          Case: 17-10399   Date Filed: 04/10/2018   Page: 1 of 12


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10399
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:14-cv-23460-KMW



DOROTHY JACKSON,

                                                           Plaintiff-Appellant-
                                                               Cross Appellee,

                                 versus

NCL AMERICA, LLC,

                                                         Defendant-Appellee-
                                                            Cross Appellant,

PRIDE OF AMERICA SHIP HOLDING, LLC,

                                                                    Defendant.

                      ________________________

              Appeals from the United States District Court
                  for the Southern District of Florida
                     ________________________

                            (April 10, 2018)
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Before ED CARNES, Chief Judge, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:

      While on a cruise ship, Dorothy Jackson slipped on an onion peel and fell.

She brought several claims under maritime law against Norwegian Cruise Line

America. After a bench trial, the district court ruled in her favor on one claim and

in Norwegian’s favor on the others. Jackson appeals, and Norwegian cross-

appeals.

                                         I.

      Jackson was a utility hand on a Norwegian cruise ship. On November 16,

2012, a day before Jackson’s five-month contract ended, she and a coworker,

Erroll Davis, were walking along one of the ship’s corridors to get food at the crew

mess. Although passengers could access the corridor, they did not have access to it

on the day of the incident. As Jackson was walking and writing down her address

to give to Davis, she slipped on an onion peel on the ground near the ship’s

garbage disposal area. Neither Jackson nor Davis saw the onion peel before

Jackson slipped and fell. Davis picked up the onion peel, which he said “looked

fresh,” and threw it away. Jackson went to the ship’s infirmary and reported pain

in her right shoulder, lower back, and right hip. As scheduled, she disembarked

the vessel the following day to return to her home in New Orleans, Louisiana.




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       Less than a week later, a Norwegian employee emailed Jackson to

coordinate her return to work in late January. After Jackson told him that she

needed to see a doctor before she could return, he directed her to contact an

employee from Norwegian’s medical department, which Jackson failed to do.

Jackson hired an attorney who advised her to see a local physician, which she did.

Over a month later Jackson hired a new attorney, and he advised her to see a

different physician, Dr. James Butler. Norwegian advised Jackson’s attorney 1 on

multiple occasions that: “[W]e have arranged for your client to see a number of

highly qualified physicians. If your client instead elects to see other physicians at

your urging or otherwise, [Norwegian] will reimburse at its usual costs for such

treatment that is medically necessary, to the point of maximum medical cure.”

       From 2013 to 2016, Jackson had two right knee surgeries, a left knee

surgery, a right shoulder surgery, and a back surgery. All of the surgeries were

performed by a physician chosen by Jackson (Dr. Butler), who was not within

Norwegian’s network. Norwegian reimbursed Jackson at its network rate for the

three knee surgeries and the shoulder surgery, as well as her office visits and

physical therapy. It refused to reimburse her for the back surgery. Norwegian

explained that Jackson had failed to disclose during her application process her



       1
            Unless otherwise noted, all references to Jackson’s “attorney” are to the second
attorney.


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previous back pain. Norwegian argued that the back surgery was related to that

undisclosed condition, and as a result, it was not obligated to pay for it.

       Jackson sued Norwegian, asserting claims of Jones Act negligence,

unseaworthiness, maintenance, and cure. After a bench trial, the district court

entered judgment in favor of Jackson on the cure claim, although it limited her

recovery to the rate that Norwegian would have paid for her back surgery had a

physician in its network performed the surgery. It ruled in favor of Norwegian on

