                Case: 16-12919        Date Filed: 12/12/2017      Page: 1 of 9


                                                                   [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-12919
                               ________________________

                           D.C. Docket No. 0:15-cv-60280-JIC



JOYCE D. HIGGS,

                                                          Plaintiff - Appellee
                                                          Cross Appellant,

versus

COSTA CROCIERE S.P.A.,

                                                          Defendant - Appellant
                                                          Cross Appellee.

                               ________________________

                      Appeals from the United States District Court
                          for the Southern District of Florida
                             ________________________
                                 (December 12, 2017)

Before HULL and DUBINA, Circuit Judges and RESTANI, * Judge.



         *
          Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
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PER CURIAM:

       Defendant/Cross-Appellee, Costa Crociere (“Costa”), appeals the district

court’s denial of its motion for new trial on Plaintiff, Joyce Higgs’s (“Higgs”)

negligence claim. In its motion, Costa challenged the jury verdict and the award of

damages for future medical expenses. Higgs cross-appeals challenging the district

court’s failure to provide a jury instruction regarding the collateral source rule.

After reviewing the record, reading the parties briefs and having the benefit of oral

argument, we reverse the judgment entered on the jury’s verdict and remand this

case for a new trial.1

                                    I.     BACKGROUND

       In December 2015, Higgs accompanied her family on a cruise aboard a

Costa cruise ship, the Luminere. After getting her breakfast food from the buffet

one morning, Higgs fell as she turned from the buffet to locate a seat. Higgs’s

daughter, Christina Bartolo (“Christina”), testified that her mother tripped over a

bucket full of cleaning water that was left in the area. Higgs landed on her left

shoulder and was unable to rise to her feet. Christina called for help, and several

Costa employees assisted Higgs to the ship’s medical bay. Ultimately, Costa

transported Higgs ashore, where she went to a hospital at Grand Turk. The


       1
         Because of our disposition on Costa’s direct appeal, we need not reach the issue
presented in the cross-appeal.
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medical staff took X-rays, and the doctor told her she would be okay in a sling

until she returned to the United States in a few days. Higgs opted to return to the

ship with her family. (R. Doc. 141-4, p. 32-37.)

      Once Higgs returned to the United States, she went home with Christina,

who resides in Georgia, and sought medical treatment. Following more x-rays and

evaluations, doctors diagnosed her with a fractured humerus and a torn biceps

tendon. Two weeks after the accident, an orthopedic surgeon inserted a plate and

twelve screws into Higgs’s shoulder. Christina testified that the surgery went well,

but her mother was in a lot of pain.

      Higgs filed suit alleging that Costa’s negligence proximately caused her

injury. During discovery, Higgs testified about three or four prior trip-and-fall

accidents she had over a span of one year preceding the accident at issue. Higgs’s

counsel filed a motion in limine to have this evidence excluded based on Federal

Rule of Evidence 403 and to have Costa not refer to prior falls or introduce

evidence of them until the court ruled on the motion. Then at trial, the district

court granted the motion and ruled that the prejudicial effect of prior falls

substantially outweighed the probative value of that evidence. Because the district

court ruled out the prior falls evidence, the references to the prior falls and

treatment for them in the medical records were redacted from the medical records


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evidence introduced at trial. At the close of Higgs’s case in chief, Costa moved for

a directed verdict as to future medical care and future medical expenses. The

district court, viewing the evidence in the light most favorable to the non-moving

party, Higgs, denied the Civil Procedure Rule 50 motion. Finding Costa negligent,

the jury attributed 85% comparative fault to Costa. The jury awarded a total

amount of $1,316,326.01, which included $16,326.01 in past medical expenses

paid, $500,000 in past general damages, and $800,000 in future general damages

for pain and suffering, disability, physical impairment, disfigurement, mental

anguish, inconvenience, and loss of capacity of enjoyment of life. Costa filed a

motion for a new trial or to alter or amend the judgment pursuant to Civil

Procedure Rule 59 which the district court denied. Costa then perfected this

appeal.

                                        II. ISSUES

      The issues presented on appeal are: (1) whether the district court erred in

denying Costa’s motion for new trial; (2) whether the district court erred in

limiting Costa’s corporate representative to testimony that involved only his

personal knowledge; and (3) whether the evidence was sufficient to support the

jury’s verdict.




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        The issue raised in the cross-appeal is whether the district court erred in

failing to instruct the jury on the collateral source rule and its application in this

case.

