Costa v. Sam's East, Inc.

Filing 110

ORDER denying 109 Motion for Judgment as a Matter of Law or in the Alternative, Motion for New Trial or in the Alternative, Motion for Remittitur. Signed by Chief Judge William H. Steele on 10/31/2012. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EVA COSTA, as Personal Representative
for the Estate of EUGENE M. COSTA,
deceased,
Plaintiff,
v.
SAM’S EAST, INC.,
Defendant.

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CIVIL ACTION 11-0297-WS-N

ORDER
This matter comes before the Court on defendant’s Motion for Judgment as a Matter of
Law or in the Alternative, Motion for New Trial or in the Alternative, Motion for Remittitur
(doc. 109). The Motion is ripe for disposition.
I.

Relevant Background.
Plaintiff Eugene M. Costa brought a single negligence claim against defendant Sam’s

East, Inc., after sustaining injuries in a Sam’s Club retail store when a Sam’s employee
inadvertently caused a large boxed flat-screen television to topple from a shelf and strike Costa’s
left leg. Costa suffered a hematoma on his leg and, according to his treating physician, a longterm deterioration in his overall health as a result of this injury. Two years later, during the
pendency of this litigation, Costa died. Thereafter, Costa’s widow, Eva Costa, was substituted as
the named plaintiff, in her capacity as personal representative of Costa’s estate, pursuant to Rule
25(a), Fed.R.Civ.P. Ms. Costa did not alter the claims or legal theory against Sam’s; rather, she
continued to pursue a state-law claim of negligence against Sam’s for her late husband’s personal
injuries. The case was tried before a jury on September 18 and 19, 2012.
In the weeks preceding trial, the undersigned entered three Orders (docs. 85, 86, 87)
resolving the parties’ key evidentiary and conceptual disagreements concerning the manner in
which trial would be conducted. The first Order (doc. 85), entered on August 6, 2012,
adjudicated (among other things) whether plaintiff could present evidence at trial that Costa’s

death was caused by, the result of, or was contributed to by the Sam’s accident. The August 6
Order concluded that “Plaintiff may not present evidence or argument at trial that Costa’s leg
injury caused or was a contributing factor in his death.” (Doc. 85, at 5.) In an important
limitation to this ruling, however, the August 6 Order also provided as follows: “[P]laintiff may
put on evidence of Costa’s deteriorating physical condition, pain and suffering, and so on
(provided that she shows a causal connection between those circumstances and his injury at
Sam’s) from the moment of the accident until the moment of his death.” (Id. at 4.)
The second Order (doc. 86), entered on August 8, 2012, resolved Sam’s numerous
objections to the designated deposition testimony of Costa’s treating physician, Dr. Michael
O’Dowd. In relevant part, the August 8 Order implemented the principles set forth in the August
6 Order, to-wit: (i) that plaintiff would not be allowed to introduce opinions from Dr. O’Dowd
that the Sam’s accident caused or contributed to Costa’s death, but (ii) that plaintiff would be
allowed to introduce opinions from Dr. O’Dowd concerning Costa’s deteriorating health
condition from the date of the accident until the date of Costa’s death, provided that a causal
connection between the accident and Costa’s health condition were shown. In practical terms,
what this meant was that the August 8 Order authorized plaintiff to introduce testimony from Dr.
O’Dowd that the Sam’s accident made Costa sicker and caused his health to decline, but forbade
plaintiff from presenting any opinions from Dr. O’Dowd that the Sam’s accident caused or
contributed to his death.1
The third Order (doc. 87), entered on August 9, 2012, examined in great detail the
parties’ competing arguments concerning whether the case should be tried as an ordinary
negligence case (as plaintiff had consistently requested since the inception of the litigation) or
whether it was properly tried as a premises liability case (as defendant favored). After briefing
and careful review of pertinent authorities, the undersigned concluded that “Alabama courts
decide whether the appropriate framework for analyzing duty is traditional negligence or
1

Two excerpts from the August 8 Order illustrate the point. In one passage, the
Court overruled certain objections posited by Sam’s, reasoning that “[t]he witness offered no
opinions that the Sam’s accident caused or was a contributing factor in Costa’s death in this
excerpt. Instead, he testified as to Costa’s health condition following the accident but before his
death, and opined that he died of heart failure.” (Doc. 86, at 2.) In another passage, the Court
overruled other objections interposed by Sam’s, explaining that “[t]his testimony does not relate
to causes of death, but instead the quality of Costa’s life and health following the accident.” (Id.)

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premises liability by reference to whether the injury was caused by the landowner’s affirmative
conduct or by a condition of the premises.” (Doc. 87, at 4.) The August 9 Order explained that
Costa’s position had always been clear that plaintiff sought recovery not on the theory that Sam’s
premises were dangerous (i.e., because televisions were stacked in an unsafe manner), but on the
theory that Sam’s was liable in respondeat superior because its employee negligently knocked a
television over, causing it to fall on Costa. Because plaintiff’s theory “cannot reasonably be
framed as one for injury caused by a condition of the premises,” the August 9 Order reasoned,
“under the clear Alabama precedent set forth above, general negligence principles govern this
lawsuit.” (Id. at 5-6.) Thus, the August 9 Order concluded, “[t]his action will not be tried as a
premises liability case, but will rather be presented to the jury in the traditional negligence
framework that plaintiff has touted from the outset of the proceedings.” (Id. at 6.)
All of these rulings were handed down well over a month before trial, thereby affording
the parties abundant opportunity to refine their trial presentations in recognition of same or (if
appropriate) to request reconsideration or clarification of particular aspects of the Orders.
Defendant took no action on any of these August pretrial rulings, and certainly did not suggest at
any time before trial that they were internally contradictory or manifestly erroneous under Rule
60, Fed.R.Civ.P. Accordingly, the August 6, 8 and 9 Orders governed the trial, and the parties’
evidentiary presentations, closing arguments, and jury instructions were subject to the
unambiguous parameters imposed by those rulings.
At the close of all the evidence at trial, after receiving detailed instructions on the law
from this Court and retiring to deliberate, the jury returned the following verdict: “We the jury
find for the Plaintiff and award damages in the amount of $200,000.00.” (Doc. 102, Exh. 1.)2
On the jury’s unanimous verdict, the Court entered Final Judgment (doc. 103) on September 21,
2012, in favor of plaintiff and against Sam’s in the amount of $200,000.

2

The amount of this verdict was substantially lower than plaintiff’s requested
damages award of $742,000 (calculated at $1,000 per day for pain, suffering, mental anguish and
loss of quality of life for each of the 742 days from the date of the Sam’s accident until the date
of Costa’s death), but substantially higher than the $24,000 figure (calculated at $1,000 per
month for each of the 24 remaining months of Costa’s life after the injury) floated by defense
counsel as a fair and reasonable amount in the event that the jury found liability.

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Now, within the time frame authorized by Rule 50(b), Fed.R.Civ.P., defendant files its
Motion for Judgment as a Matter of Law, with alternative Motions for New Trial and for
Remittitur embedded therein. Remarkably (given that the trial turned on narrowly circumscribed
evidentiary and legal issues, and lasted barely a day before the jury received the case), defendant
enumerates some 54 assignments of error that it contends entitle Sam’s to post-trial relief.3
Fortunately, defendant’s supporting memorandum groups these items into six discrete categories
for discussion purposes, to-wit: (i) Alabama premises liability law governs this case; (ii)
defendant was entitled to judgment as a matter of law even under a traditional negligence
analysis; (iii) defendant was prejudiced by the admission of evidence concerning Sam’s
corporate conduct; (iv) Dr. O’Dowd’s testimony about death and hospitalizations was unfairly
prejudicial to Sam’s and contrary to the Court’s orders; (v) Dr. O’Dowd’s billing testimony
should not have been admitted; and (vi) Sam’s is entitled to remittitur. The Court will take the
same approach in its analysis herein.4
II.

Governing Legal Standards.
Although defendant’s Motion is cast in several alternatives, the bulk of its briefing

focuses on its request for new trial under Rule 59, Fed.R.Civ.P. District courts are empowered to
grant a new trial in a civil case “for any reason for which a new trial has heretofore been granted
in an action at law in federal court.” Rule 59(a)(1)(A), Fed.R.Civ.P. That said, the remedy of a
new trial is “sparingly used.” Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 375 (1st
Cir. 2004); see also Dean v. Specialized Sec. Response, --- F. Supp.2d ----, 2012 WL 2450821,
*2 (W.D. Pa. June 27, 2012) (“Requests for a new trial are disfavored by the law.”). “Motions
3

Given the gratuitous (not to mention overlapping and repetitive) volume of
grounds for relief enumerated in the Motion, the Court cannot help but wonder whether
defendant was channeling its inner Paul Simon (circa his 1976 chart-topping single, “50 Ways to
Leave Your Lover”) in compiling this list.
4

The Court notes that a number of defendant’s 54 assignments of error enumerated
in its Motion do not fit within these six categories and are not addressed in defendant’s
memorandum. If defendant did not think enough about certain of the listed grounds for new trial
or judgment as a matter of law to develop them in its brief, then the undersigned does not think
enough of them to unilaterally formulate defendant’s possible arguments and legal analysis from
scratch. Certainly, it is not the Court’s responsibility to guess what defendant might mean by
certain items casually enumerated in a 54-item list, much less to fill in the evidentiary foundation
and legal mortar for same when movant failed to do so.

