           Case: 15-15185   Date Filed: 05/26/2017   Page: 1 of 13


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15185
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:13-cv-00051-KD-C

CAROLYN BATES,

                                                            Plaintiff-Appellant,

                                  versus

UNITED STATES GENERAL SERVICES ADMINISTRATION,
UNITED STATES FEDERAL GOVERNMENT/COURTHOUSE,
UNITED STATES OF AMERICA,

                                                        Defendants-Appellees.

                       ________________________

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

                              (May 26, 2017)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      A wobbly bench in Selma, Alabama’s federal courthouse injured Carolyn

Bates. She sued the United States for negligence and, after a bench trial, was

awarded damages based on her medical bills incurred on the day of the injury, as

well as costs. On appeal, Bates contends that the district court erred in determining

that the accident did not proximately cause her ongoing pain and injuries, basing

its award of damages on evidence not introduced at trial, making various

evidentiary determinations, and declining to tax costs to the extent requested.

After careful review, we affirm.

                          I.    FACTUAL BACKGROUND

A.    Bates’s Accident and Medical Treatment

      Bates, a volunteer non-attorney representative for a Social Security disability

claimant, visited the federal courthouse in Selma to attend a hearing for her client,

a minor. She took the elevator to the second floor and sat on a wooden bench in

the hallway. The bench, which was not fastened to the floor, moved forward, and

Bates lost her balance. The falling bench struck Bates on her neck, right shoulder,

back, and right hip. Bates reported the incident to Betty Davis, a court security

officer, who prepared an Offense/Incident Report. General Services

Administration (“GSA”) Supervisory Building Manager Kevin Lear received the

report soon thereafter.




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      After initially believing her injury was not serious, Bates went to the

emergency room (“ER”) at Vaughan Regional Medical Center for lingering pain.

ER notes indicate that she was treated for an accident, her chief complaint being

traumatic pain in her neck, right hip, back, and legs. Bates experienced muscle

spasms during a physical examination; she was given a hip injection and

prescribed pain medication. Bates wrote Lear a letter seeking payment for her ER

bills, which she said totaled $1,543.33. She also notified GSA that she would seek

further medical treatment.

      Bates sought additional treatment from Dr. John Park, who determined that

she did not suffer a compression fracture or significant disc bulge, but that she did

suffer multilevel disc desiccation and discogenic and facet degenerative changes.

Dr. Park expressed no opinion as to these conditions’ origins. Bates continued to

seek treatment from several doctors, including Dr. Laura Kezar, who diagnosed

Bates with degenerative changes, osteopenia, and minimal mid thoracic

spondylosis, but not malalignment of the lumbar spine, and concluded that the

bench accident “may have been the cause of [Bates’s] pain or this may simply

represent normal aging wear and tear changes of the spine with exacerbation

related to an acute contusion or sprain.” Doc. 204-3 at 95.1 No other doctor




      1
          All references to “Doc. __” refer to the numbered district court docket entries.

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identified the bench accident as the cause or a potential cause of Bates’s continuing

pain and injuries.

B.     Bates’s Lawsuit and Trial

       Bates brought a claim against the United States for negligence under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. 2 She sought

compensatory damages for medical expenses, lost household services, loss of

enjoyment and quality of life, as well as costs, and such other and further relief as

the court would deem proper.

       At the non-jury trial, Bates testified that she experienced “excruciating pain”

as a result of the bench accident, Doc. 191 at 34, and that she continued to suffer

pain in her hands and shoulders, spinal and nerve damage, partial loss of

functionality in her hands, and total loss of functionality in her right arm. She also

testified that she takes daily pain medication, receives multiple injections for hip

bursitis per year, is enrolled in physical therapy, and can no longer drive or clean

her house. Bernette Shields, the mother of Bates’s minor client, testified that she

witnessed the bench topple onto Bates, though she could recall few other details


       2
          Bates’s initial complaint brought negligence and negligent infliction of emotional
distress claims against the United States, GSA, and three unnamed defendants. The United
States filed a motion to dismiss all of Bates’s claims against GSA on the ground that the United
States was the only proper defendant under the FTCA. See 28 U.S.C. § 2679(b)(1). The district
court granted the motion. Bates’s first amended complaint added a claim of gross negligence.
She later sought leave to file a second amended complaint, which the district court granted in an
order that limited the complaint’s scope to a single count of negligence against the United States.

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about that day. Marvin Shields, the client’s father, also testified that he saw the

bench flip onto Bates, but he too remembered few details about the incident. Bates

introduced medical documents that included Dr. Park’s analysis of her condition,

which the court admitted into evidence. The government introduced Dr. Kezar’s

assessment of Bates’s injuries, which the court admitted into evidence.

      The district court determined that the government had breached its duty of

care to Bates. It credited Bates’s testimony that the bench had hit her, but found

Bernette’s and Marvin Shields’s testimony to be unreliable due to their inability to

“recall anything else from that date, even though it was their child’s disability

hearing.” Doc. 184 at 2 n.2. The court found that the bench accident caused the

injuries for which Bates received treatment at the ER that same day, but that the

accident did not proximately cause Bates’s ongoing injuries and pain. The district

court found Bates’s testimony regarding her later injuries and pain not to be

credible, observing that she sought no additional treatment for months after visiting

the ER, she seemed to exaggerate her symptoms and ability to function at trial, and

her descriptions of her pain were not adequately supported by medical evidence or

expert testimony.