the remaining three claims. This is Jackson’s appeal and Norwegian’s cross-

appeal. 2


       2
          With a few exceptions not applicable here, we can review only final judgments of
district courts. See 28 U.S.C. § 1291. The parties filed their notices of appeal after the district
court issued its “Final Judgment” but before it issued its order denying Jackson’s postjudgment
motion for prejudgment interest. Because the district court has resolved that postjudgment
motion, its “Final Judgment” is now final enough to give us jurisdiction to review it. Federal
Rule of Appellate Procedure 4(a)(4)(B)(i) provides that:
       If a party files a notice of appeal after the court announces or enters a judgment —
       but before it disposes of any motion listed in Rule 4(a)(4)(A) — the notice
       becomes effective to appeal a judgment or order, in whole or in part, when the
       order disposing of the last such remaining motion is entered.
Among the motions listed in Rule 4(a)(4)(A) is a motion “to alter or amend the judgment under
Rule 59” of the Federal Rules of Civil Procedure. Fed. R. App. P. 4(a)(4)(A)(iv). “[A]
postjudgment motion for discretionary prejudgment interest is a Rule 59(e) motion.” Osterneck
v. Ernst & Whinney, 489 U.S. 169, 177, 109 S. Ct. 987, 992 (1989). As a result, the parties’
notices of appeal became effective when the district court issued its order disposing of Jackson’s
postjudgment motion for prejudgment interest, Fed. R. App. P. 4(a)(4)(B)(i); see Stansell v.
Revolutionary Armed Forces of Colom., 771 F.3d 713, 745–46 (11th Cir. 2014) (“[A] notice of
appeal filed during the pendency of a Rule 59 motion is simply suspended.”); Narey v. Dean, 32
F.3d 1521, 1524 (11th Cir. 1994) (“[U]nder [Federal Rule of Appellate Procedure] 4(a)(4) . . . ,
an otherwise timely notice of appeal filed before the disposition of a Rule 59 motion is not
voided but instead merely lies dormant while the motion is pending, and the notice of appeal
becomes effective as of the date of the order disposing of the Rule 59 motion.”). We have
jurisdiction over this appeal.


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                                           II.

      “After a bench trial, we review the district court’s conclusions of law de

novo and the district court’s factual findings for clear error.” Proudfoot Consulting

Co. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). “A finding of fact is clearly

erroneous when the entirety of the evidence leads the reviewing court to a definite

and firm conviction that a mistake has been committed.” Dresdner Bank AG v.

M/V Olympia Voyager, 446 F.3d 1377, 1380 (11th Cir. 2006).

                                           III.

                                           A.

      Jackson first contends that the district court erred by ruling that she failed to

present sufficient evidence on her negligence claim. To succeed on her negligence

claim, Jackson had to prove that Norwegian had actual or constructive notice of the

purported dangerous condition, that is, the onion peel on the ground. Keefe v.

Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). Jackson argues

that the district court erred in ruling that she failed to present sufficient evidence of

Norwegian’s notice of the dangerous condition. She asserts that the onion peel

must have been dropped by a fellow crewmember, and because the crewmember

created the dangerous condition, Norwegian had actual notice of it.

      Even if, as Jackson claims, a crewmember dropped the onion peel and

created the dangerous condition, that does not establish that Norwegian had notice



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of it. Norwegian must have had “actual or constructive notice of the risk-creating

condition.” See Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir.

1990) (quoting Keefe, 867 F.2d at 1322). We have rejected the position that notice

can be imputed to a shipowner merely because the shipowner created the

dangerous condition, reasoning that such a rule would obviate Keefe’s requirement

that the shipowner have notice of the risk-creating condition.3 See id. at 1359.

       Jackson presented no evidence of Norwegian’s actual notice of the onion

peel and instead relied on the testimony that neither she nor Davis dropped the

onion peel, and that the ship’s passengers did not have access to the area where

Jackson fell. That circumstantial evidence, without more, does not provide

sufficient evidence that Norwegian knew about the dangerous condition. Because

Jackson failed to provide sufficient evidence that Norwegian had actual notice of

the dangerous condition, and because she concedes that “concepts of constructive

notice have no place in this case,” the district court did not err in concluding that

Jackson failed to present sufficient evidence of Norwegian’s negligence.4



       3
         In this Court’s Sorrels decision we applied a standard like the one Jackson proposes, see
Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1287 (11th Cir. 2015), but we did so because the
defendant did not “take issue with [the] standard,” and we explicitly did not “pass[ ] on its
correctness.” Id.
       4
          Jackson contends in the alternative that she need not prove notice because Norwegian’s
negligence “arose from the negligent act of a fellow crewmember in dropping the onion peel on
the floor of the vessel in an area exclusively used by the crew.” She fails to cite any binding
precedent from this circuit applying or accepting such a rule. In any event, she failed to present
sufficient evidence that a fellow crewmember negligently dropped the onion.