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for new trial must establish a clear and obvious error of law or fact.” Evans v. Washington
Metropolitan Area Transit Authority, 816 F. Supp.2d 27, 31 (D.D.C. 2011) (citation omitted).
“A trial court should not grant a new trial merely because the losing party could probably present
a better case on another trial.” Hannover Ins. Co. v. Dolly Trans Freight, Inc., 2007 WL 170788,
*2 (M.D. Fla. Jan. 18, 2007). As a general matter, “[t]he court may order a new trial if it is
required to prevent injustice or to correct a verdict that was contrary to the weight of the
evidence.” Dean, 2012 WL 2450821, at *2.
Here, Sam’s requests for new trial are based in large part on the undersigned’s
discretionary rulings at trial.5 “Because it is critical that a judge does not merely substitute his
judgment for that of the jury, new trials should not be granted on evidentiary grounds unless, at a
minimum, the verdict is against the great – not merely the greater – weight of the evidence.”
Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001)
(internal quotation omitted); see also St. Luke’s Cataract and Laser Institute, P.A. v. Sanderson,
573 F.3d 1186, 1200 n.16 (11th Cir. 2009) (similar). Indeed, the Eleventh Circuit has stated that,
as to evidentiary issues, “a new trial is warranted only where the error has caused substantial
prejudice to the affected party (or, stated somewhat differently, affected the party’s ‘substantial
rights’ or resulted in ‘substantial injustice’).” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d
1154, 1162 (11th Cir. 2004) (citations omitted). The guiding principle is that “[a] new trial will
not be granted based on trial error unless … the court concludes that manifest injustice will result
from letting the verdict stand.” Learmonth v. Sears, Roebuck and Co., 631 F.3d 724, 731 (5th
Cir. 2011) (citation omitted).6

5

In defendant’s own words, “much of the error Sam’s believes was committed
during the trial was the result of the Court’s adverse discretionary rulings.” (Doc. 109-1, at 2.)
6

See also Dean, 2012 WL 2450821, at *2 (“A trial court will not grant a new trial
on the basis of trial error unless the error resulted in prejudice.”); Wallace v. Poulos, 861 F.
Supp.2d 587, 599 (D. Md. 2012) (motion for new trial should be granted “only when it is
reasonably clear that prejudicial error has crept into the record or that substantial justice has not
been done”) (citation and internal quotation marks omitted); Jennings v. Thompson, 813 F.
Supp.2d 29, 32 (D.D.C. 2011) (“Generally, a new trial may only be granted when a manifest
error of law or fact is presented. Further, the standard for granting a new trial is not whether
minor evidentiary errors were made.”) (citation omitted).

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Insofar as Sam’s is renewing its motion for judgment as a matter of law under Rule 50,
the proper legal standard is as follows: “[A] court should render judgment as a matter of law
when there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on
that issue. … We review all of the evidence in the record and draw all reasonable inferences in
favor of the nonmoving party.” Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir. 2012) (citations
omitted). “[I]f there is substantial conflict in the evidence, such that reasonable and fair-minded
persons in the exercise of impartial judgment might reach different conclusions, the motion must
be denied.” Id. at 1311 (citing Christopher v. Florida, 449 F.3d 1360, 1364 (11th Cir. 2006)).
Simply put, “judgment as a matter of law is appropriate only if the facts and inferences point so
overwhelmingly in favor of one party that reasonable people could not arrive at a contrary
verdict.” Brown v. Alabama Dep’t of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010) (citation and
internal marks omitted).
Finally, to the extent that Sam’s is requesting remittitur, “a remittitur order reducing a
jury’s award to the outer limit of the proof is the appropriate remedy where the jury’s damage
award exceeds the amount established by the evidence.” Goldstein v. Manhattan Industries, Inc.,
758 F.2d 1435, 1448 (11th Cir. 1985); see also Tuli v. Brigham & Women’s Hosp., 656 F.3d 33,
44 (1st Cir. 2011) (“Remittitur is called for where an award is grossly excessive, inordinate,
shocking to the conscience of the court, or so high that it would be a denial of justice to permit it
to stand.”) (citations and internal quotation marks omitted). The touchstone of the remittitur
inquiry is “whether the jury’s award is within the range dictated by the evidence,” viewing such
evidence in the light most favorable to the non-movant. Rodriguez v. Farm Stores Grocery, Inc.,
518 F.3d 1259, 1266 (11th Cir. 2008).
III.

Analysis.
A.

Use of Traditional Negligence Principles, rather than Premises Liability.
1.

Defendant’s Attempt to Relitigate the August 9 Order.

As an initial matter, defendant insists that it is entitled to judgment as a matter of law or a
new trial because this Court’s “failure to apply the appropriate premises liability law in this case
constitute[s] reversible error.” (Doc. 109-1, at 5.) It is defendant’s position that this case should
have been governed by Alabama premises liability law, not by traditional negligence principles.
Of course, this Court has already examined this issue in great detail prior to trial. See Costa v.
Sam’s East, Inc., 2012 WL 3288680 (S.D. Ala. Aug. 9, 2012). Not only does Sam’s Motion

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largely ignore the August 9 Order, it devotes some six pages to repeating and rehashing
arguments that were specifically considered and rejected in that August 9 Order. What’s more,
defendant has not even attempted to rebut the specific reasoning of that Order, much less to
explain with particularity why it thinks the Court should reconsider the carefully considered and
explained conclusions in that Order. Why defendant pursued this quixotic Motion in this fashion
(rather than simply appealing the ruling, as is its right) is a mystery.
In the context of defendant’s Rule 50/Rule 59 Motion, no constructive purpose would be
served by the Court reiterating the reasoning and conclusions of the August 9 Order in detail.
Nor would a wholesale cutting and pasting of that Order here be helpful to anyone. Summary
disposition of this issue is warranted. See generally New Hampshire Ins. Co. v. Blue Water Off
Shore, LLC, 2009 WL 2230827, *1 (S.D. Ala. July 20, 2009) (summarily rejecting ground for
new trial on legal issue that had already been briefed and ruled on before trial, where movant
“offers no good reason for reconsidering that ruling”); ArcelorMittal France v. AK Steel Corp.,
811 F. Supp.2d 960, 972 (D. Del. 2011) (in motion for new trial context, “[b]ecause plaintiffs
present no new evidence or arguments as to why the court erred in its claim construction or its
order that barred plaintiffs from asserting literal infringement, the court will not address these
allegations”).
Nonetheless, the Court does pause to correct several misstatements of law articulated in
defendant’s Motion. First, Sam’s begins with the premise that “[i]n Alabama, an injured
visitor’s status remains the pertinent inquiry when determining whether premises liability
concepts apply to claims asserted against a landowner.” (Doc. 109-1, at 5.) This is wrong. For
more than two decades, courts applying Alabama law (including the very decisions on which
Sam’s relies) have consistently explained that, regardless of the injured visitor’s status,
traditional negligence principles govern when the injury was caused by the landowner’s
affirmative conduct, rather than by the condition of the premises. See Lilya v. Greater Gulf State
Fair, Inc., 855 So.2d 1049, 1053 (Ala. 2003) (where plaintiff was invitee, and parties disputed
whether invitor’s duty “should be extracted from general principles of negligence or of premises
liability,” reasoning that “[t]he key to this question is whether the injury was caused by some
affirmative conduct of the landowner or by a condition of the premises”); Baldwin v. Gartman,
604 So.2d 347, 349 (Ala. 1992) (where plaintiff was invitee injured by falling slab, opining that
if the landowner had “bumped the slab and caused it to fall, his conduct, distinct from his status