                             III. STANDARDS OF REVIEW

        This court reviews a ruling on a motion for a new trial for abuse of

discretion. McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241, 1255

(11th Cir. 2016) (citing Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247

(11th Cir.2001)). This court reviews the district court's grant of a motion in limine

for abuse of discretion. Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th

Cir. 2005).

        “A district court abuses its discretion if it applies an incorrect legal standard,

applies the law in an unreasonable or incorrect manner, follows improper

procedures in making a determination, or makes findings of fact that are clearly

erroneous.” Citizens for Police Accountability Political Comm. v. Browning, 572

F.3d 1213, 1216–17 (11th Cir. 2009).

                                      IV. DISCUSSION

        In her pre-trial deposition, Higgs testified about several prior trips and/or

falls she had over a span of one year preceding the accident at issue. She attributed

her tripping accidents to her failure to step high enough (pick up her feet). Her


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medical records also document several falls, and her Facebook post notes that she

has the ability to “trip over completely nothing.” Higgs’s counsel moved to have

this evidence excluded, arguing that it was unduly prejudicial under Civil

Procedure Rule 403. The district court agreed and granted the motion.

      A district court’s decision to exclude evidence is “an extraordinary remedy

which should be used sparingly,” and the court may exclude relevant evidence

“only when unfair prejudice substantially outweighs probative value.” United

States v. King, 713 F.2d 627, 631 (11th Cir. 1983) (citation omitted). Thus, “the

balance should be struck in favor of admissibility,” and courts must “maximize[e]

[the evidence’s] probative value and minimiz[e] its undue prejudicial impact,”

United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010). Thus, a

district court’s “discretion to exclude evidence under Rule 403 is narrowly

circumscribed.” United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006).

      In our view, the district court abused its discretion in excluding evidence of

Higgs’s prior falls because its probative value was greater than any possible

prejudice. The evidence of prior falls provides a possible explanation for her harm

other than Costa’s negligence. “The defendant’s ability to present alternate causes

is of paramount importance in allowing for an adequate defense.” Aycock v. R.J.

Reynolds Tobacco Co., 769 F.3d 1063, 1069-70 (11th Cir. 2014) (noting that


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because under Florida law, a plaintiff has the burden on all four elements of

negligence, courts treat evidence presented by plaintiffs differently than evidence

produced by defendants to rebut causation). The evidence was relevant and

probative of Higgs’s knowledge with regard to the cause of her fall. Causation was

an issue at trial, as well as the liability of each party, and the damages. Higgs had

the burden of proving causation, and Costa was unable to challenge sufficiently her

causative theory because it was unable to present this evidence to diminish its

liability.

       We also conclude that the evidence of prior falls was relevant to the

determination of comparative fault. The jury found Costa 85% liable and Higgs

15% liable, and the jury’s allocation of fault would have been different if it had

heard evidence of Higgs’s prior falls. This evidence was also relevant to damages

because it would show her pre-existing conditions and her propensity to fall.

       The error committed by the district court was also compounded by the fact

that, during his final rebuttal closing argument, Higgs’s counsel stated several

times to the jury that Higgs had “never fallen before” and that “she didn’t fall

down and stumble all the time.” Higgs’s counsel also told the jury: “Did you know

Ms. Higgs has never fallen before, never been injured, never had an accident

before?” Because Costa’s counsel was unable to rebut this, Costa suffered


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substantial prejudice and did not receive a fair trial. Accordingly, we reverse the

judgment entered on the jury’s verdict and remand this case for a new trial.

REVERSED and REMANDED.




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DUBINA, Circuit Judge, concurring.

      I concur fully in the judgment of the court but write specially to add a

second reason for reversing the district court’s judgment: the jury’s award of $1.3

million substantially exceeds the evidence of damages presented at trial. Contrary

to the district court’s findings, there was not “extensive evidence regarding

Higgs‘[s] painful surgery, unsightly scar, months of therapy, persistent pain and

discomfort, limitations on performing daily activities, impaired ability to play with

her grandchildren and to enjoy her hobbies, and fear of needing future treatment.”

(R. Doc. 153, p. 4.) Thus, I conclude that the district court abused its discretion in

allowing such an excessive verdict based on the scant evidence of pain, suffering,

past medical expenses, and future medical expenses. The award is more than 25

times the amount of out-of-pocket expenses Higgs incurred as a result of the

accident. Accordingly, I would also reverse the judgment of the district court

based on the excessive verdict.




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