                                                       [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS
                                                      FILED
                  FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                    ________________________   ELEVENTH CIRCUIT
                                                  MARCH 26, 2008
                                                THOMAS K. KAHN
                          No. 07-11294
                                                     CLERK
                     ________________________

                D. C. Docket No. 04-00023-CV-JEC-3

WILLIAM DAVID MORRISON,
KIM L. MORRISON,


                                                  Plaintiffs-Appellants,

                                versus

BOB B. MANN, JR., M.D.,
LISA KAY DOUTHITT PARSONS, R.N.,
PAPP CLINIC, P.C.,


                                                  Defendants-Appellees.


                     ________________________

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


                           (March 26, 2008)
Before BIRCH and FAY, Circuit Judges, and RODGERS *, District Judge.

PER CURIAM:

       Plaintiff-appellants William David Morrison (“Dave”) and Kim Morrison

(“Kim) (jointly, the “Morrisons”) appeal the district court’s judgment entered

following a jury verdict for the Morrisons in their medical malpractice action. The

Morrisons also appeal numerous evidentiary rulings and the district court’s orders

granting partial summary judgment to defendant-appellee Lisa Kay Douthitt

Parsons, R.N. (“Parsons”) on the Morrisons’s claim for punitive damages,

directing a verdict for defendants-appellees Bob B. Mann, Jr., M.D. (“Mann”) and

PAPP Clinic, P.C., (the “Clinic”) on the Morrisons’s claims of breach of contract

and for related attorney’s fees, and denying the Morrisons’s requests for sanctions.1

We DISMISS the Morrisons’s appeal of the jury verdict, and AFFIRM the district

court’s underlying rulings.

                                      I. BACKGROUND

       Dave was injured during an examination at the Clinic which was conducted

by Parsons, under the direction of Mann. During the examination, Parsons



       *
          Honorable Margaret C. Rodgers, United States District Judge for the Northern District
of Florida, sitting by designation.
       1
        Although the Morrisons’ notice of appeal indicated that they appeal “each and every”
order entered by the district court in their case, our review is limited to those orders addressed in
the Morrisons’ briefs. R13-207.

                                                  2
administered an acid, which had a consistently higher concentration than the acid

which should have been used, and Dave received first- and second-degree burns.

Dave was treated for his condition over the next few weeks but continued to have

problems.

      The Morrisons subsequently filed a complaint, alleging medical malpractice

and ordinary negligence against Mann, Parsons, and the Clinic, and breach of an

implied contract against Mann and the Clinic. In the complaint, the Morrisons

requested actual damages and “attorney fees, costs of litigation and punitive

damages.” R1-1 at 39.

      Mann, Parsons, and the Clinic moved for partial summary judgment on the

issue of punitive damages. The district court denied the motion as to Mann and the

Clinic, but granted it as to Parsons. The district court found that Parsons’s

culpability “at most, amount[ed] to negligence” and that there was no evidence that

her behavior exhibited a conscious indifference to the consequences of her actions

or a malicious, wanton, or willful manner. R7-91 at 8.

      Mann and the Clinic conceded liability during their opening trial statements

and defended only on damages. R17 at 138-39. During the trial, Mann moved for

a directed verdict on the implied contract claim and the claim for attorney’s fees

under O.C.G.A. § 13-6-11. The district court granted the motion, noting that the



                                           3
implied contract claim, if viable, was subsumed into the medical malpractice claim

and that the Morrisons had failed to properly plead or allege a claim for attorney’s

fees under § 13-6-11. R19 at 950-51, 953.

       The jury returned a verdict of $70,000 for the Morrisons. R21 at 148. It

found that Mann and the Clinic were liable for medical malpractice; that Parsons

was liable for ordinary negligence, but not liable for medical malpractice; and that

neither Mann nor the Clinic acted with “entire want of care” necessary for punitive

damages. Id.

                                     II. DISCUSSION

       The Morrisons argue that the awarded damages were inadequate and that the

district court erred in deciding numerous evidentiary rulings, granting partial

summary judgment to Parsons on their claim for punitive damages, directing a

verdict on the breach of contract claim and related attorney’s fees, and denying

their motions for sanctions.2



       2
          The Morrisons argue that the district court erred in granting a motion for directed
verdict on their motion for attorney’s fees under O.C.G.A. § 9-11-68. Under § 9-11-68, a
prevailing party may request, at the time when a verdict is rendered, that the jury determine
whether the opposing party presented a frivolous defense. § 9-11-68(e). If a frivolous defense
is found, attorney’s fees may be awarded. § 9-11-68(e)(2).
        The Morrisons’s complaint was filed in February 2004. Section 9-11-68 became
effective on 16 February 2005. Because § 9-11-68 imposes additional duties and obligations
upon a party to pay attorney’s fees, it is a substantive law which is not to be applied
retroactively. Fowler Prop., Inc. v. Dowland, 646 S.E. 2d 197, 200 (Ga. 2007). The district
court did not err in granting a directed verdict on this issue.