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as landowner, could then be said to have caused the injury and could be evaluated by an ordinary
negligence standard,” notwithstanding plaintiff’s status as invitee);7 Orr by and through Orr v.
Turney, 535 So.2d 150, 152 (Ala. 1988) (“This special classification privilege is not generally
regarded as applicable, however, when it is the affirmative conduct of the landowner, rather than
the condition of his premises, that causes the injury. In this context, the justifications for
determining liability based upon the classification of the injured party … do not attach.”); Powell
v. Piggly Wiggly Alabama Distributing Co., 60 So.3d 921, 925-26 (Ala.Civ.App. 2010) (where
parties argued over whether case was governed by premises liability or traditional negligence,
holding that premises owner’s “duty comes from traditional negligence principles” because “it
was the alleged negligent actions of Tubbs in operating the forklift that ultimately caused
Powell’s injury, rather than any dangerous condition existing within the warehouse”).
Second, defendant’s suggestion that this Court’s ruling that traditional negligence
principles apply when an injured plaintiff seeks recovery for injury caused by the landowner’s
affirmative conduct “could throw the law of premises liability into turmoil” (doc. 109-1, at 6) is
misguided. As shown above and the August 9 Order, Alabama courts have been distinguishing
between injuries caused by a landowner’s affirmative conduct and those caused by a condition of
the premises for many years. No chaos, turmoil, or dire consequences for shopkeepers or
appellate courts have ensued; to the contrary, decisions such as Lilya and Powell reveal that these
principles are well-settled and uncontroversial in Alabama jurisprudence today.
Third, any contention by defendant that the Court should shrug off the very clear
statements by the Alabama courts in Lilya, Baldwin, Orr and Powell as dicta rather than holdings
is unpersuasive. Nowhere do Erie principles restrict federal courts sitting in diversity to look
solely to state-court holdings in determining applicable law. To the contrary, federal courts
routinely look to and follow state appellate courts’ unambiguous pronouncements about an issue,
whether presented as holding or dicta. See, e.g., LeFrere v. Quezada, 582 F.3d 1260, 1267 (11th
Cir. 2009) (“Although dicta is not binding, it can provide federal courts with insight into a state
court’s thinking.”); Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d
7

In its brief, defendant’s assertion that “Baldwin involved licensee plaintiffs” (doc.
109-1, at 9) is demonstrably erroneous. See Baldwin, 604 So.2d at 350 (“Baldwin’s status is that
of an invitee”). Defendant’s confusion on this point underscores how unimportant the plaintiff’s
status is in these cases.

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1317, 1326 n.5 (11th Cir. 2005) (“a federal court attempting to forecast state law must consider
whatever might lend it insight, including relevant state precedents, analogous decisions,
considered dicta, scholarly works, and any other reliable data tending convincingly to show how
the highest court in the state would decide the issue at hand”) (citation and internal quotation
marks omitted); First Financial Bank v. CS Assets, LLC, 2011 WL 2936663, *2 n.2 (11th Cir.
July 22, 2011) (“We recognize that the clear expressions of the Alabama Supreme Court … were
not holdings of those cases. Nonetheless, … [t]he Alabama Supreme Court has spoken clearly
and unequivocally on this issue. For us, these pronouncements provide sufficient and significant
guidance on how the Alabama Supreme Court would rule if presented with this issue.”).
Fourth, defendant suggests that the August 9 Order amounts to an unreasonable,
irresponsible “Erie guess” about an issue that “Alabama has not spoken to.” (Doc. 109-1, at 11.)
The Court disagrees. As explained in the August 9 Order and summarized above, Alabama
appellate courts have on several occasions since the late 1980s been squarely confronted with the
question of whether an injured plaintiff’s claims against a landowner are governed by traditional
negligence or premises liability standards. In each of those cases (regardless of the injured
plaintiff’s classification), the Alabama courts have announced that the analysis is driven by
whether the injury was caused by the landowner’s affirmative conduct (in which case traditional
negligence law applies) or by a condition of the premises (in which case premises liability law
applies). Although defendant makes much of this case arising in the invitor/invitee context, so
did Lilya. So did Baldwin. In each of those decisions, the Alabama Supreme Court applied the
affirmative conduct / condition of the premises distinction to determine which law governed.
Alabama courts have spoken loudly and clearly on this issue. Defendant’s dissatisfaction with
those courts’ message is not a viable ground for judgment as a matter of law or for new trial.
2.

Defendant’s Contention that this Case Morphed into a Premises Liability
Action at Trial.

Going into trial, everyone understood that this case would be governed by traditional
negligence principles, and not by premises liability law. The August 9 Order was as clear as the
day is long on this point.8 On the morning that the trial commenced, the Court reiterated the
8

See Costa, 2012 WL 3288680, at *4 (“This action will not be tried as a premises
liability case, but will rather be presented to the jury in the traditional negligence framework that
plaintiff has touted from the outset of the proceedings.”).

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point, as follows: “This action will not be tried as a premises liability case but will, rather, be
presented to the jury in the traditional negligence framework. Those are the contours of this
case, and I expect the parties to abide by that.” (Doc. 107, at 7.)9
For whatever reason, the parties did not abide by that unambiguous admonition at trial.
In the afternoon session on the first day of trial, plaintiff’s counsel inexplicably asked the Sam’s
employee (Christopher Middleton) and the Sam’s manager (Bobby Browning) a series of
questions about the condition of the premises, involving matters such as Sam’s policies for the
proper stacking of merchandise and whether the televisions were stacked properly on the day in
question. (Doc. 107, at 164-70, 173-76, 182-85.)10 Plaintiff’s counsel also asked Browning a
series of questions about whether he had surreptitiously made copies of Ms. Costa’s private
papers immediately after the accident. (Doc. 107, at 186-93.) All of this testimony was plainly
objectionable on relevance grounds given the Court’s pretrial rulings. Yet defense counsel sat
mute, never objecting to these lines of questioning as being outside the clear parameters of the
trial as designated by the Pretrial Order, the August 9 Order, and the contours of the case as
announced by the Court that morning.
Rather than objecting contemporaneously during the trial, Sam’s now endeavors to parlay
plaintiff’s mystifying, short-lived premises liability detour into post-trial relief, arguing that
“Plaintiff undoubtedly converted this case to a premises liability matter.” (Doc. 109-1, at 14.)
He did not. Whatever plaintiff’s counsel’s thinking may have been, in response to direct, pointed
questioning by the Court at the end of the first day of trial, he was emphatic that he still intended
to try the case solely as one for simple negligence. In particular, the Court asked, “So, what is
this case? Is it simple negligence or is it a premises liability case or it both or what – I mean,

9

Defendant acknowledges that it fully understood as much, going into the trial.
(Doc. 109-1, at 23 (“The Court made it clear from the outset that this case was to be governed by
and tried as a traditional negligence case. That is what Sam’s prepared for and that is what
counsel argued in their respective opening statements.”).)
10

An example of the types of questions that plaintiff’s counsel asked is as follows:
“It would have been safer to stack the boxes with some kind of a wire or something across the
front of them to keep them from tipping out just in case an accident like this to occur, wouldn’t
it?” (Doc. 107, at 184.) Such queries unambiguously went to the presence or absence of a
hazardous condition on Sam’s premises, which was not a triable issue herein.

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what are we dealing with here?” (Doc. 107, at 201.) Plaintiff’s counsel answered, “Well, it’s
just a simple negligence case.” (Id.)
Having thus confirmed that plaintiff’s counsel was not seeking to convert this case into a
premises liability matter, the Court was left with the question of how to keep the trial on track as
a traditional negligence case, consistent with plaintiff’s stated intentions from the inception of
this matter, as well as the Pretrial Order, the August 9 Order, the parties’ opening statements, and
plaintiff’s counsel’s statement at the close of all the evidence that he still viewed the case as
solely one for traditional negligence, not premises liability. Of course, district courts are vested
with broad discretion in how to manage the trials over which they preside.11 In this case, the
Court announced to the parties on the morning of the second day of trial that “I am confident that
this case is not about premises liability, notwithstanding the questions that were asked of the two
witnesses at the end of the trial yesterday. It’s still not a premises liability case. It’s a straight
negligence case. That’s what it’s been from the beginning, and I think that’s what it is now.”
(Doc. 108, at 206.) To allay any possible confusion to the jury on this score, and in the absence
of any constructive proposals for remedial measures by either side, the Court exercised its
inherent authority to manage the trial by crafting an appropriate curative instruction. That
instruction was included in the final jury charge to direct jurors that they could not base
defendant’s liability on whether there was a hazardous condition in the store, or whether the
premises were safe or unsafe. (Doc. 108, at 253.) The Court thus ensured that the issue of
premises liability remained off the table, as it had properly been since the start of the trial. No
one objected to the wording or inclusion of this curative instruction. Both sides presented their

11

See, e.g., Tran v. Toyota Motor Corp., 420 F.3d 1310, 1315 (11th Cir. 2005)
(“District courts have broad authority over the management of trials.”); United States v. Colomb,
419 F.3d 292, 300 (5th Cir. 2005) (“The scope of the district court’s discretion to manage trials
before it is and must be particularly broad. … [D]istrict courts have wide-ranging control over
management of their dockets, the courtroom procedures, and the admission of evidence.”)
(citation omitted); see generally Equity Lifestyle Properties, Inc. v. Florida Mowing and
Landscape Service, Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (“A district court has inherent
authority to manage its own docket so as to achieve the orderly and expeditious disposition of
cases.”) (citation and internal quotation marks omitted).

