                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          MARCH 15, 2012
                            No. 11-14100
                        Non-Argument Calendar               JOHN LEY
                                                             CLERK
                      ________________________

               D.C. Docket No. 3:09-cv-00919-MHT-TFM



AUSTIN CHAZ RAMSEY,

                                                         Plaintiff-Appellant,

                                 versus

ARNOLD GAMBER,

                                                        Defendant-Appellee.

                     ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________

                            (March 15, 2012)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
       Plaintiff Austin Ramsey appeals (1) the district court’s February 7, 2011

order granting summary judgment in favor of Defendant Arnold Gamber on

Ramsey’s state-law claims of negligence and wantonness1 and (2) its separate

August 18, 2011order denying his motion to alter, amend or vacate the district

court’s summary judgment order, pursuant to Federal Rule of Civil Procedure

59(e). After review, we affirm.

       As an initial matter, Ramsey’s brief makes no argument and cites no

authority relevant to the district court’s denial of his Rule 59 motion.

Accordingly, this issue is deemed abandoned. Carmichael v. Kellogg, Brown &

Root Servs., Inc., 572 F.3d 1271, 1293 (11th Cir. 2009) (“The law is by now well

settled in this Circuit that a legal claim or argument that has not been briefed

before the court is deemed abandoned and its merits will not be addressed.”

(internal quotation marks omitted)). In any event, the district court did not abuse

its discretion by denying the Rule 59(e) motion because the evidence Ramsey

sought to introduce was available months before the district court granted

summary judgment.2 See Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006).



       1
           The district court’s jurisdiction was based on diversity of citizenship. See 28 U.S.C.
§ 1332.
       2
         Ramsey’s appellate brief also does not address the district court’s grant of summary
judgment for Defendant Gamber on Ramsey’s claim of “interference with the physician/patient
relationship.” This issue is also deemed abandoned. See Carmichael, 572 F.3d at 1293.
(“[T]his court reviews the denial of a Rule 59 motion for an abuse of discretion.”).

Thus, we discuss only the factual background and law relevant to Gamber’s

motion for summary judgment.

                               I. BACKGROUND

A. Ramsey’s Injury

      Plaintiff Austin Ramsey was a scholarship football player for Auburn

University. In December 2007, Ramsey injured his spine while lifting weights.

Dr. Michael Goodlett was responsible for the health of all Auburn athletes. After

physical therapy failed to relieve Ramsey’s injury, Dr. Goodlett referred Ramsey

to an orthopedic surgeon.

      In April 2008, Ramsey underwent spinal surgery. The surgery was

successful, and in May 2008 the surgeon cleared Ramsey for a return to regular

training.

       Defendant Arnold Gamber was Auburn’s head football trainer. In May

2008, Dr. Goodlett met with Defendant Gamber and Kevin Yoxall, Auburn’s

strength coach, to develop a six-week rehabilitation schedule for Plaintiff Ramsey.

That rehabilitation schedule permitted Ramsey (1) to run and jog only for two to

three days, initially, then (2) to run and complete exercises using only Ramsey’s




                                         3
own body weight, and (3) finally, to perform seated upper-body weight-lifting and

leg-presses. Yoxall was responsible for designing athletes’ daily weight-room

regimens. Defendant Gamber was not responsible for supervising Yoxall or the

weight-room assistants.

      Dr. Goodlett approved Plaintiff Ramsey’s rehabilitation plan. When he was

leaving the May 2008 meeting, Dr. Goodlett observed that Defendant Gamber and

Yoxall “were putting together a written plan.” Defendant Gamber testified that

Dr. Goodlett verbally approved this plan. Dr. Goodlett later saw a copy of

Ramsey’s rehabilitation plan. However, no copy of the plan was introduced into

evidence and none was found in Ramsey’s medical chart.

      Beginning in late May 2008, Plaintiff Ramsey began his rehabilitation with

running and stretching for two days. Ramsey reported no pain from these

exercises. On June 2, 2008, Ramsey went to the weight room to begin the second

part of his rehabilitation, which permitted Ramsey to exercise using only his own

body weight. At the weight room, Paul Creighton, an assistant to Yoxall,

instructed Ramsey to perform squats and “box step ups” while wearing a 50-pound

weighted vest and holding two 35-pound dumbbells. In his deposition, Ramsey

testified that in the weight room on June 2, he asked Creighton whether he was




                                        4
“supposed to be doing those.”3 According to Ramsey, Creighton replied, “they’re

on the list. I don’t know who made it up.” Ramsey performed two sets of these

exercises on June 2. During the second set, he immediately felt the same pain and

tingling in his leg that he experienced before his surgery. Ramsey immediately

stopped exercising.

       After Plaintiff Ramsey’s June 2, 2008 weight training, Dr. Goodlett

examined Ramsey and found that Ramsey had re-injured his back. In January

2009, Ramsey had surgery again. Following this second surgery, Ramsey decided

not to play football, and he was medically disqualified from football due to the

risk of further injury.

