             Case: 16-15837     Date Filed: 08/29/2018   Page: 1 of 16


                                                         [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-15837
                         ________________________

                     D.C. Docket No. 1:15-cv-23002-CMA



BERNA KELLNER,

                                                  Plaintiff - Appellant,

versus

NCL (BAHAMAS), LTD.,
a Bermuda Company,
d.b.a. Norwegian Cruise Line,

                                                  Defendant - Appellee.

                         ________________________

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

                                (August 29, 2018)
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Before MARCUS and WILSON, Circuit Judges, and HOWARD, ∗ District Judge.

PER CURIAM:

      While participating in an organized balloon relay onboard a cruise ship,

passenger Berna Kellner slipped on a piece of popped balloon and fell, severely

injuring herself. She sued the ship owner, NCL (Bahamas) Ltd., in federal court,

alleging that NCL negligently failed to attend to the rogue balloon fragment,

thereby causing her injuries. After Kellner rested at trial, the district court granted

NCL’s motion for a directed verdict on two distinct grounds, namely that Kellner

presented insufficient evidence of (1) causation and (2) damages. On appeal,

Kellner attacks only the district court’s holding on causation. Because Kellner

abandoned any argument targeting an independent basis for the district court’s

judgment, we must affirm.

                                           I.

      In April 2015, Berna Kellner and her husband boarded a cruise ship owned

by NCL. During the cruise, they participated in a balloon relay, wherein the

passengers divided into teams of two, one teammate walked across the dance floor

to the other teammate with a balloon in between her legs, and both teammates tried

to pop the balloon. While making her way across the dance floor with a balloon

lodged between her thighs, Kellner slipped on a piece of popped balloon that had

      ∗
            Honorable Marcia Morales Howard, United States District Judge for the Middle
District of Florida, sitting by designation.
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fallen to the floor. Crewmembers helped her up, and she was able to finish the

relay with some assistance. Kellner sought treatment in the ship’s medical center,

where she obtained an x-ray indicating that she had ruptured her Achilles tendon.

When she returned home, she underwent orthopedic surgery.

      In August 2015, Kellner sued NCL in the United States District Court for the

Southern District of Florida, claiming that NCL’s negligent failure to clean the

balloon pieces off the floor caused her Achilles tendon to rupture. She sought

compensatory damages for her bodily injury, pain and suffering, disability,

disfigurement, mental anguish, loss of capacity for the enjoyment of life, medical

and nursing care expenses, loss of important bodily functions, and substantial and

permanent scarring or disfigurement. In January 2016, Kellner disclosed as an

expert witness Dr. Mauricio Herrera, a physician who had examined her injuries

after her surgery, and who would offer the opinion that Kellner’s fall during the

balloon relay caused her Achilles tendon to rupture.

      NCL moved to exclude Dr. Herrera’s testimony, claiming that his causation

opinion   was   inadequately    supported    under     Daubert   v.   Merrell   Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). NCL argued that Dr. Herrera had not

identified a reliable methodology for establishing causation, noting that he based

his opinion on Kellner’s own account of the accident. NCL further claimed that Dr.

Herrera neglected to consider alternative causes for Kellner’s injury, or to


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articulate any methodology for excluding alternative causes. It added that Dr.

Herrera did not review Kellner’s medical records that predated the accident, which

indicated that she suffered from a variety of medical conditions due to previous

injuries. Finally, NCL argued that Dr. Herrera’s testimony would confuse the jury

since it was not grounded in medical science. The district court denied NCL’s

motion in part. It concluded that Dr. Herrera’s testimony would be helpful to the

jury. But it permitted NCL to conduct a voir dire of Dr. Herrera, during trial and

outside the jury’s presence, in order to determine the reliability of his causation

opinion and the methodology behind it.