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closing arguments based solely and exclusively on a traditional negligence framework.12 The
jury was instructed solely and exclusively on traditional negligence principles.
The point is simple: This sequence of events negates Sam’s characterization that
plaintiff’s counsel’s unobjected-to questioning of two witnesses concerning merchandise
stacking somehow instantaneously and irrevocably “converted this case to a premises liability
matter.” (Doc. 109-1, at 14.) It did no such thing. Rather, the case was tried, argued, presented
to, and decided by the jury as a traditional negligence action. Because the case was prepared,
tried and submitted to the jury solely on traditional negligence grounds, defendant’s argument
that it is entitled to judgment as a matter of law or a new trial because a few errant (and
unobjected-to) questions by plaintiff’s counsel converted the trial into a premises liability case is
counterfactual and unfounded. Also, because this case was properly tried and adjudicated as a
traditional negligence case, whether the evidence could have supported Sam’s liability under
premises liability law had the action been tried as a premises liability case is a pointless inquiry
founded on a false premise, and cannot form a cognizable basis for post-judgment relief under
Rule 50 or Rule 59.
B.

Lack of Proof of Negligence.

Next, Sam’s asserts that it is entitled to judgment as a matter of law, even under a
traditional negligence framework, because plaintiff presented no evidence of negligence.
According to Sam’s, “[t]here was no testimony that what Mr. Middleton did was unreasonable or
that it was foreseeable and probable (not merely possible) that injury would result” from his
actions. (Doc. 109-1, at 19.)
12

For example, plaintiff’s counsel’s argument to the jury was that they should hold
Sam’s liable because “the evidence is clear that Mr. Middleton knocked the box over. … Was
Chris Middleton the one who knocked the box? Did the box hit Mr. Costa’s leg? Did it cause
him the injury? I’m not going to tell you what you have to do, but I’m asking you for the result
that, yes, they were responsible for that act.” (Doc. 108, at 219.) Defendant’s counsel argued
the case the same way, telling the jury in his closing argument that “[t]here has been no
testimony criticizing what Mr. Middleton did. … Instead, each witness has told you and has
agreed, we’re sorry, it’s just an unfortunate accident.” (Doc. 108, at 233.) Defense counsel
specifically emphasized the point in its closing argument that it was not a premises liability case,
arguing as follows: “But listen to the judge because he’s going to instruct you, he’s going to tell
you that the condition of the premises is not for you to even consider in this case, that that has
nothing to do with this matter.” (Doc. 108, at 231.)

-12-

Defendant’s Rule 50 Motion based on lack of proof of negligence faces extraordinarily
difficult legal obstacles, which defendant neither acknowledges nor overcomes. It is black-letter
law that “[t]he determination of negligence is ordinarily one for the trier of fact because of the
necessity that the trier of fact assess the reasonableness of defendant’s conduct under all the
circumstances. … The party seeking to have an issue of negligence withdrawn from the jury in
federal court bears a heavy burden.” Smith v. Tennessee Valley Authority, 699 F.2d 1043, 1045
(11th Cir. 1983); see also Decker v. Gibson Products Co. of Albany, Inc., 679 F.2d 212, 216 (11th
Cir. 1982) (“the determination of negligence is ordinarily within the province of the trier of fact
because of the peculiarly elusive nature of negligence and the necessity that the trier of fact
assess the reasonableness of the conduct under all the circumstances”). The legal test is
particularly daunting under Alabama law; indeed, the Alabama Supreme Court has opined that
“only when one would have to infer from no evidence at all that the defendant breached its duty
can a court take the question from the jury and enter a judgment as a matter of law for the
defendant.” Glass v. Birmingham Southern R. Co., 905 So.2d 789, 795 (Ala. 2004) (clarifying
that, where a duty of care is owed, a jury issue on negligence is presented unless there is “a
complete absence of evidence indicating a breach of [defendant]’s duty”); Barnett v. Norfolk
Southern Ry. Co., 671 So.2d 718, 720 (Ala.Civ.App. 1995) (“Even where the evidence does not
conflict, the question whether a person has exercised due care is still normally a question of fact
for the jury to determine.”) (citation omitted).
Was there a “complete absence of evidence” that Middleton (Sam’s employee) failed to
use reasonable care to prevent harm to others on this occasion? Absolutely not. This is not a
close question. The jury heard testimony from Ms. Costa, who was an eyewitness, that
Middleton’s body knocked the television over onto Costa as Middleton was emerging from
under a shelf where he had plugged in a television. (Doc. 107, at 51.) The jury watched video of
the accident that showed the same thing. Ms. Costa indicated that Middleton never cautioned
them that “he was about to go underneath the shelving and that that might be something that
would be dangerous to [her] or Mr. Costa.” (Id. at 83.) The jury heard Costa’s testimony in his
video deposition that Middleton “tried to push the box. … Apparently, when he went to push it,
it didn’t slide. It stuck and tipped. Because the next thing I know is the TV is – the TV on the
bottom shelf, this big box, is falling over and it hits me in the side of my leg.” (Id. at 142.) The
jury heard Middleton testify that, in trying to plug in Costa’s television, he moved another

-13-

television to the edge of a shelf, even though Costa was standing nearby; and that as Middleton
emerged from the shelving, that “there’s a possibility I could have backed into the TV to knock it
over.” (Id. at 170-72.) Middleton testified, “I’m assuming I probably backed into the TV
coming out. … As far as I know, that is probably the most legitimate reason it did fall.” (Id. at
172.) Middleton also said that when he knocked the television over, Costa was standing only “a
couple feet back … in the vicinity to where I was at.” (Id. at 173.)13 The jury heard Browning
(Sam’s manager) testify that Middleton would have had to strike the television with significant
force (i.e., harder than a “bump test”) in order to knock it over. (Id. at 183-84.)
This testimony, considered in the aggregate along with all the other evidence at trial,
plainly raises a reasonable inference of negligence by Middleton in the course and scope of his
employment that may properly be attributed to Sam’s (his employer) via respondeat superior.
While defendant’s Rule 50 Motion criticizes plaintiff’s counsel for presenting a circumstantial
case, no principle of law or procedure obligated plaintiff to prove negligence via direct evidence
(i.e., “testimony that what Mr. Middleton did was unreasonable” (doc. 109-1, at 19)). A
reasonable jury could have looked at this evidence, and concluded that Middleton failed to use
reasonable care to prevent harm to Costa when he (i) moved a large boxed television to a
precarious position at the edge of shelf, and in his way as he reached into the shelving; (ii)
positioned his body next to that television as he worked under shelving to plug in another
television; (iii) failed to warn Costa (who was standing nearby) to back away; (iv) extricated
himself from the shelving in a careless or unsafe manner; and (v) knocked his body into the box
with sufficient force (i.e., harder than a bump test) to cause it topple over onto the customer.
Under the circumstances, and given this evidence, the Court will not invade the province
of the jury and enter judgment in defendant’s favor as a matter of law when there was obviously
evidence from which a reasonable jury could conclude that Sam’s was negligent. See generally
Smith v. District of Columbia, 413 F.3d 86, 97 (D.C. Cir. 2005) (“Intrusion upon the rightful
province of the jury is highly disfavored. We have repeatedly emphasized that the jury’s verdict
must stand unless the evidence, together with all inferences that can reasonably be drawn
13

Given plaintiff’s counsel’s extensive questioning of Middleton at trial about his
specific acts and omissions in causing the television to fall over, defendant’s contention that
“[t]he entirety of Plaintiff’s examination of Mr. Middleton … related to how Sam’s displays is
merchandise” (doc. 109-1, at 20) mischaracterizes the evidence.

-14-

therefrom is so one-sided that reasonable people could not disagree on the verdict.”) (citations
and internal marks omitted). The Motion for Judgment as a Matter of Law on this point is
groundless.
C.

Admission of Evidence of Sam’s Corporate Conduct.

