiary ruling rather than an evidentiary ruling at trial, had effectively waived her argument that the District Court abused its discretion in not granting a new trial. Had the panel recognized this fact, it would have rejected Rosenfeld's appeal out of hand.

Instead, the panel held that the District Court's ruling constituted an abuse of discretion because it prevented the jury from considering a critical piece of evidence—the expert's opinion that the floor could cause someone, like Rosenfeld, to slip and fall if the floor was wet. The abuse of discretion was so prejudicial, in the panel's view, that the District Court should have granted Rosenfeld's motion for a new trial.

Because Rosenfeld chose not to include a transcript of the trial proceedings in the record on appeal, the parties' briefs contain the only “evidence” the panel had to draw on to determine whether the expert's testimony would have assisted the jury in deciding the case and whether the exclusion of the testimony prejudiced Rosenfeld to the extent that it affected her substantial rights, thus requiring a retrial. The briefs contain the lawyers' recollections of what the jury heard from the witnesses. Rosenfeld's opening brief states that “while she was on her way to the bathroom, [Rosenfeld] walked on the ceramic tile and slipped and fell on a slippery wet substance” and that “immediately after the slip and fall, she looked around and it was wet.” Appellant's Br. at 2. Oceania's answer brief states that “[t]he floor was dry” and that Rosenfeld fell because she was “almost running in high-heeled shoes.” Appellee's Br. at 5, 9. To decide the appeal in favor of Rosenfeld solely on a reading of the parties' briefs, the panel had to accept Rosenfeld's lawyer's representation of the evidence presented to the jury regarding the condition of the floor—that it was wet enough to cause Rosenfeld to slip and fall—and that the jury, if presented with the expert's opinion that the floor would be unreasonably dangerous if “saturated” with water, id. at 7, could have returned a verdict for Rosenfeld.

I dissent from this court's failure to take the case en banc for three reasons. First, a court of appeals cannot set aside a jury verdict and grant a new trial based on an error that was never raised. Rosenfeld challenges a pretrial evidentiary ruling that was provisional. Not only was it provisional as a matter of law; Rosenfeld knew that it was provisional and treated it as such, which is why she proffered the expert's testimony at trial.

Second, assuming that Rosenfeld's opening and reply briefs accurately portrayed the evidence before the jury and the District Court's reason for rejecting Rosenfeld's trial proffer of the expert's testimony, I find that the panel altogether misapplied Federal Rule of Evidence 702 in ruling the proffer admissible. If left undisturbed, I fear that the panel's holding will cause trial judges either to admit expert opinion testimony that ought to be excluded or to suffer reversal if it is excluded.

Third, binding precedent and statutory law mandate that a court of appeals cannot determine whether a trial judge abused his discretion in denying an appellant's motion for a new trial without a transcript of the testimony presented to the jury and the exhibits introduced into evidence. This is so because no error is reversible unless it is so prejudicial as to affect the appellant's substantial rights. It is the appellant's burden to demonstrate such prejudice, a burden that cannot be satisfied without a record of what the jury heard. The panel relieved Rosenfeld of this burden and ordered a new trial solely on her lawyer's representations that the District Court had misapplied Rule 702.

This opinion is organized as follows: Part I sets out the case as the panel accepted it. I start with the pretrial proceedings—principally the District Court's denial of Oceania's motion for summary judgment and the court's provisional ruling that the expert's opinion was inadmissible—and then present Rosenfeld's slip and fall as portrayed in Rosenfeld opening brief (otherwise, the expert's opinion would be plainly inadmissible). Part I ends by explaining why the panel had no cause to review the District Court's decision because Rosenfeld's appeal was effectively an appeal from a nonreviewable pretrial ruling. Part II discusses the District Court's ruling excluding the expert's opinion testimony. Part III reviews the precedent holding that an appellant cannot obtain the reversal of the denial of a motion for a new trial without showing prejudicial error—something she cannot do without a transcript of the proceedings before the jury. Part IV explains why the panel has subverted this requirement, even though that the panel has done so may not be immediately obvious to someone reading the panel's opinion. Part V states why I have written this dissenting opinion.

I.

To understand the stage that was set for the panel, it is necessary to understand how this case arose. To do so—for reasons I explain in part II.A, infra—one must look to the parties' briefs on appeal. In relevant part, here is what they say.

A.

Rosenfeld fell in one of M/V Nautica's buffet-style restaurants, the Terrace. The area where Rosenfeld slipped, which had a ceramic tile floor, was an area where patrons entering and exiting the Terrace would likely traverse. That area was alongside a service bar where wait staff—and occasionally customers—would fill glasses with water, juice, etc. for patrons. Rosenfeld said that she slipped and fell while exiting the dining area to use the restroom, walking at a normal gait and in small-heeled shoes, on tile she described as wet. Rosenfeld's husband also noted that the floor was wet when he came to his wife's aid. A Terrace waitress, on the other hand, observed that the floor was dry when she inspected it immediately after the fall. Although the waitress did not witness Rosenfeld actually slip and fall, she said that Rosenfeld appeared to be running...