      During the voir dire, Dr. Herrera reiterated his opinion that Kellner’s cruise-

ship slip and fall caused her Achilles tendon to rupture. He reached that conclusion

by relying on his physical examination of Kellner following her surgery; Kellner’s

medical history; her postaccident medical records; records from the cruise ship

doctor; an MRI report created shortly after Kellner’s fall; a report from a

postaccident toe surgery she underwent; a security video of the accident recorded

on the cruise ship; and the defense expert’s report. He admitted, however, that he

had never personally examined the images generated by Kellner’s MRI, nor was he

aware that Kellner had a history of falling incidents.

      At the close of the voir dire, the district court held that Dr. Herrera’s

testimony was inadmissible under Daubert because he failed to ground his medical


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opinions about causation on a reliable foundation or methodology. The court

determined that Dr. Herrera’s testimony was “based simply upon looking at a

video and listening to [Kellner’s] account of what happened,” and viewing an MRI

report without examining the MRI images. The court also concluded that Dr.

Herrera could not testify about damages.

        The parties turned to Kellner’s evidence of damages. NCL objected to the

admission of Kellner’s medical bills and records because they were

unauthenticated, unclear, and unsubstantiated. The district court agreed, ruling that

Kellner was unqualified to introduce her medical bills in evidence because she

needed expert testimony to establish that her expenses were reasonable and

necessary. Kellner gave a proffer on damages. She explained that, if permitted, she

would testify that she was examined and x-rayed by the cruise ship’s medical staff,

who diagnosed her with a ruptured Achilles tendon. On their recommendation,

Kellner had orthopedic surgery when she returned home, which rendered her

wheelchair-bound for several months during which time she experienced severe

pain.

        The district court explained that, even if Kellner testified about the treatment

she received and the suffering she endured, she remained vulnerable to a motion

for directed verdict because she had offered no evidence of either causation or

damages. Her causation evidence was deficient because, without Dr. Herrera’s


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testimony, she lacked an expert opinion to tie the fall to the ruptured Achilles

tendon. And her damages evidence was wanting because, although she experienced

severe pain and suffering, she could not prove quantifiable damages since she was

unqualified to introduce her medical expenses. After Kellner rested at trial, NCL

moved for a directed verdict. The district court granted the motion, holding that

Kellner presented insufficient evidence of causation and damages, thereby entitling

NCL to judgment as a matter of law.

      Kellner filed this timely appeal in our Court.

                                         II.

      We review de novo a district court’s grant of judgment as a matter of law.

Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Fla., Inc., 140 F.3d 898, 905

(11th Cir. 1998). “[A] court should render judgment as a matter of law when a

party has been fully heard on an issue and there is no legally sufficient evidentiary

basis for a reasonable jury to find for that party on that issue.” Commodores

Entm’t Corp. v. McClary, 879 F.3d 1114, 1130 (11th Cir. 2018) (internal quotation

omitted). When a district court’s judgment is based on multiple independent

grounds, “an appellant must convince us that every stated ground for the judgment

against him is incorrect.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680

(11th Cir. 2014). Otherwise, the judgment must be affirmed. Id.




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      In order to prevail on her negligence claim under Florida law, Kellner was

required to establish four elements by a preponderance of the evidence: (1) a duty,

recognized by law, requiring NCL to conform to a certain standard of conduct to

protect others against unreasonable risks; (2) a breach of that duty; (3) a reasonably

close causal connection between the breach and the resulting injury; and (4) actual

loss or damage. Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1227 (Fla. 2010).

The district court granted NCL’s motion for a directed verdict on two independent

grounds: the failure to present sufficient evidence on causation or on damages.

Since a plaintiff asserting a negligence claim under Florida law must prove both

causation and damages, a failure to present sufficient evidence of either element

warrants entry of a directed verdict for the defendant. See, e.g., R.J. Reynolds

Tobacco Co. v. Brown, 70 So. 3d 707, 715 (Fla. App. 2011). Therefore, on appeal,

Kellner was required to challenge both foundations for the judgment.