Defendant also seeks a new trial on the ground that plaintiff injected “confusion” into the
trial by eliciting testimony from the two Sam’s witnesses about the condition of the premises,
how merchandise was stacked, and so on. According to defendant, “[t]his confusion necessitates
a new trial.” (Doc. 109-1, at 25.) In particular, defendant reasons that the “confusion” about
how the testimony concerning Sam’s merchandise stacking policies and procedures meshed with
plaintiff’s traditional negligence theory of liability meant that the jury “had to conclude” that
Sam’s was liable for failing to stack and secure its merchandise properly. (Id.) This argument
for a new trial under Rule 59 is fatally flawed in at least four respects.
First, while the Court agrees that plaintiff’s counsel’s questioning of Middleton and
Browning about irrelevant matters bore a potential for confusing the jury, defendant’s conduct
was instrumental in creating that confusion. As plaintiff’s counsel was asking questions about
stacking policies and bump tests and other ways merchandise could have been secured, defense
counsel sat idly by, not objecting.14 Defendant now says it should not be faulted for not
objecting because “Sam’s has always maintained … that the case should be governed by
Alabama premises law. There was no obligation on the part of Sam’s counsel to object when
Plaintiff’s counsel proved him right.” (Doc. 109-1, at 14 n.6.) By all appearances, then,
defendant made a strategic decision not to object to the testimony that it now protests was so
confusing and prejudicial, because it hoped to use such testimony to transform this case into the
premises liability lawsuit it had always wanted. The direct consequence of defendant’s
opportunistic behavior was that this “confusing” testimony was heard by the jury, causing
defendant what it now calls “unfair prejudice.”
14

As the Court noted in addressing defendant’s ensuing motion for mistrial based on
the “confusion” caused by plaintiff’s counsel’s injection of premises liability concepts into his
questioning of witnesses, “first of all, it may have been helpful if the Defendant had objected at
the time that information was elicited from the witness. We did not get a contemporaneous
objection. I would have been more than pleased to sustain it and to give a curative instruction at
that time. That didn’t happen, so we are where we are today.” (Doc. 108, at 211.)

-15-

In short, defendant had the power and opportunity to prevent this “confusion” and
“prejudice” from ever surfacing, simply by lodging a contemporaneous objection. Having
elected not to do so in hopes of promoting defendant’s own strategic agenda of shape-shifting
this litigation into something that it never was and never had been, defendant cannot now be
heard to complain about being “unfairly prejudiced” by this “confusing” evidence simply
because that roll of the dice did not pan out as defendant had hoped. See generally Wilson v.
Attaway, 757 F.2d 1227, 1242 (11th Cir. 1985) (“objections to the admission of evidence … are
preserved only if they are timely and state the specific ground of objection, if the specific ground
was not apparent from the context”) (citations and internal quotations omitted); Karam v.
Sagemark Consulting, Inc., 383 F.3d 421, 427 (6th Cir. 2004) (“In the absence of a timely
objection, such testimony [which may have been inadmissible] is generally not considered to be
erroneously admitted.”); BFS Retail & Commercial Operations, LLC v. Harrelson, 701 F.
Supp.2d 1369, 1377 (S.D. Ga. 2009) (“Generally, when a party does not object to the admission
of certain evidence at trial, that party waives his right to complain about such admissions later.”);
Rule 103(a)(1), Fed.R.Evid. (a party preserves a claim of error in the admission of evidence
“only if the error affects a substantial right of the party and … a party, on the record … timely
objects or moves to strike”).15
Second, defendant is not entitled to a new trial on the basis of “confusion” resulting from
the testimony concerning condition of the premises because the Court took adequate and
appropriate steps to alleviate the confusion. In particular, the Court spelled out plaintiff’s theory
of liability for the jury, instructing them that “the disputed issues of fact to be decided by you in
15

In a nutshell, then, defendant’s conduct consisted of (i) declining to object when
plaintiff’s counsel elicited obviously irrelevant testimony concerning premises liability concepts
despite the Court’s clear pretrial rulings excluding a premises liability theory; (ii) using that
testimony as a springboard to attempt to transform the case into a premises liability trial, as
defendant had always wanted it to be; and (iii) when that maneuver failed, complaining that the
resulting admission of such testimony was so unfairly prejudicial to defendant that a mistrial or
new trial is necessary. This course of conduct veers perilously close to invited error, if not
actually qualifying as same. See generally Pensacola Motor Sales Inc. v. Eastern Shore Toyota,
LLC, 684 F.3d 1211, 1231 (11th Cir. 2012) (“A party that invites an error cannot complain when
its invitation is accepted.”); Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1213 (11th Cir.
2011) (“The invited error doctrine stands for the common sense proposition that someone who
invites a court down the primrose path to error should not be heard to complain that the court
accepted its invitation and went down that path.”).

-16-

this case are whether the Defendant was negligent in knocking over a television box onto Eugene
Costa.” (Doc. 108, at 252.) The jury was also instructed that “Plaintiff’s negligence claim rests
on her contention that Mr. Costa was harmed by the negligence of the Defendant’s employee,
Chris Middleton.” (Id. at 253.) To confirm the point, the Court sua sponte formulated and gave
the following curative instruction at the end of the trial: “[Y]ou are instructed that you cannot
find the Defendant liable based on a hazardous condition in the store. Whether the premises
were safe or not is none of your concern.” (Id. at 253.) Curative instructions are an effective,
efficient and oft-used tool for erasing any taint caused by testimony or argument that a jury
should not have heard. Jurors are presumed to follow such instructions.16 Not only was this
curative instruction given, but defense counsel expressly highlighted it to the jury in his closing
argument. (Doc. 108, at 231.) More generally, neither side in its closing argument said anything
about stacking policies, hazardous conditions, or the manner in which televisions were or should
have been stacked or displayed by Sam’s. This evidence simply was not mentioned by either
side. Through this omission, coupled with the Court’s clear directive to the jury “that you cannot
find the Defendant liable based on a hazardous condition in the store” and could not base their
verdict on “[w]hether the premises were safe or not,” any confusion injected into the record by
plaintiff’s counsel’s unobjected-to premises-liability questioning of Middleton and Browning
was effectively neutralized. These circumstances simply do not give rise to the sort of
“substantial prejudice” or “manifest injustice” of the kind needed to support a motion for new
trial under Rule 59.
Third, this ground for new trial is improper insofar as it is predicated on defendant’s
dissatisfaction with the Court’s curative instruction. In support of its Rule 59 Motion, Sam’s
attacks the instruction as lacking “context,” failing to specify “to what evidence or law the Court
was referring,” and being so “confusing and non-specific” that it “could not have had the desired
16

See United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007) (“[W]hen a
district court gives a curative instruction, the reviewing court will reverse only if the evidence is
so highly prejudicial as to be incurable by the trial court’s admonition.”) (citation omitted); see
also United States v. Almanzar, 634 F.3d 1214, 1223 (11th Cir. 2011) (“The district court
instructed the jury to disregard Agent Jones’s remark, and we presume the jury complied with
that instruction.”); United States v. Perez, 30 F.3d 1407, 1411 (11th Cir. 1994) (“When a court
gives a direct and explicit curative instruction regarding improper testimony, it supports the
court’s decision not to grant a mistrial by decreasing the possibility of undue prejudice.”).

-17-

result.” (Doc. 109-1, at 25.) This argument is not cognizable on a motion for new trial because
defense counsel waived it. The time to object to the proposed curative instruction was at trial,
not a month after the fact in a post-trial motion. The Court circulated a proposed jury charge and
held a charge conference for the specific purpose of allowing the parties to object and otherwise
to be heard on particular aspects of the instructions. If defense counsel felt that the proposed
curative instruction was “confusing and non-specific,” or wanted it to be expanded to delve into
the particulars of the evidence and legal theories that the jury was not to consider, counsel could
and should have spoken up at that time. Instead, when asked at the charge conference if they had
any objections or other matters to take up with regard to the jury charge, defense counsel
responded, “Judge, we’re okay with everything that you’ve given us, but just for the record, we
would like to preserve a position that it is still a premises liability case.” (Doc. 108, at 212.)
Defense counsel said nothing about alleged deficiencies in the curative instruction, and made no
request that it be revised or expanded to address the concerns now articulated in their Rule 59
Motion.
By saying they were “okay with everything that you’ve given us,” counsel agreed to that
charge; therefore, review of it has been waived under the doctrine of invited error. See United
States v. Dortch, --- F.3d ----, 2012 WL 4335185, *6 (11th Cir. Sept. 11, 2012) (“[W]hen a party
agrees with a court’s proposed instructions, the doctrine of invited error applies, meaning that
review is waived even if plain error would result.”) (citation omitted). Even setting aside that
doctrine, it is a basic principle of trial procedure that failure to object to jury instructions
constitutes a waiver except “in narrow circumstances when an error is so fundamental as to result
in a miscarriage of justice or when the district court’s instruction amounts to plain error.” Heath
v. Suzuki Motor Corp., 126 F.3d 1391, 1394 (11th Cir. 1997) (citation omitted); see also S.E.C. v.
Diversified Corporate Consulting Group, 378 F.3d 1219, 1226-27 (11th Cir. 2004) (where losing
party argued on appeal that district court’s curative instruction was insufficient to cure error
caused by female juror’s improper comment, appeals court refused to consider it because “if he
thought the court’s curative instruction was inadequate, he had a duty to speak up” at the time,
but did not do so); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999)
(“We interpret Rule 51 strictly, and require a party to object to a jury instruction or jury verdict
form prior to jury deliberations in order to preserve the issue on appeal.”); In re Daikin Miami
Overseas, Inc., 868 F.2d 1201, 1206 (11th Cir. 1989) (“If a party has an objection, the party must