                                               4
A. Jurisdiction

       Generally, a prevailing party lacks standing to appeal because a favorable

judgment is assumed to have caused that party no harm. Agripost, Inc. v. Miami-

Dade County, ex rel Manager and Bd. of County Comm’rs, 195 F.3d 1225, 1230

(11th Cir. 1999) (citing Deposit Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445

U.S. 326, 333, 100 S. Ct. 1166, 1171 (1979)). An appeal is not precluded if the

prevailing party may be prejudiced by the collateral effect of the judgment or on

issues not addressed by that judgment and in which the prevailing party retains a

personal stake. Id.; Deposit Guar. Nat’l Bank, 445 U.S. at 333, 336, 100 S. Ct. at

1171, 1173. To preserve a jury finding on damages for appellate review, the trial

court must have been given an opportunity to exercise its discretion on a motion

for new trial. Electro Servs., Inc. v. Exide Corp., 847 F.2d 1524, 1530 (11th Cir.

1988) (citing Baker v. Dillon, 389 F.2d 57, 58 (5th Cir. 1968)). Absent a motion

for new trial, we have no basis for appellate review, as a party may not seek “a new

trial for damages for the first time on appeal.” 3 Id.; United States E.E.O.C. v.

Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1251 (11th Cir. 1997).

       The Morrisons did not file any post-judgment motions to alter or amend the



       3
         We will, however, review a damages award if the appellant clearly presented the issue
of excessiveness of that award to the trial court, whether or not the “magic words ‘new trial’”
were used. Carlton v. H.C. Price Co., 640 F.2d 573, 577 (5th Cir. 1981).

                                               5
judgment, for a new trial, for judgment as a matter of law, or for relief from the

judgment or otherwise provide the district court with an opportunity to exercise its

discretion regarding the awarded damages. They lack standing to appeal this

award, and we DISMISS that portion of their appeal.

B. Evidentiary rulings

       The Morrisons maintain that the district court erred by excluding the

testimony of their expert, Dr. Gerardo Lionel Sotomayor (“Sotomayor”), and by

permitting the testimony of Mann’s expert witness, Dr. Carney (“Carney”).

Although the Morrisons had initially identified Sotomayor as a fact witness, they

subsequently identified him as an expert witness in their response to the motion for

partial summary judgment on punitive damages filed by Mann and the Clinic.

They argue that their untimely submission of Sotomayor’s affidavit, which

addressed the standard of care, was necessary to rebut the affidavit of Carney,

whom Mann and the Clinic first identified in the summary judgment motion.4 The

district court granted the motion to strike because the Morrisons’s justification for

their failure to timely identify Sotomayor was without factual support. The district

court noted that Carney’s affidavit addressed only the issue of actual damages,

which was not at issue in the summary judgment motion. R7-91 at 3; R13-194 at


       4
         The Morrisons had previously identified Howard Rottenberg, M.D., as an expert
regarding the standard of care. R1-5 at 7-8, Attachment A at 11.

                                              6
6. The district court also granted Mann’s motion to exclude Sotomayor’s

testimony at trial, finding that the Morrisons failure to timely disclose Sotomayor

as an expert was plainly “harmful” and not substantially justified. R13-194 at 10

n.5, 11-13.

       During the trial, Carney testified as to the symptoms of a disease, suffered

by Dave, which could cause similar problems to those which Dave suffered as a

result of his injuries.5 R20 at 1010-21. After Carney had testified, Morrisons’s

attorney moved to strike his testimony about the disease and explained that the

objection was not raised earlier because he did not want to emphasize the disease

before the jury. Id. at 1051-52. The district court denied the motion, noting that

Carney’s testimony properly addressed the causation of pain. Id. at 1051-52, 1055-

56. The Morrisons’s subsequently moved for a mistrial, based on Carney’s

testimony, or for a curative instruction. R12-182. The district court denied the

mistrial, but asked for discussion on a curative instruction. R21 at 9. The

Morrisons’s attorney responded “I think the curative instruction would deal with

[our] request . . . that the testimony relating to [Dave] having [the disease] is not a

matter for your consideration and . . . that testimony of the expert witness about

that should not be considered.” Id. Following additional discussion, the parties


       5
         Dave had testified earlier that he had the disease, and supporting evidence was included
in the admitted medical records. R17 at 304; R19 at 813, 818.

                                                7
agreed not to address the disease during their closing arguments. The district court

stated that no curative instruction would be given and confirmed that such was

agreeable with Morrisons’s counsel. Id. at 17-18. Morrisons’s counsel responded

that “we’ve done an in-house curative.” Id. at 18.

      The Morrisons also argue that the district court erred by redacting portions

of witness Larry Long’s deposition testimony, specifically as to the causation of

his similar injuries. The district court permitted Long’s testimony to establish that

Mann was on notice of the potential for similar injuries but limited his testimony as

to the causes of ongoing medical problems because he was “not an expert.” R18 at

634, 641, 642-43, 646, 649-50.