B. Ramsey’s Lawsuit

       In July 2009, Plaintiff Ramsey filed a six-count complaint against

Defendant Gamber, who later moved for summary judgment on all claims.4

Ramsey opposed Gamber’s summary judgment motion, but only as to Ramsey’s

state-law claims that: Gamber negligently caused or allowed Ramsey to be

exposed to increased risk of injury by requiring him to lift weights against his

       3
           In his deposition, Ramsey did not identify the weight-room assistant as Paul Creighton.
       4
         Ramsey’s complaint also named as a codefendant Hugh Nall, Auburn’s assistant
football coach. However, Ramsey voluntarily dismissed his claims against Nall before summary
judgment.


                                                  5
physician’s instructions (Count 1); Gamber wantonly caused or allowed Ramsey to

be exposed to increased risk of injury by requiring him to lift weights against his

physician’s instructions (Count 2); and Gamber “negligently and/or wantonly

interfered with the physician/patient relationship” between Ramsey and his

orthopedic surgeon (Count 3). In a February 7, 2011 order, the district court

granted summary judgment for Defendant Gamber on all of Ramsey’s claims.

Ramsey appealed.5

                                    II. DISCUSSION6

A. Gamber’s Liability on Counts 1 (Negligence) and 2 (Wantonness)

       Under Alabama law, liability for negligence requires that (1) the defendant

owed a duty to the plaintiff, (2) the defendant breached that duty, and (3) the

breach proximately caused the plaintiff’s injury. Albert v. Hsu, 602 So. 2d 895,



       5
         In the district court, Ramsey did not oppose Gamber’s summary judgment motion with
respect to Ramsey’s claims against Gamber for outrageous conduct (Count 4), civil conspiracy
(Count 5), and violation of his civil rights pursuant to 42 U.S.C. § 1983 (Count 6). Ramsey does
not appeal the district court’s grant of summary judgment on these claims.
        In addition, on appeal Ramsey does not brief the issue of Gamber’s interference with the
physician/patient relationship. Accordingly, we do not consider these issues. Carmichael, 572
F.3d at 1293 (explaining that issues not briefed on appeal are abandoned).
       6
         A district court’s grant of summary judgment is reviewed de novo. Holloman v. Mail-
Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary judgment is appropriate when the
evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue
of material fact and compels judgment as a matter of law. Fed. R. Civ. P. 56(a); Holloman, 443
F.3d at 836.


                                               6
897 (Ala. 1992). A claim of wantonness also requires proof of a breached duty.

Ala. Power Co. v. Laney, 428 So. 2d 21, 22 (1983). Here, Plaintiff Ramsey has

introduced no evidence showing that Defendant Gamber breached a duty he owed

to Ramsey. The weight-room assistant, not Gamber, instructed Ramsey to perform

the June 2, 2008 exercises that preceded his re-injury. Though Gamber had some

responsibility for implementing Ramsey’s rehabilitation plan, Ramsey has

produced no evidence that Gamber included the injury-causing exercises in

Ramsey’s exercise regimen for June 2, 2008. Rather, Gamber testified that he had

not authorized Ramsey to exercise with weights on the day he was re-injured.

       We recognize that Ramsey claims that the missing rehabilitation plan

entitles him to an adverse inference of Gamber’s negligence and at least creates a

material issue of fact for a jury because Gamber must have destroyed the plan in

anticipation of litigation. However, Ramsey has produced no evidence that

anyone destroyed the written plan, let alone that Gamber destroyed the plan in bad

faith. See Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (“[A]n adverse

inference is drawn from a party’s failure to preserve evidence only when the

absence of that evidence is predicated on bad faith. Mere negligence in losing or

destroying the records is not enough for an adverse inference, as it does not




                                         7
sustain an inference of consciousness of a weak case.” (internal quotation marks

and citation omitted)). Indeed, evidence in the record suggests that Gamber could

not have destroyed the relevant evidence, much less destroyed it in bad faith.

Yoxall, not Gamber, was responsible for writing and recording athletes’ daily

weight-room regimens. In addition, Gamber’s employment at Auburn ended in

January 2009, months before this litigation commenced, and Gamber testified that

he left behind any documents related to his work at Auburn.

       Plaintiff Ramsey stresses his testimony that Creighton, the weight-room

assistant, told Ramsey that the weight-lifting exercises were “on the list.” Ramsey

argues that this statement shows Defendant Gamber negligently authorized the

exercises. But as the district court correctly noted, Ramsey’s testimony about

what the weight-room assistant told Ramsey is inadmissible hearsay and thus

cannot be considered on Gamber’s motion for summary judgment.7 See Reese v.

Herbert, 527 F.3d 1253, 1271 n.29 (11th Cir. 2008).