-18-

make the objection. Failure to interpose an objection in a timely manner means the party forgoes
raising the issue.”).17 Had Sam’s proposed modifications to the curative charge at the charge
conference, the Court certainly would have considered them. Sam’s did not. Having told the
Court that it was “okay” with the proposed curative instruction at that time, Sam’s cannot and
will not be heard to complain now that it deserves a new trial because that curative instruction
was “confusing and non-specific,” or should have provided more or different guidance to the
jury. Such Monday-morning quarterbacking has no place in a Rule 59 request.18
17

See generally Givens v. O'Quinn, 447 F.Supp.2d 593, 601 (W.D. Va. 2006) (“[A]
motion for a new trial cannot be based on alleged errors in the instructions or verdict form when
no corresponding objections were raised at trial.”); Cipriani v. Lycoming County Housing
Authority, 177 F. Supp.2d 303, 310 (M.D. Pa. 2001) (“A party moving for a new trial on the
basis of an improper jury instruction must have made an appropriate and timely objection prior
to the start of jury deliberations.”) (citations omitted); Rule 51, Fed.R.Civ.P. (reciting proper
procedure for preserving objections to jury instructions).
18

If Sam’s intends to hang its hat on a “plain error” theory for the curative
instruction, such a contention is doomed on its face. With respect to jury instructions, trial courts
are afforded “wide discretion as to the style and wording employed.” Gowski v. Peake, 682 F.3d
1299, 1310 (11th Cir. 2010) (citation and internal quotation marks omitted). In this Court’s view,
the curative instruction given was firmly within this “wide discretion” and was sufficient to
apprise the jury that premises liability was out of the case and that they could not hold Sam’s
liable on the theory that the store was unreasonably dangerous or the stacked boxes constituted a
hazardous condition. (This is particularly true, given the other instructions telling the jury that
the disputed issue of fact was whether Sam’s had been negligent in knocking the television onto
Costa and that plaintiff’s negligence claim rested on whether Costa had been harmed by
Middleton’s negligence.) The Court intentionally avoided including more detail about which
testimony or legal theory these instructions related to, so as to avoid calling unnecessary
attention to that testimony or theory. In the Court’s experience, belaboring a point such as this
may have the unintended consequence of actually causing the jury to focus on that which they
are supposed to be disregarding. This judgment call was well within the Court’s discretion, and
in no way prejudiced or compromised defendant’s substantial rights. Certainly, no purported
defect in that instruction could come even close to satisfying the Eleventh Circuit’s stringent test
for jury instruction errors on plain error review. See, e.g., Parker v. Scrap Metal Processors,
Inc., 386 F.3d 993, 1018 (11th Cir. 2004) (“Plain error review is very stringent and reversal for
incorrect jury instructions will occur only in exceptional cases when the error is so fundamental
that it results in a miscarriage of justice.... To meet this standard, the party must prove that the
instruction was a misstatement of law that likely led to an incorrect verdict,” and that the
instruction “mislead[s] the jury or leave[s] the jury to speculate as to an essential point of law.”)
(citation omitted); Farley, 197 F.3d at 1330 (to be cognizable on plain error review, the
challenged jury instruction “must be so prejudicial as to have affected the outcome of the
proceedings”) (citations and internal quotation marks omitted). In any event, the Court is
(Continued)
-19-

Fourth, defendant’s argument about confusion and undue prejudice also fails insofar as
Sam’s insists that “the jury should have been instructed on premises liability” after plaintiff’s
counsel extracted unobjected-to testimony from Sam’s employees concerning merchandise
stacking policies and so on. This argument is redundant of that presented in Section III.A.,
supra, and is rejected for the same reasons set forth therein.
For all of these reasons, individually and collectively, Sam’s is not entitled to a new trial
based on the purported “confusion” interjected into the trial when plaintiff’s counsel pursued a
premises-liability type line of questioning of two witnesses while defense counsel said nothing.
D.

Dr. O’Dowd’s Testimony Concerning Costa’s Death.

As its fourth category of grounds for new trial, defendant contends that “Dr. O’Dowd’s
Testimony was Unfairly Prejudicial and Confusing, Warranting a New Trial” (doc. 109-1, at 25.)
Dr. O’Dowd, Costa’s longtime cardiologist and treating physician, testified by video deposition
at trial. (Doc. 107, at 87-112.) There was substantial pretrial motion practice concerning the
scope and extent of Dr. O’Dowd’s video deposition that would be played to the jury, with the
Court entering orders bearing on that issue on both August 6, 2012 and August 8, 2012. (See
docs. 85, 86.) Defendant now seeks to re-litigate those pretrial admissibility determinations, as
well as to pursue a new argument for the first time.
1.

Purported Contradiction of Court’s Earlier Orders.

The premise of this ground for new trial is defendant’s contention that Dr. O’Dowd was
allowed to testify about the causes of Costa’s death “[i]n contradiction of the Court’s Order”
(doc. 109-1, at 2), and was erroneously allowed “to express an opinion the Court held to be both
irrelevant and prejudicial.” (Id. at 3.) By Sam’s reckoning, the testimony the Court admitted
concerning the causal relationship between the Sam’s accident and Costa’s health deterioration
“is the very testimony that Sam’s sought to exclude; it is the very testimony the Court ruled
could not be introduced, yet it was.” (Id. at 26.)
Defendant’s argument either misunderstands or mischaracterizes the underlying rulings.
Contrary to defendant’s Rule 59 position, this Court never found that the jury could not hear that

confident that no manifest injustice resulted from the challenged curative instruction, as would
be necessary for Sam’s to be entitled to a new trial on that basis.

-20-

Costa was deceased or that the Sam’s injury caused his health to decline in the two years before
his death. The August 6 Order explained as follows: (i) “plaintiff brought no wrongful death
claim and is barred as a matter of Alabama law from recovering for [Costa’s] death on her
personal injury claim” (doc. 85, at 3); (ii) under Alabama law, “plaintiff may put on evidence of
Costa’s deteriorating physical condition, pain and suffering, and so on (provided that she shows a
causal connection between those circumstances and his injury at Sam’s) from the moment of the
accident until the moment of his death” (id. at 4); but (iii) “Plaintiff may not present evidence or
argument at trial that Costa’s leg injury caused or was a contributing factor in his death” (id. at
5).19 The admissibility of this portion of Dr. O’Dowd’s testimony was thus evaluated by two
principles. First, to the extent that he testified to medical opinions that the Sam’s accident
caused a deterioration in Costa’s physical condition, pain and suffering and the like up until the
moment of his death, such evidence was properly admissible as proof of damages in this personal
injury lawsuit. Second, to the extent that he testified that the Sam’s accident caused or
contributed to Costa’s death, such evidence was inadmissible because no wrongful death claim
was brought.
Defendant’s Rule 59 argument inexplicably focuses on the second statement, while
ignoring the first. In particular, Sam’s balks that the Court contradicted itself by allowing Dr.
Dowd to testify as follows: “I believe that it’s likely that had he not had that injury and that
setback that he would not have deteriorated as quickly as he did.” (Doc. 107, at 101.) That
testimony plainly and directly bears on the relationship between Costa’s deteriorating health and
the Sam’s injury. As such, this opinion was properly admissible under the clear terms of the
19

Defendant’s motion in limine sought to prevent plaintiff from presenting evidence
that Costa’s death “was caused by, the result of, or was [in] any way contributed to by Mr.
Costa’s incident as Sam’s.” (Doc. 66, at 1.) The August 6 Order granted the motion, but did so
by adopting the principle that plaintiff could not present evidence that Costa’s death was caused
or contributed to by the Sam’s incident. The August 6 Order did not declare specific statements
or opinions of Dr. O’Dowd to be inadmissible, but simply set forth the legal principles that
would govern whether those specific statements or opinions were or were not admissible. Two
days later, on August 8, 2012, the undersigned entered another Order (doc. 86) implementing and
applying the principles announced in the August 6 Order to the specific portions of Dr.
O’Dowd’s testimony to which objection was taken. Contrary to defendant’s current position, the
two written orders worked hand in hand, with the earlier setting forth the governing rules and the
later applying them. There is no contradiction whatsoever between the two.

-21-

August 6 Order, as being relevant to the question of personal injury damages (pain and suffering,
mental anguish, aggravation of pre-existing condition). Defendant’s contention to the contrary
flirts with frivolity.
2.

Cumulative Effects of Dr. O’Dowd’s Testimony.