      However, in her initial brief, she challenged only the district court’s ruling

on causation, claiming that the district court had erroneously excluded Dr.

Herrera’s expert testimony under Daubert. She did not address the sufficiency of

her damages evidence. Consequently, Kellner abandoned that challenge and we are

required to affirm. We have no occasion to address Kellner’s appeal from the

district court’s Daubert ruling on Dr. Herrera’s causation opinion, since any

consideration of that issue would be futile. Even if Kellner had prevailed on that


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score, she still could not succeed in overturning the directed verdict because of her

failure to challenge the district court’s ruling on damages.

      If an appellant fails to properly challenge an independent basis for the

district court’s judgment, “he is deemed to have abandoned any challenge of that

ground, and it follows that the judgment is due to be affirmed.” Sapuppo, 739 F.3d

at 680. We have repeatedly held that, in order to preserve an argument on appeal,

the appellant must clearly advance the argument in her initial brief. Access Now,

Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“Any issue that an

appellant wants [us] to address should be specifically and clearly identified in the

brief . . . . Otherwise, the issue -- even if properly preserved at trial -- will be

considered abandoned.”); Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir.

1995) (“Issues not clearly raised in the briefs are considered abandoned.”);

Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995) (“We note that issues that

clearly are not designated in the initial brief ordinarily are considered

abandoned.”); Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318

(11th Cir. 2012) (stating that it is well settled in this circuit that a party abandons

an issue “by failing to list or otherwise state it as an issue on appeal”); United

States v. Willis, 649 F.3d 1248, 1254 (11th Cir. 2011) (“A party seeking to raise a

claim or issue on appeal must plainly and prominently so indicate. . . . Where a




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party fails to abide by this simple requirement, he has waived his right to have the

court consider that argument.”) (quotations and citations omitted).

      An appellant may properly raise an argument in her initial brief by, for

example, devoting a discrete section to it and supporting it with discussion,

argumentation, and citations to authorities and record excerpts. Fed. R. App. P.

28(a)(8) (“[T]he argument [section of the appellant’s brief] must contain[ ] . . .

appellant’s contentions and the reasons for them, with citations to the authorities

and parts of the record on which the appellant relies.”) (emphasis added); Sapuppo,

739 F.3d at 681; Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009).

Merely passively referencing or perfunctorily raising the argument will not suffice.

Sapuppo, 739 F.3d at 681 (“We have long held that an appellant abandons a claim

when he either makes only passing references to it or raises it in a perfunctory

manner without supporting arguments and authority.”); Singh, 561 F.3d at 1278

(“[S]imply stating that an issue exists, without further argument or discussion,

constitutes abandonment of that issue and precludes our considering the issue on

appeal”); Cont’l Technical Servs., Inc. v. Rockwell Int’l Corp., 927 F.2d 1198,

1199 (11th Cir. 1991) (“[An] issue raised perfunctorily without citation to

authority constitutes waiver of [the] issue.”).

      Far from a technicality, the requirement that an appellant clearly present all

issues in her initial brief serves vital interests. It promotes “careful and correct


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decision making,” Hamilton, 680 F.3d at 1319, and “avoid[s] confusion as to the

issues that are in play and those that are not,” Access Now, 385 F.3d at 1330

(quoting United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003)). It

provides the opposing party with the opportunity to analyze and respond to her

adversary’s contentions. Hamilton, 680 F.3d at 1319. It enables the appellate court

to prepare for oral argument. Id. And it ensures the proper operation of our

adversarial system by securing the litigants’ prerogative to frame the questions

under consideration on appeal. See Access Now, 385 F.3d at 1330 (“Indeed,

evaluating an issue on the merits that has not been raised in the initial brief would

undermine the very adversarial nature of our appellate system.”).