      The court awarded Bates $1,543.33 in damages for the medical bills she

incurred visiting the ER, basing the amount on the letter she had written to Lear. It

also awarded her taxable costs totaling $736.30 for deposition transcripts, a CD

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recording of a hearing before the magistrate judge, a pretrial conference transcript,

and witness fees. This amount reflected all of the costs Bates had requested, with

the exception of the cost of deposing her home care assistant, Irene McNeil, which

the district court declined to award because it could not discern how the deposition

was necessary to the case.

      This is Bates’s appeal.

                         II.    STANDARD OF REVIEW

      After a bench trial, “[w]e review the district judge’s findings of fact for clear

error and conclusions of law de novo,” Whitley v. United States, 170 F.3d 1061,

1068 n.14 (11th Cir. 1999), including when reviewing its calculation of damages,

see Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine

Ass’n, 117 F.3d 1328, 1339 (11th Cir. 1997). We accord great deference to the

trial court’s credibility determinations, as “the fact finder personally observes the

testimony and is thus in a better position than a reviewing court to assess the

credibility of witnesses.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th

Cir. 2002). This means “we must accept the evidence unless it is contrary to the

laws of nature, or is so inconsistent or improbable on its face that no reasonable

factfinder could accept it.” Id. (alteration and internal quotation marks omitted).

      “We review a district court’s evidentiary rulings for abuse of discretion. . . .

[W]e will leave undisturbed a district court’s [evidentiary] ruling unless we find

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that the district court has made a clear error of judgment, or has applied the wrong

legal standard.” Burchfield v. CSX Transp., Inc., 636 F.3d 1330, 1333 (11th Cir.

2011) (internal quotation marks omitted). “Moreover, we will not overturn an

evidentiary ruling unless the moving party establishes a substantial prejudicial

effect.” Id. (internal quotation marks omitted).

      Similarly, “we review a district court’s decision about whether to award

costs to the prevailing party for abuse of discretion.” Mathews v. Crosby, 480 F.3d

1265, 1276 (11th Cir. 2007). “An abuse of discretion occurs if the trial judge bases

an award or denial upon findings of fact that are clearly erroneous.” Id.

                                III.   ANALYSIS

      On appeal, Bates contends that the district court erred in determining that the

bench accident did not proximately cause her ongoing injuries and pain,

calculating the damages award based on evidence not introduced at trial, making

various evidentiary determinations, and declining to tax the cost of McNeil’s

deposition. We conclude that Bates has identified no error on the district court’s

part. Accordingly, we affirm.

A.    Proximate Causation

      Bates argues that the district court issued an erroneous judgment and award

of damages because the evidence admitted at trial substantiates her theory of

proximate causation under the “Sudden Onset Doctrine.” Bates raised her “Sudden

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Onset” theory of proximate causation for the first time on appeal. She claims that

the district court held the United States liable under the Sudden Onset Doctrine.

There is no mention of a “Sudden Onset Doctrine” in the court’s order, however.

Bates never mentioned this theory in her complaints or at trial, nor did it arise

during discovery. 3 This Court “generally will not consider an issue or theory that

was not raised in the district court.” Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir.

1994) (internal citations omitted). 4 We thus decline to consider Bates’s “Sudden

Onset” argument. Because she raises no other arguments that the district court’s

proximate cause determination was erroneous, we affirm as to that issue.

B.     Calculation of Damages

       Bates argues that the district court erred by awarding damages based on

evidence not introduced at trial. The district court awarded Bates $1,543.33 in

damages, which represented the amount of her ER medical bills according to a

letter she had written to Lear in November 2009. Bates is correct that the letter

was never actually admitted into evidence at trial. However, she identifies no

evidence showing that the amount of her ER bills was incorrect. Accordingly—

and particularly given that this was a bench trial in which the district judge was the

       3
          In fact, the phrase “sudden onset” appears nowhere in the record except for two pages
of hospital records, neither of which supports Bates’s theory of proximate causation or formed
the basis for the district court’s determination.
       4
        Although we have recognized exceptions to this rule, see Dean Witter Reynolds, Inc. v.
Fernandez, 741 F.2d 355, 360-61 (11th Cir. 1984), Bates has not shown that any of the
exceptions applies here.

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fact finder—she cannot show that the court’s erroneous reliance on the letter to

Lear prejudiced her case. As such, we affirm the district court’s damages award.

C.    Admission of Evidence

      Bates argues that the district court abused its discretion with respect to

various evidentiary matters: excluding evidence that should have been admitted,

relying on evidence that had not been admitted, and failing to credit credible

testimony. We conclude that the district court did not abuse its discretion as to any

of the challenged evidentiary matters.