Defendant also maintains that a new trial is warranted because Dr. O’Dowd’s testimony
had the cumulative effect of “present[ing] to the jury the theme that the Sam’s incident … caused
his death.” (Doc. 109-1, at 27.)20 Again, none of this evidence was admitted for the purpose of
showing that Sam’s caused or contributed to Costa’s death. Rather, it was admitted for the
purpose of establishing the fact of and the causal connection between the Sam’s accident and
Costa’s pain and suffering, aggravation of pre-existing condition, and so on in the remaining
years of his life.21 Evidence may be relevant and admissible for one purpose, but not for another.
If Sam’s were worried at trial that the jury might consider this evidence for the improper purpose
outlined in its Rule 59 Motion (i.e., as evidence that “Sam’s brought about his untimely and early
demise” (doc. 109-1, at 28)), it could and should have requested a limiting instruction under the
Federal Rules of Evidence. See Rule 105, Fed.R.Evid. (“If the court admits evidence that is
20

Astonishingly, defendant suggests that the cumulative effect of this testimony was
exacerbated by the Court’s instruction to the jury allowing the award of damages “for the
aggravation of any injury or condition.” (Doc. 109-1, at 28 n.11.) Defendant theorizes that this
charge was improper or “further complicated the issue” because it thinks the term “aggravation”
could be read as including death. Later in its brief, Sam’s goes even further, arguing that the jury
“obviously interpreted [the instruction] to mean aggravation causing death and awarded an
element of damage not prescribed by law.” (Id. at 32.) Defendant’s position fails. In the first
place, the language that Sam’s now finds objectionable was drawn from Alabama Pattern Jury
Instructions § 11.13, and is a correct statement of law. In the second place, if Sam’s did not like
the “aggravation” charge, or felt that the term “aggravation” would somehow erroneously be
construed by the jury as meaning “aggravation causing death,” then defense counsel should have
objected to it at the charge conference instead of saying “we’re okay with everything that you’ve
given us.” (Doc. 108, at 212.) The objection has been waived, and defendant must lie in the bed
it has made.
21

The objected-to testimony clearly was relevant and admissible for this purpose.
For example, Dr. O’Dowd opined that “he continued to struggle throughout the rest of his life,”
that “he deteriorated significantly subsequent to that injury,” and that “he got knocked down to a
lower spot and he got accelerated” in his decline as a result of the Sam’s injury. (Doc. 109-1, at
28.) This evidence goes to the relevant, admissible points that Costa’s health declined after the
Sam’s accident, and that his treating physician believed the Sam’s accident caused or contributed
to that decline.

-22-

admissible against a party or for a purpose – but not against another party or for another purpose
– the court, on timely request, must restrict the evidence to its proper scope and instruct the jury
accordingly.”). Sam’s failure to do so then precludes it from being heard to complain now that
the jury might have considered this evidence (which was obviously admissible for one purpose)
for another purpose as to which it would not be admissible. See, e.g., United States v. Smith, 459
F.3d 1276, 1297 (11th Cir. 2006) (explaining that because Rule 105 provides for limiting
instructions upon request, “[t]he failure to give a limiting instruction is error only when such an
instruction is requested”) (citation omitted); Bezalel v. Innovative Operators, LLC, 2009 WL
2972210, *3 (11th Cir. Sept. 18, 2009) (“the burden to request a limiting instruction rests with the
party seeking such an instruction”).22
3.

Dr. O’Dowd’s Testimony Concerning Hospitalizations.

To round out this category of grounds for seeking a new trial, defendant argues that the
jury should not have been permitted to hear Dr. O’Dowd’s testimony concerning four
hospitalizations that Costa endured between the date of the accident and the date of his death.
Primarily, defendant couches this argument in terms of relevance, summarizing its point as
follows: “[T]he jury was left with testimony probative of no issue which was no doubt confusing
and, as a result, unfairly prejudicial.” (Doc. 109-1, at 31.)
Defendant is not entitled to post-trial relief on this ground for at least five distinct
reasons. First, the challenged testimony was indeed relevant to plaintiff’s damages. When asked
about the causal nexus between these hospitalizations and the Sam’s accident, Dr. O’Dowd
allowed that “it becomes more difficult medically” to determine how related these
22

Any suggestion by defendant that this Court had a duty sua sponte to provide such
a limiting instruction is contrary to law. Besides, the undersigned refrained from unilaterally
giving a limiting instruction on this point out of concern that it would do more harm than good.
Defendant was clear that it wished to prevent the jury from hearing anything more about Costa’s
death than was necessary. For example, before Dr. O’Dowd’s video deposition was played,
defense counsel argued at sidebar, “Our biggest concern is that they mention death …. That’s
seven mentions of death and deteriorating until his death. We think that’s highly prejudicial.”
(Doc. 107, at 84.) A limiting instruction on this issue would have further underscored and
emphasized the fact of Costa’s death for the jury. Under the circumstances, the Court left this
important strategy determination in the hands of defense counsel. Having made its choice not to
seek a limiting instruction, however, defendant cannot now be heard to complain that it is
entitled to a new trial because this relevant, admissible evidence might have been considered for
a purpose other than that for which it was admitted.

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hospitalizations were to the accident as more time passed after the accident, but that, “Kind of
the way I look at it, though, is that he got knocked down to a lower spot and he got accelerated.
So, he had a number of admissions subsequent to that.” (Doc. 107, at 100-01.) Clarifying this
opinion, Dr. O’Dowd testified, “I believe that it’s likely that had he not had that injury and that
setback that … he would not have had those hospitalizations over that time course. That’s what I
think.” (Id. at 101.) Such evidence satisfies the low threshold of relevance as to the
compensatory damages to which plaintiff was entitled for pain and suffering, and aggravation of
pre-existing conditions. That testimony was properly allowed on this basis.
Second, defendant’s objection to the phrase “partially related” is misplaced because Dr.
O’Dowd never testified that the hospitalizations were “partially related” to the accident. That
was a term used by plaintiff’s counsel. Dr. O’Dowd did not adopt it with respect to the
hospitalizations. To be sure, he did say, “I think they were partially necessary,” in response to
the question of whether the hospitalizations were “at least partially necessary as a result of the
accident.” (Doc. 107, at 105.) Taken in context and with the whole of his testimony, however,
this lone remark does not render the entirety of Dr. O’Dowd’s testimony as to the four
hospitalizations confusing or inadmissible, particularly given his clearly stated opinion that Costa
“would not have had those hospitalizations over that time course” but for the Sam’s accident.
Defendant cannot obtain a new trial by taking one line of a witness’s testimony in isolation and
ignoring the inconvenient remainder.
Third, to the extent that Sam’s is complaining that the references to hospitalizations must
have confused the jury because plaintiff’s counsel never asked Dr. O’Dowd to elaborate on the
reasons for those hospitalizations, the argument is disingenuous. Had defendant been worried
about juror confusion concerning the reasons for the four hospitalizations, defense counsel had a
full and fair opportunity to cross-examine Dr. O’Dowd on this topic to elicit those details. It
chose not to do so. A party cannot claim unfair prejudice because of purported confusion
resulting from a witness’s failure to provide details that the party could have extracted from him
on cross-examination at trial, but chose not to do so. If defendant wished to alleviate this
confusion, its remedy was to ask the witness a question, not to sit idly by until an unfavorable
verdict was returned and then demand relief under Rule 59 based on that purported confusion.
Fourth, by defendant’s own admission, it did not object to this testimony on relevancy
grounds before or during the trial. (Doc. 109-1, at 30.) Although defendant explains that the

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relevancy objection did not come to fruition until plaintiff announced after Dr. O’Dowd’s
testimony was admitted that he was not seeking recovery for expenses related to these
hospitalizations,23 defendant could have requested a curative instruction at that time. It did not.
Principles of waiver discussed supra weigh heavily against granting post-trial relief on the
strength of a relevancy objection that defendant is interposing for the first time in his Motion for
New Trial.
Fifth, even if admission of this “four hospitalizations” testimony was erroneous,
defendant is making a mountain out of a molehill. This was an extremely minor evidentiary
point that consumed a tiny fraction of Dr. O’Dowd’s testimony. To the best of the Court’s
recollection, these hospitalizations were never again mentioned to the jury during the trial,
except by defendant in its closing argument. (Doc. 108, at 238.)24 A movant does not get a new
trial every time an evidentiary error is made on a minor point. See Jennings v. Thompson, 813 F.
Supp.2d 29, 32 (D.D.C. 2011) (“[T]he standard for granting a new trial is not whether minor
evidentiary errors were made.”) (citation omitted). Rather, “a new trial is warranted only where
the error has caused substantial prejudice to the affected party (or, stated somewhat differently,
affected the party’s ‘substantial rights’ or resulted in ‘substantial injustice’).” Peat, Inc. v.
Vanguard Research, Inc., 378 F.3d 1154, 1162 (11th Cir. 2004) (citations omitted); see also U.S.
Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1286 (11th Cir. 2001) (“An error on an evidentiary
ruling will result in the reversal of a jury’s verdict only if a party establishes a substantial
prejudicial effect or a manifest injustice.”). Offhand, nonspecific references in Dr. O’Dowd’s
testimony to hospitalizations post-dating Costa’s accident do not establish the sort of substantial
prejudice or manifest injustice that might warrant the remedy of a new trial.
23

In particular, plaintiff’s counsel announced shortly after Dr. O’Dowd’s video
deposition was played to the jury that “we do not intend to put on evidence of the amount of the
medical bills or ask the jury to award an amount to reimburse Ms. Costa for the medical liens. …
[A]ll the medical bills on my exhibit list I am not offering as evidence in the case in the
aftermath of Dr. O’Dowd’s deposition.” (Doc. 107, at 113.)
24

Ironically, even as defendant protests to the Court that the jury never should have
heard about Costa’s post-accident hospitalizations, it was defense counsel who raised them in
closing argument, explaining to the jury that Costa was hospitalized in August 2011 to have fluid
removed from his right knee, in support of defendant’s overall argument that Costa was a frail,
sickly man whose medical problems between March 2010 and March 2012 had nothing to do
with Sam’s dropping a television on him.