      In ruling on NCL’s motion for a directed verdict, the district court explained,

“The Court declines to grant a directed verdict on [liability]; however, it agrees

Plaintiff has failed to satisfy her burden regarding [causation] and [damages].” The

court clearly based its judgment on two independent grounds. Yet Kellner devoted

the entirety of her initial brief to challenging the district court’s causation ruling;

she failed to challenge the district court’s holding on damages in any way. Indeed,

Kellner’s only reference to the district court’s damages ruling in the Argument

section of her initial brief was the following:

      The district court granted Defendant’s motion for directed verdict on the
      issue of causation and damages. Because the ruling that excluded Dr.
      Herrera should be reversed, so also should the ruling granting a directed
      verdict for the Defendant.
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      Kellner did not present a reasoned, well-supported argument in her initial

brief challenging the district court’s ruling on damages. She offered no analysis,

argumentation, or citations to authorities or record excerpts. She failed to devote a

“discrete section of [her] argument” to damages. Sapuppo, 739 F.3d at 681. Indeed,

throughout the entirety of the Argument section of her initial brief, she raised the

issue of damages only “in a perfunctory manner without supporting arguments and

authority.” Id. Her failure to present the argument in her initial brief deprived NCL

of an opportunity to adequately respond. Hamilton, 680 F.3d at 1319. And if we

were to address the argument, we would supplant the parties’ role in shaping the

issues before us on appeal. See Access Now, 385 F.3d at 1330.

      To be sure, Kellner briefly discussed the court’s damages holding in the

Facts section of her brief:

      The ruling [on NCL’s motion for directed verdict] essentially excised the
      causation element from Plaintiff’s negligence lawsuit. Thus, while the
      district court permitted Plaintiff to testify about her surgery and treatment,
      she was prohibited from introducing evidence of damages related to the
      Achilles injury because there was no longer any available causation
      evidence to tie the causation and damages elements. In the absence of the
      Daubert ruling, which would have permitted Dr. Herrera’s causation
      testimony, Plaintiff would have introduced testimony from Ms. Kellner and
      Dr. Herrera as to damages, including pain and suffering, and would have
      sought to introduce medical records related to the same.

Yet, in that discussion, she addressed only the type of damages evidence she

sought to introduce at trial. She did not mention, let alone explicate in any detail,


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why the district court may have erred in holding that Kellner’s damages evidence

was insufficient as a matter of law. She never said, for example, that the district

court erred on damages because, even in the absence of Dr. Herrera’s testimony,

she offered testimony about the pain and suffering she had sustained, or indeed

about any other kind of noneconomic injury. Her fleeting discussion of damages in

the Facts section of her brief did not suffice to preserve the argument.

      Moreover, while Kellner developed an argument on damages in her reply

brief, it is by now clear that we cannot consider arguments raised for the first time

in a reply brief. United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004)

(“[T]his Court . . . repeatedly has refused to consider issues raised for the first time

in an appellant’s reply brief.”); KMS Rest. Corp. v. Wendy’s Int’l, Inc., 361 F.3d

1321, 1328 n.4 (11th Cir. 2004) (“[A] party cannot argue an issue in its reply brief

that was not preserved in its initial brief.”); United States v. Whitesell, 314 F.3d

1251, 1256 (11th Cir. 2002) (“We need not address this issue because Whitesell

raises it for the first time in his reply brief.”); United States v. Oakley, 744 F.2d

1553, 1556 (11th Cir. 1984) (“Arguments raised for the first time in a reply brief

are not properly before the reviewing court.”); United States v. Dicter, 198 F.3d

1284, 1289 (11th Cir. 1999) (concluding that the appellant “waived” a claim

because he raised it for the first time in his reply brief); United States v. Martinez,

83 F.3d 371, 377 n.6 (11th Cir. 1996) (declining to consider arguments raised for


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the first time in a reply brief). This rule, too, serves to clarify the scope of the

issues under appellate review, and to afford the appellee an opportunity to address

them. Because Kellner failed to preserve the argument in her initial brief, we

cannot review it even though it appears in her reply brief.

