                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                             ________________________                U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                           January 17, 2007
                                    No. 06-11422
                                                                        THOMAS K. KAHN
                              ________________________                        CLERK

                          D. C. Docket No. 03-02284-CV-BE-E

LEVOYER WILSON,

                                                                         Plaintiff-Appellee,

                                            versus

NHB INDUSTRIES, INC.,

                                                                       Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________

                                    (January 17, 2007)


Before DUBINA and WILSON, Circuit Judges, and CORRIGAN,* District Judge.

PER CURIAM:



       * Honorable Timothy J. Corrigan, United States District Judge for the Middle District of
Florida, sitting by designation.
      Defendant-appellant NHB Industries, Inc. (“NHB”) appeals the district

court’s final judgment following a jury verdict in favor of NHB’s former

employee, plaintiff-appellee Levoyer Wilson, in this case brought under the

Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. NHB raises four

grounds on appeal: first, that Wilson failed to carry his burden of proof to

demonstrate that he suffered a serious health condition within the meaning of the

FMLA; second, that Wilson failed to carry his burden of proof to demonstrate that

NHB had notice that Wilson’s absences might be protected under the FMLA;

third, that the district judge erred in overruling NHB’s objection to Wilson’s

counsel’s misstatement of law during closing argument and in failing to give a

curative instruction; and fourth, that the district judge abused her discretion in

awarding liquidated damages. Because the Court finds the third issue to be

dispositive, it need not reach decision on the other issues.

      “[T]he trial judge is given considerable discretion to control the tone of

counsels’ arguments and, absent an abuse of discretion, the decision of the trial

court, which has had the opportunity to hear the offensive remarks within the

context of the argument and to view their effect on the jury, should not be

disturbed.” Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988). In its

review, this Court considers “the entire argument, the context of the remarks, the

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objection raised, and the curative instruction to determine whether the remarks

were ‘such as to impair gravely the calm and dispassionate consideration of the

case by the jury.’” Id. (quoting Spach v. Monarch Ins. Co., 309 F.2d 949, 953 (5th

Cir. 1962)).

       To prove his claim that NHB interfered with Wilson’s FMLA protected

rights, Wilson had the burden of demonstrating that he suffered from a “serious

health condition” within the meaning of the FMLA at the time of his absences

from work, that he was an eligible employee, that he gave appropriate notice to

NHB such that it should have made further inquiry to determine whether the

absences were the result of a potentially qualifying FMLA reason, and that he was

entitled to a benefit under the FMLA that NHB denied him. 29 U.S.C. §§

2612(a)(1)(D), 2615(a)(1). See Drago v. Jenne, 453 F.3d 1301, 1305-06 (11th Cir.

2006); Cruz v. Publix Super Mkts., Inc., 428 F.3d 1379, 1382-83 (11th Cir. 2005).

      In their closing arguments, counsel for both sides pointed to evidence, or the

lack thereof, bearing on the first and third elements- - whether Wilson had

demonstrated he suffered from a serious health condition and whether he had

given notice to NHB that would trigger its duty to investigate further. In his

closing, counsel for NHB argued that Wilson had failed to establish that he had a

serious health condition because he failed to put on testimony from any medical

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provider, such as Dr. Hakim [plaintiff’s gastroenterologist] or any emergency

room employee who could corroborate Wilson’s own testimony regarding his

condition. Tr. 363.1 NHB’s counsel again referenced Wilson’s failure to call any

medical providers to testify when describing Wilson’s failure to meet his burden

on the notice element, stating that Wilson was the only witness on his “side of the

ledger” and that he could have potentially called a “medical provider.” Tr. 365.

In rebuttal, counsel for Wilson turned to the same theme, stating the following:

               Mr. Romaniuk [counsel for NHB] tells you that we
               haven’t heard from any doctors. No doctors have been
               put on here. Ask yourself, what did NHB do to find out
               what was going on with his condition? The law doesn’t
               require Mr. Wilson to go in the first sign that he needs
               leave and carry his whole medical file with him. As the
               judge told you,2 he just has to give them enough notice
               based on all of the information previously available to
               them for them to wonder[,] does the absence relate to this
               health condition. And if it does, then the burden shifts to
               NHB. NHB never tried to call Dr. Hakim to see what
               was going on to see what they could do.

      Tr. 373-74 (emphasis added). Counsel for NHB immediately objected and

asked to approach the bench. The judge summarily overruled the objection and

Wilson’s counsel continued:



      1
          “Tr.” references are to the trial transcript, located in Vol. 6 of the ROA.
      2
          The judge had charged the jury in advance of the closing arguments.

                                                  4
      “And you even heard me ask [NHB] witnesses on the stand, what did you do

to follow up with his doctor? Nothing. . . .” Tr. 374.

       After Wilson’s counsel completed her rebuttal, the judge explained the

verdict form and then dismissed the jury to begin their deliberations. Counsel for

NHB then requested that the jury be supplementally instructed, arguing that it was

“inappropriate and unlawful” for an employer to call an employee’s medical

provider as Wilson’s counsel had argued NHB should have done, and that it was

misleading to state to the jury otherwise. Tr. 386. After hearing from Wilson’s

counsel, the judge declined to give an additional curative instruction. NHB filed a

motion for new trial on these same grounds which the court denied.

      On these facts, the Court finds the district judge abused her discretion in

failing to sustain NHB’s objection and give a curative instruction. Wilson’s

counsel’s comments, offered during rebuttal when NHB had no further

opportunity to speak to the jury, went directly to elements of Wilson’s claim that

were at issue in this case and contended that NHB should have taken action that in

fact would have been prohibited under the FMLA and other laws. See, e.g., 29

C.F.R. § 825.307(a) (explaining that an “employer may not request additional

information from the employee’s health care provider” to verify adequacy of

medical certification); U.S. Dep’t of Labor Opinion Letter regarding FMLA dated

                                         5
May 25, 2004, 2004 WL 2146933 (“an employer’s direct contact with the

employee’s health care provider is prohibited”); Health Insurance Portability and

Accountability Act (“HIPAA”), 42 U.S.C. § 1320d, et seq. In all likelihood, the

effect of Wilson’s counsel’s prejudicial comment could have been ameliorated by

a curative instruction. Instead, by overruling NHB’s timely objection and

allowing Wilson’s counsel to repeat the point, the court likely gave the imprimatur

of correctness to Wilson’s counsel’s improper suggestion. Allstate Ins. Co., 845

F.2d at 319.

      Given that the jury heard the parties’ closing arguments after they had

already been instructed on the law, and where the improper comments occurred

during Wilson’s counsel’s rebuttal when NHB had no further opportunity to speak

to the jury, and where the comments constituted a misstatement of the law which

went directly to the very issues contested in the case, the Court finds that counsel’s

improper comments, especially without a curative instruction, cast an

impermissible taint over the jury’s verdict. Id. at 318-19.

       Accordingly, the final judgment is vacated and this case is remanded for a

new trial. At the retrial, plaintiff is encouraged to consider whether to support his

position with testimony or other evidence from his medical providers.

      VACATED AND REMANDED FOR NEW TRIAL.

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