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                                          B.

      Norwegian contends that the district court erred by ruling in favor of

Jackson on her cure claim because, it argues, it should have prevailed on its

affirmative defense under McCorpen v. Cent. Gulf Steamship Corp., 396 F.2d 547

(5th Cir. 1968). Jackson argues that the district court got it right on her cure claim,

except that it erred by limiting her recovery for medical expenses to Norwegian’s

network rates.

                                          1.

      To establish a McCorpen defense, Norwegian had to show that (1) Jackson

intentionally misrepresented or concealed medical facts; (2) the non-disclosed facts

were material to its decision to hire her; and (3) a connection exists between the

withheld information and the injury complained of in this lawsuit. Brown v.

Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005) (citing

McCorpen, 396 F.2d at 548–49). Norwegian contends that, although the district

court correctly found that it satisfied the first two elements of the McCorpen

defense, the court erred in ruling that Norwegian failed to meet the third element

— the “connection” element — by applying that element too rigidly. Norwegian

cites the Fifth Circuit’s Brown decision and asserts that it “need only show that the

prior and present injuries affect the same location on the body.” Because




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Jackson’s injuries “affect the same body part,” Norwegian insists that “the

requisite connection is established.”

      We disagree. In the Brown decision, the evidence showed that the plaintiff

failed to tell his employer that he had previously suffered a lumbar strain with

possible disc herniation at the L4-L5 and L5-S1 spinal segments. Id. at 176. At

trial the plaintiff’s expert witness acknowledged that the “prior back strains were to

the same lumbar-spine region as [the plantiff’s] current back problem.” Id.

(emphasis added). In discussing the third element of the McCorpen defense, the

court cited several decisions where a causal link was established because the

preexisting injuries were in the “exact” same area as the injuries complained of in

the lawsuit. Id. at 176–77. The court also cited two decisions where a causal link

was not established. See id. at 177 n.9. In one of them, the employer failed to

show “that the claimant in fact suffered from a preexisting condition or disability.

[The employer] merely showed that the claimant complained of back pain on a

prior occasion.” Id. (quotation marks omitted). In the other one, the employer

failed to show “that the claimant’s preexisting disability was identical or similar,

and there was no evidence of a previous similar diagnosis.” Id. (quotation marks

omitted). The Brown court found those two cases distinguishable and held that,

because the plaintiff’s “injuries were to the same location of the lumbar spine, the

causal link between the concealed information and the new injury was



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established.” Id.; see also Meche v. Doucet, 777 F.3d 237, 249 (5th Cir. 2015)

(holding that the “connection” element was satisfied where the plaintiff

“aggravated his pre-existing lumbar illness”).

      The record shows that as early as 2008 Jackson had seen doctors concerning

pain in her lower back. The notes from her December 2008 doctor’s visit indicate

that an X-ray of Jackson’s lumbar spine “show[ed] some evidence of degenerative

disk disease at L2-L3 and L3-L4.” After she fell in September 2012, Jackson

sought treatment for the back injury she suffered from the fall. An MRI report

from May 2013 noted disc bulges at L2-L3 and L3-L4. But notably that report

also indicated disk herniation at L4-L5 and L5-S1, and Jackson’s December 2015

hospital records show that she was diagnosed with and underwent surgery for

lumbar disk herniation at L4-L5 and L5-S1.