       In any event, Ramsey stated that Creighton also said, “I don’t know who

made [the list] up.” Accordingly, Creighton’s testimony, even if credited, does not


       7
         For reasons explained below, this hearsay statement is also not admissible against
Gamber as a statement by “a party’s agent or servant” because the evidence shows that weight-
room assistants were not under Gamber’s control and direction and thus were not Gamber’s
agents or servants. Fed. R. Evid. 801(d)(2).


                                               8
show that the list was the written rehabilitation plan Gamber and Yoxall

developed or that Gamber had any connection whatsoever to the alleged erroneous

list.

B. Gamber’s Vicarious Liability

        Defendant Gamber is also entitled to summary judgment on Ramsey’s

theory of Gamber’s vicarious liability for Yoxall and Creighton. Ramsey argues

that Gamber “failed to ensure” that Yoxall and Creighton, who were “under

[Gamber’s] control,” did not permit Ramsey to perform weight-lifting exercises

proscribed by the rehabilitation plan.8 Under the doctrine of respondeat superior, a

principal is vicariously liable for his agent’s negligent acts done in the scope of the

agent’s employment so long as the principal controls the means and method by

which the agent performs his work. Martin v. Goodies Distribution, 695 So. 2d

1175, 1177 (Ala. 1997); see also Ware v. Timmons, 954 So. 2d 545, 549–50 (Ala.

2006). The party relying on the doctrine of respondeat superior has the burden of

proving such a relationship between principal and agent. Ware, 954 So. 2d at 555.

        Here, the evidence in the record shows that neither Yoxall nor weight-room

assistants were Gamber’s agents. Both Gamber and Dr. Goodlett testified that


        8
         The district court construed this theory of vicarious liability as a claim of respondeat
superior. In his brief on appeal, Ramsey confirms that this theory is based on that doctrine.


                                                  9
Gamber did not supervise Yoxall and that Yoxall independently managed the

weight-room. Though Gamber testified that his recommendations for an athlete’s

rehabilitation regimen would control over Yoxall’s, Gamber also testified that he

“can’t speak to how Coach Yoxall runs his weight room.” Further, as noted

above, Yoxall drafted athletes’ daily weight-room regimens, and no evidence

suggests that Gamber controlled, supervised, or directed Yoxall in this capacity.

Nor does the record show that Gamber had the power to select or choose Yoxall or

Yoxall’s staff as his agents. See Ware, 854 So. 2d at 552 (“[F]or the purpose of

. . . respondeat superior, it is indispensable that the right to select the person

claimed to be a servant should exist.” (internal quotation mark omitted)). In sum,

Ramsey failed to demonstrate that Gamber exercised the requisite control over the

means and methods of Yoxall and his weight-room assistants to sustain liability on

a theory of respondeat superior.

C. Paul Creighton’s Deposition Testimony

      In his brief, Ramsey cites the testimony of Paul Creighton, the weight-room

assistant to Yoxall present on June 2, 2008, when Ramsey was re-injured.

Creighton’s deposition testimony was not part of the record at the time the district

court considered Defendant Gamber’s summary judgment motion. Rather,




                                           10
Defendant Gamber took Creighton’s deposition on December 30, 2010, after

discovery had concluded and after Gamber’s summary judgment motion was

submitted but before the district court had ruled on it.

      After the district court granted summary judgment for Gamber on February

7, 2011, Ramsey filed a Rule 59(e) motion to alter, amend or vacate the district

court’s summary judgment order on grounds that Creighton’s testimony showed

that the written rehabilitation plan erroneously permitted Ramsey to perform the

exercises that led to his re-injury. The district court denied Ramsey’s motion for

three reasons: (1) Ramsey failed to ask the district court to consider Creighton’s

testimony after it became available and before the district court had ruled on

Gamber’s summary judgment motion; (2) Creighton’s testimony contradicted

Ramsey’s own account of his re-injury; and (3) Creighton’s testimony did not

show that Gamber was liable for Creighton’s re-injury.

      The district court did not consider the Creighton testimony on summary

judgment. As noted above, we deem abandoned Ramsey’s appeal of the district

court’s denial of his Rule 59(e) motion to alter, amend or vacate the summary

judgment order. Accordingly, we will not consider the Creighton testimony in our

de novo review of the district court’s summary judgment order. See Welch v.




                                          11
Celotex Corp., 951 F.2d 1235, 1237 n.3 (11th Cir. 1992) (“Upon review of a grant

by a district court of a motion for summary judgment, a federal appellate court

may examine only the evidence which was before the district court when the latter

decided the motion for summary judgment.”).

                               III. CONCLUSION

      Upon review of the entire record on appeal, and after consideration of the

parties’ briefs, we affirm the district court’s grant of summary judgment to

Defendant Gamber.

      AFFIRMED.




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