      First, Bates argues that the district court improperly excluded evidence,

including a medical report by Dr. Kezar, that Bates asserts would have supported

her case. Dr. Kezar’s report is the only piece of excluded evidence that Bates

actually identifies on appeal. “A party referring to evidence whose admissibility is

in controversy must cite the pages of the appendix or of the transcript at which the

evidence was identified, offered, and received or rejected.” Fed. R. App. P. 28(e).

“The burden of proof is on the appellant” to show that the district court improperly

excluded evidence that it should have admitted, “and this court is not required to

search the [record] for error.” United States v. Francis, 131 F.3d 1452, 1458 (11th

Cir. 1997). Bates’s argument that the district court improperly excluded evidence

does not comport with Rule 28(e). She cites no specific pages in the appendix or

transcript where the district court rejected any evidence that she offered. And,

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although she identifies Dr. Kezar’s report, she makes only the conclusory

allegation that it was wrongly excluded. Without more, we cannot ascertain what

evidence, if any, erroneously was excluded, nor can we say that the district court

abused its discretion.

      Second, Bates argues that the district court erred in relying on Dr. Park’s

medical records to determine that the bench accident did not proximately cause her

ongoing injuries and pain because those records were not introduced into evidence

at trial. She is incorrect. The district court’s order cited to Bates’s own trial

exhibit containing the medical records, which the court had admitted into evidence,

as the source of Dr. Park’s analysis. To the extent Bates asserts that the district

court erred in admitting Dr. Park’s records, she fails to explain why their admission

was erroneous or how any error was not invited since she affirmatively moved for

the admission of the records herself. See United States v. Ross, 131 F.3d 970, 988

(11th Cir. 1997) (“It is a cardinal rule of appellate review that a party may not

challenge as error a ruling or other trial proceeding invited by that party.” (internal

quotation marks omitted)). As such, the district court did not abuse its discretion

in relying on Dr. Park’s records.

      Third, Bates argues that the district court abused its discretion in declining to

credit Bernette’s and Marvin Shields’s testimony that the bench injured her. The

district court based its credibility determination on the Shields’s inability to recall

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details from the date of the accident, even though they were at the courthouse for

their child’s disability hearing. Bates has not shown that this finding was “contrary

to the laws of nature” or “so inconsistent or improbable on its face that no

reasonable factfinder could accept it.” Ramirez-Chilel, 289 F.3d at 749 (11th Cir.

2002). Nor has Bates shown prejudice, as the court credited her own testimony

that the bench injured her. We thus cannot conclude the district court abused its

discretion in finding Bernette’s and Marvin Shields’s testimony to be incredible.

       We affirm the district court as to each of its challenged evidentiary

determinations.

D.     Taxation of Costs

       Next, Bates argues that the district court abused its discretion in failing to

tax the United States with the cost of McNeil’s deposition. 5 The district court

lacked authority to tax the cost of McNeil’s deposition, however, because Bates

failed to meet her burden of showing that the deposition was necessarily obtained

for use in the case. Accordingly, the district court did not err in declining to tax the

deposition’s cost.

       “Unless a federal statute, these rules, or a court order provides otherwise,

costs—other than attorney’s fees—should be allowed to the prevailing party. But

       5
         Bates argues that the district court erred in taxing costs without specifically discussing
McNeil’s deposition. Nevertheless, we construe this as an argument that the district court should
have taxed the cost of McNeil’s deposition because it is the only item for which costs were
requested and denied.

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costs against the United States, its officers, and its agencies may be imposed only

to the extent allowed by law.” Fed. R. Civ. P. 54(d)(1). Title 28 U.S.C. § 1920

permits a federal court to tax as costs “[f]ees for printed or electronically recorded

transcripts necessarily obtained for use in the case,” 28 U.S.C. § 1920(2),6

including deposition transcripts. See EEOC v. W&O, Inc., 213 F.3d 600, 620 (11th

Cir. 2000) (“Taxation of deposition costs is authorized by § 1920(2).”). “Where

the deposition costs were merely incurred for convenience, to aid in thorough

preparation, or for purposes of investigation only, the costs are not recoverable.”

Id. at 620 (alterations and internal quotation marks omitted). “[W]hether the costs

for a deposition are taxable depends on the factual question of whether the

deposition was wholly or partially necessarily obtained for use in the case.” Id. at

621 (internal quotation marks omitted).

       Bates does not explain how McNeil’s deposition was necessarily obtained

for use in the case. Her failure to admit the deposition into evidence or use it in

any way at trial, including for cross-examination, supports the district court’s

decision not to tax the cost of the deposition transcript. “[A]dmission into

evidence or use during cross-examination tends to show that [a deposition] was

necessarily obtained,” though it is not dispositive. Id. Absent any showing that the

district court clearly erred in finding that the McNeil deposition was not
       6
         Section 1920 authorizes a federal court to tax other categories of costs as well, but none
is relevant to this case.

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necessarily obtained for use in the case, we cannot say it abused its discretion in

declining to tax the deposition’s cost.

                                 IV.   CONCLUSION

      For the foregoing reasons, we affirm the judgment of the district court, as

well as its taxation of costs.

      AFFIRMED.




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