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E.

Testimony Concerning Billings.

As its fifth category of assignments of error, defendant protests that “[d]uring Dr.
O’Dowd’s testimony, the jury heard countless references to billing but never saw a single bill or
heard a single figure.” (Doc. 109-1, at 31.) Defendant contends that this evidence was so
prejudicial that it is entitled to a new trial.
Dr. O’Dowd’s testimony did include references to medical expenses, albeit a far cry from
the “countless references” to which defendant refers. In that testimony, plaintiff’s counsel asked
whether certain bills located in a file of medical records were from Dr. O’Dowd’s office, and Dr.
O’Dowd answered affirmatively. (Id. at 102.) That was it. Shortly after Dr. O’Dowd’s
testimony, plaintiff’s counsel announced (outside the jury’s presence) for the first time that he
was no longer seeking any recovery for medical bills in this case and that he would offer no
evidence of medical bills in the case. (Doc. 107, at 113.) After that revelation, the jury never
heard a word about the amount of those bills, or any testimony about the reasonableness or
unreasonableness of those bills, and never saw or received any exhibits containing, documenting,
or quantifying such expenses. Those medical bills were never mentioned in closing arguments,
except when defense counsel told the jury, “there is no claim in this case for medical expenses.
You are not here or even to consider the expenses that the Costas may have or may not have
incurred from the medical treatment that Mr. Costa received. That’s not what you are to
consider.” (Doc. 108, at 234.) The jury received no instructions about medical bills or expenses,
but was told that the compensatory damages claimed by plaintiff were solely for “Physical pain
and mental anguish and aggravation of pre-existing condition.” (Id. at 257.)
From these facts and circumstances, defendant argues that it is entitled to a new trial
because “the jury was given speculative and irrelevant testimony and allowed to award damages
for an abandoned element” and because “they were given evidence they did not need and did not
know what to do with.” (Doc. 109-1, at 31.) This is nowhere near the showing of manifest
injustice or substantial prejudice that might justify throwing out the jury’s verdict and starting
over. The testimony in question was nothing more than Dr. O’Dowd’s acknowledgment that his
office had billed Costa for medical services provided. Using common sense, the jury would have
known that anyway. The jury received no evidence and no information as to the amount,
contents or reasonableness of the bills. Plaintiff’s counsel never asked them to award medical
expenses as a component of damages. The jury charge said nothing about medical expenses.

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And defendant’s counsel hammered the point home during his closing argument by highlighting
that there was no claim for medical expenses in this case and that the jury was not to consider
any medical expenses in formulating a damages award. Given what transpired, the Court
perceives the likelihood of juror confusion on this issue to be exactly nil. Besides, if Sam’s were
worried about confusion, it could and should have requested a supplemental jury charge to
explicitly inform the jury that it could not award damages for medical expenses. Defense
counsel having chosen not to do so, Sam’s cannot now convert that failure to request a curative
instruction into a new trial, even if by some infinitesimally small chance the jury might have
been confused on this point.
F.

Remittitur.

Finally, in the alternative to its motions for judgment as a matter of law and for new trial,
Sam’s requests a remittitur of the jury’s $200,000 verdict against it. Defendant reasons that “the
verdict does not reflect that degree of injury. … Clearly it is excessive.” (Doc. 109-1, at 32.)
Defendant goes on to speculate as to all sorts of improper considerations that “obviously”
factored into the jury’s verdict, such as awarding damages for “aggravation causing death,”
awarding damages “for Mr. Costa’s overall demise,” and “speculatively awarding damages for
what it deemed to be the costs associated with the medical care.” (Id.)
The standard for remittitur is not whether the losing party can invent outlandish scenarios
that might have infected the jury’s decision-making process. That’s not how remittitur works.
Rather, the legal standard is whether the verdict actually awarded exceeds the amount established
by the evidence. See Gowski v. Peake, 682 F.3d 1299, 1310 n.10 (11th Cir. 2012) (“As a general
rule, a remittitur order reducing a jury’s award to the outer limit of the proof is the appropriate
remedy where the jury’s damage award exceeds the amount established by the evidence.”)
(citation omitted).25 “When the jury’s verdict is within the bounds of possible awards supported
by the evidence, its award should not be disturbed.” Carter v. DecisionOne Corp. Through C.T.
Corp. System, 122 F.3d 997, 1006 (11th Cir. 1997).
25

See generally Quality Foods, Inc. v. U.S. Fire Ins. Co., 715 F.2d 539, 542 & n.2
(11th Cir. 1983) (explaining that, in a diversity case, the determination of whether a jury verdict
is excessive is determined by reference to state substantive law, and that under Alabama law, “a
jury verdict will not be set aside unless it is found to be so excessive as to demonstrate bias,
passion, prejudice, corruption or other improper motive or cause”).

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Here’s what the evidence of damages showed in this case: Prior to the accident, Costa
suffered from various long-term medical problems, but lived an active, basically healthy life. He
and his wife regularly traveled together, including trips out of state and overseas (including a
lawn-bowling excursion to Florida just two months before the accident). (Doc. 107, at 38, 8081.) He walked a mile each day, three days per week, and also enjoyed swimming and lawn
bowling. (Id. at 38-41.) He was, by all accounts, “doing just fine.” (Id. at 40.) Then came the
Sam’s accident. Because of Sam’s negligence in causing the television to fall on his leg, Costa
sustained a large hematoma, endured excruciating pain, and received medical treatments
(including surgery and a lengthy hospitalization) over a period of months. (Id. at 57-63.) Costa
experienced pain and discomfort in his leg for “quite a long time” afterwards. (Id. at 63.) In
fact, his left leg remained swollen and discolored from the Sam’s accident some six months later.
(Id. at 70.) Costa’s lifestyle changed markedly for the worse after the accident, as he was no
longer as active and “there was hardly anything” he and his wife could do. (Id. at 71.) His
quality of life “went downhill” and “steadily declined” for the next two years. (Id. at 72-73.)
Medically, his treating physician opined that Costa “developed acute renal failure associated
with” the hematoma he received in the Sam’s accident (id. at 90), that “[h]is functional level
went down substantially” after the Sam’s accident and he never “got back to the same level he
was at before his accident” (id. at 90-91). The physician further testified, “I’m completely
confident that this caused him to be ill, or more ill than he was prior to the injury. And I’m
confident that my impression is that he never got back to his previous functional level.” (Id. at
92.)
In sum, what the evidence showed is that Costa was a physically active, stable retiree
who exercised and traveled frequently before a Sam’s employee knocked a television onto him;
that Costa received a very painful leg injury requiring extensive medical treatment and a lengthy
hospitalization; that Costa’s leg was still injured some six months after the fact; that the Sam’s
accident reduced Costa’s overall level of functioning, accelerated his deterioration, and caused
him to be “knocked down to a lower spot” from which he never recovered; and that his quality of
life deteriorated markedly during the two years after the accident, as a result of the accident, until
the time of his death.
On this evidence, the $200,000 award of compensatory damages awarded by the jury for
physical pain, mental anguish, and aggravation of a pre-existing condition was well within the

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bounds of possible awards supported by such evidence. Given the choice, the Court strongly
suspects that most reasonable people would gladly surrender $200,000 in compensation to forego
the sort of pain and suffering, mental anguish, and exacerbated medical conditions that Costa
endured as a direct result of Sam’s negligence. Far from being excessive, the jury’s verdict was
well below the maximum possible award that the evidence could have permissibly supported.
The Motion for Remittitur is denied.
IV.

Conclusion.
For all of the foregoing reasons, defendant’s Motion for Judgment as a Matter of Law or

in the Alternative, Motion for New Trial or in the Alternative, Motion for Remittitur (doc. 109)
is denied in its entirety.
DONE and ORDERED this 31st day of October, 2012.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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