Carolyn Bates v. United States General Services, et al

Filing

Opinion issued by court as to Appellant Carolyn Bates. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15185
Non-Argument Calendar
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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.
A.

FACTUAL BACKGROUND

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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