      We have recognized five exceptions to the rule that an appellant abandons

all arguments not properly presented in her initial brief. We may consider the

abandoned argument if (1) it involves a pure question of law, and if refusal to

consider it would result in a miscarriage of justice; (2) the appellant raises an

objection to an order that she had no opportunity to raise in the district court; (3)

substantial justice is at stake; (4) the resolution of the abandoned claim is beyond

any doubt; or (5) the argument presents significant questions of general impact or

of great public concern. See Access Now, 385 F.3d at 1332. None of those

exceptions apply. Kellner makes no mention of them in her reply brief and, even if

she did, we cannot see how any of them could aid her here.



      The long and short of it is that Kellner abandoned any challenge to the

district court’s damages ruling, which formed an independent basis for the court’s

judgment. We are, therefore, obliged to affirm the judgment of the district court.

      AFFIRMED.




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WILSON, Circuit Judge, concurring:

      I agree with the majority’s finding that Kellner’s brief on appeal ruined any

chance of success she had in this court. However, I write separately to draw

attention to an often-overlooked avenue for demonstrating causation that may have

been available to Kellner below. She also neglected to raise this argument in her

appellate briefing, so she has waived it as well.

      Some of our recent cases from our non-argument calendar have noted that,

in cruise-ship personal injury cases, “[w]hen the causal link between alleged

injuries and the incident at issue is not readily apparent to a lay person, expert

medical testimony as to medical causation is typically required.” See, e.g., Rivera

v. Royal Caribbean Cruises Ltd., 711 F. App’x 952, 954–55 (11th Cir. 2017) (per

curiam). In support, this line of cases cites the district court order on appeal here,

among other authorities. See id. (citing Kellner v. NCL (Bahamas), Ltd., No. 15-

23002-CIV-ALTONAGA, 2016 WL 4440510 (S.D. Fla. Aug. 22, 2016)). This rule

is based on Florida state law. See Vero Beach Care Ctr. v. Ricks, 476 So.2d 262,

264 (Fla. 1st DCA 1985) (“[L]ay testimony is legally insufficient to support a

finding of causation where the medical condition involved is not readily

observable.”).

      The Florida courts have analyzed a range of ailments under this rule,

observing that “a construction worker who had been struck on the head by a truss”


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or an employee whose “arm [was] severed by a machine” would not need an expert

to show causation, while those with a “psychiatric condition,” a “soft tissue

injury,” or “hypertension” would require an expert. See Closet Maid v. Sykes, 763

So.2d 377, 382–83 (Fla. 1st DCA 2000) (collecting cases). The district court here

found that Kellner’s injuries were “not readily observable such that they would be

susceptible to evaluation by lay persons,” and cited Crest Products for support.

Kellner, 2016 WL 4440510, at *2 (citing Crest Prods. v. Louise, 593 So.2d 1075,

1077 (Fla. 1st DCA 1992)). But the Crest Products plaintiff suffered lower back

and leg pain, see 593 So.2d at 1077, invisible to the human eye, while Kellner

suffered a foot injury that was apparent in the record photographs.

          Accordingly, I would have been open to an argument that Kellner’s injuries

may have been observable to a lay person, and thus Dr. Herrera’s exclusion may

not have doomed her case.1 Kellner could have also perhaps argued that her own

testimony would have been sufficient to establish damages. Cf., e.g., Button v.

Royal Caribbean Cruises, Ltd., No. 12-cv-23624-UU, 2013 WL 12064491, at *2

(S.D. Fla. July 23, 2013) (“[I]t is well-established under Florida law that in tort

actions alleging a physical injury . . . lay testimony from a personal injury claimant

is sufficient to show mental anguish, loss of enjoyment for life, or other non-

economic damages.”). However, since Kellner did not raise these arguments on


1
    The record also contained video of the incident that allegedly caused Kellner’s injury.
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appeal—and it is unclear to what extent she made these arguments in the district

court—I agree with the majority’s affirmance.




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