      Given that evidence, along with the expert testimony about Jackson’s

medical conditions and surgeries, the district court did not clearly err in finding

that “there is no compelling evidence of a connection between Jackson’s pre-2012

back pain, which all agree w[as] recurrent and degenerative in nature, and the

hernia[ted disks] for which Dr. Butler performed surgery.” Although the two

injuries do not have to be identical, Brown, 410 F.3d at 176, simply showing that

Jackson’s previous pain and her injury from the fall affect the same body part

without more specificity does not suffice, see id. at 176–77. Because Norwegian



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failed to show a connection between Jackson’s degenerative disk issues at L2-L3

and L3-L4 and her disk herniation at L4-L5 and L5-S1, the district court did not err

in concluding that Norwegian failed to satisfy the third element of the McCorpen

defense. As a result, it did not err in ruling in favor of Jackson on her cure claim.

                                              2.

       Jackson contends that the district court erred in limiting her recovery on her

cure claim to Norwegian’s network rates. Maritime law provides that “if a seaman

. . . seeks his own private physician rather than another chosen by the employer he

forfeits only that amount of compensation, if any, that would have been saved if he

had received the necessary care from the employer’s doctor . . . .” Caulfield v. AC

& D Marine, Inc., 633 F.2d 1129, 1134 (5th Cir. 1981). 5 Jackson argues that

because “there is no evidence that [she] or her attorney were ever advised of

[Norwegian’s] recommended physician,” the district court “committed a clear error

of fact” in concluding that she sought “private medical care in lieu of or instead of

some care offered by” Norwegian. That is not correct.

       The evidence shows that on November 24, 2012, in response to an email

from an employee of Norwegian’s personnel department, Jackson informed

Norwegian for the first time that she was still hurting from her fall and needed


       5
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.


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medical care. That employee directed her to contact an employee from

Norwegian’s medical department, but Jackson never did. Instead, she hired an

attorney (the first attorney) who told her to go to a doctor at a local clinic. She did

and that doctor cleared her to go back to work. She then hired a new attorney who

advised her to see Dr. Butler, a physician at a different clinic. The new attorney

also directed her not to speak with anyone from Norwegian.

      The evidence also shows that on December 4, 2012 the cruise ship sent

Jackson’s medical records to a Norwegian crew claims manager. On December

13, the claims manager emailed an employee from Health Systems International, a

company that “worked with [Norwegian] to help provide and arrange medical care

for crew members,” to schedule an appointment for Jackson and to advise the

company that Jackson had retained an attorney. At trial Norwegian’s

representative testified that the employee from Health Systems International

arranged an appointment for Jackson with an orthopedic surgeon, Dr. Shackleton.

And a January 4, 2013 email from a Health Systems International employee to the

Norwegian crew claims manager reflects that the employee had tried for “weeks”

to contact Jackson about her appointment but was unable to reach her.

      On January 18, 2013, Jackson’s attorney instructed Norwegian “not to

correspond directly with Ms. Jackson any further, and that the law firm would be

taking on the scheduling and coordination of her medical care, and they would be



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forwarding information to the company.” Norwegian’s representative testified that

it responded to the attorney’s letter and informed him that “if Ms. Jackson elected

to treat with her own doctors we would reimburse those costs, and that we would

do so up to our network rate.”6 He also stated that he “believe[d] Ms. Jackson

never attended her appointment with Dr. Shackleton” because “she had obtained

counsel who advised [Norwegian that counsel] would make the arrangements for

[her] medical care.”

       The upshot is that Jackson, following the advice of her attorneys, chose not

to speak with Norwegian and instead to seek treatment with her own private

physicians. She did that despite the fact that Norwegian told her attorney that “if

she picked a doctor more expensive than the doctors that Norwegian selected for

her, . . . she would be responsible for the difference in that pay.” Based on the

evidence in the record, we are not left with a definite and firm conviction that the

district court made a mistake in determining that Jackson sought private medical

care instead of medical care offered by Norwegian. See Dresdner Bank, 446 F.3d

at 1380.

       AFFIRMED.



       6
         That Jackson or her attorneys did not know the name of the doctor in Norwegian’s
network is of no moment. Health Systems International attempted to contact Jackson for weeks
to inform her of her appointment with Dr. Shackleton, and Norwegian repeatedly advised
Jackson’s attorney that Norwegian had its own in-network doctors and was willing to offer “any
further assistance [it] could provide.”


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