      We review the district court’s evidentiary rulings for abuse of discretion and

will reverse only upon a showing of substantial harm. Cox v. Administrator

United States Steel & Carnegie, 17 F.3d 1386, 1413 (11th Cir. 1994). Absent a

timely objection to evidence, we review for clear error and will reverse only where

the challenged evidence presents an obvious and substantial error which seriously

effects the judicial proceeding. Christopher v. Cutter Labs., 53 F.3d 1184, 1192

(11th Cir. 1995). Further, a party cannot complain on appeal of an alleged error

that they themselves induced or invited. Thunderbird, Ltd. v. First Fed. Savings

and Loan Ass’n of Jacksonville, 908 F.2d 787, 794-95 (11th Cir. 1990).



                                          8
      The Morrisons fail to show how they were substantially justified in their

untimely disclosure of Sotomayor as an expert witness or how they were

substantially harmed by the exclusion of his testimony or by the redactions placed

on Long’s testimony. The district court did not abuse its discretion in these rulings

or in permitting Carney’s testimony, especially in light of the Morrisons’s

counsel’s agreement that a curative instruction was not necessary.

C. Partial Summary Judgment for Parsons

      The Morrisons argue that partial summary judgment was erroneously

granted to Parsons on the punitive damages issues but fail to present any facts or

law to support their argument. As the district court reasoned, summary judgment

was warranted because there was no evidence to support the claim that Parsons

acted in a malicious, wanton, or willful manner.

D. Breach of Contract and Attorney’s Fees

      The Morrisons argue that the district court erred by preventing them from

submitting their claims for breach of contract and associated attorney’s fees to the

jury, because Mann and the Clinic admitted that they had contracted with Dave to

provide competent medical care. See R1-1 at 32; R1-4 at 34. The Morrisons

maintain that they were eligible for attorney’s fees because Mann and the Clinic

acted in bad faith and caused them unnecessary trouble and expense, and contend



                                          9
that they specifically requested the attorney’s fees in their prayer for relief.

      In Georgia, a plaintiff cannot recover twice for the same injuries, and when

suing, for medical malpractice, must choose between a contract or tort claim. Bell

v. Sigal, 199 S.E. 2d 355, 356-57 (Ga. App. 1973). In a breach of contract claim,

attorney’s fees are allowable by a jury if “specially pleaded” and “the defendant

has acted in bad faith in making the contract, . . . or caused the plaintiff

unnecessary trouble and expense.” O.C.G.A. § 13-6-11. The plaintiff’s allegation

of bad faith must relate to the acts of the injury and not to the conduct during

litigation. Meyer v. Trux Transp., Inc., No. Civ A 105CV-02686-GE, 2006 WL

3246685 *5 (N.D. Ga. Nov. 8, 2006) (citation and quotation omitted).

      The district court did not err in granting a directed verdict on the breach of

contract claim as there was no basis for this claim separate from that of the medical

malpractice claim. That claim is now moot as the jury found liability on the

Morrisons’s medical malpractice tort claim. The district also did not err in

granting a directed verdict on the related attorney’s fees, as the Morrisons did not

specially plead the attorney’s fee statute and did not allege any bad faith or any

efforts to cause any unnecessary trouble or expense by Mann or the Clinic.

E. Sanctions

      The Morrisons argue that the district court erred in failing to sanction



                                           10
Parson’s counsel for initiating ex parte communication with the district court and

Mann and the Clinic’s attorney for inappropriately contacting the Morrisons’s

expert witnesses.

       The Morrisons moved to disqualify or sanction Parsons’s counsel, Heather

Miller (“Miller”), and noticed her for deposition, arguing that Miller’s conduct was

consistent with a pattern of inappropriate conduct by counsel for Mann, Parsons,

and the Clinic. They complained that, through communications that they had

received from Miller, Miller admitted that she had made a telephone call, on behalf

of all parties, to the district court deputy clerk to inquire as to filing deadline dates.

In an order addressing the motion, the district court commented that it did not view

Miller’s call as being in contravention of the local rules, as “[l]awyers regularly

call courtroom deputies to inquire about various administrative matters.” R9-137

at 5. It suggested that the call was unnecessary but served to notify the district

court of its oversight in setting deadlines and that the proper method for handling

such an inquiry was by motion. Id. at 5-6. The district court did not infer any bad

motive on Miller’s behalf, but simply a lack of familiarity with the court’s practice.

Moreover, the district court found that the Morrisons suffered no prejudice as a

result of the call because it was immediately disclosed to their attorney and made

in furtherance of the same objective sought by the Morrisons. It denied the



                                            11
Morrisons’s motion to disqualify Miller and granted Parsons’s motion to quash the

notice of Miller’s deposition, noting that Morrisons’s counsel had overstepped and

that a deposition would only be permitted to preserve trial testimony, which Miller

did not have.

      The Morrisons have failed to show any prejudice as a result of the district

court’s order. The district court did not abuse its discretion in denying the

Morrisons’s motion to disqualify Miller or for sanctions.

                                III. CONCLUSION

      For the reasons stated above, we DISMISS the Morrisons’s appeal from the

jury verdict and AFFIRM the district court’s orders on the remaining issues.




                                          12
