Kaba v. Carnival Corporaiton

Filing 134

Defendant's MOTION to Amend/Correct 132 Findings of Fact & Conclusions of Law, 133 Judgment, Defendant's MOTION to Alter Judgment and Renewed Motion for Entry of Judgment by Carnival Corporaiton. Responses due by 6/9/2011 (Scott, Thomas)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 10-21627-CIV-UNGARO-TORRES
DENISE KABA,
Plaintiff,
v.
CARNIVAL CORPORATION,
Defendant,
___________________________/
DEFENDANT, CARNIVAL CORPORATION’S RENEWED MOTION
FOR ENTRY OF JUDGMENT AS A MATTER OF LAW,
MOTION TO AMEND FINDINGS OF FACT AND CONCLUSIONS OF LAW,
MOTION TO AMEND FINAL JUDGMENT, AND ALTERNATIVE MOTION FOR NEW
TRIAL ON DAMAGES ISSUES
Defendant, CARNIVAL CORPORATION (hereinafter “Carnival”), by and through
undersigned counsel, files this Renewed Motion for Entry of Judgment as a Matter of
Law, Motion to Amend Findings of Fact and Conclusions of Law, Motion to Amend Final
Judgment, and Alternative Motion for New Trial on Damages Issues, and states as
follows:
1.

Plaintiff, Denise Kaba’s one-count Complaint was for negligence, alleging

that while she was a passenger on Carnival’s cruise ship the Carnival Pride she slipped
and fell on the Lido Deck (near the pool). Mrs. Kaba alleged that as a result of her fall
she seriously injured her right knee.
2.

Defendant did not dispute liability.

COLE, SCOTT & KISSANE, P.A.
DADELAND CENTRE II - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - [phone] - [phone] FAX

Case No. 10-21627-CIV-UNGARO
3.

The District Court conducted a two-day trial of this matter May 9, 2011,

and May 10, 2011.
4.

On May 13, 2011, the Court made its Findings of Fact and Conclusions of

Law (DE #132) and entered Final Judgment in favor of the Plaintiff (DE #133).
5.

At the close of evidence, Carnival moved for judgment as a matter of law

on Plaintiff’s claims for future loss of earning capacity.1
6.

The Court subsequently denied Carnival’s motion

7.

Additionally, the Court awarded Plaintiff $210,000 for past pain and

suffering and $1,960,000 for future pain and suffering.
8.

As discussed more fully below, Carnival respectfully suggests that the

Court’s award for future pain and suffering is excessive and not supported by the record
evidence presented at trial or otherwise before the Court.
9.

Carnival hereby renews that motion for entry of judgment as a matter of

law on Plaintiff’s claims concerning any loss of future earning capacity and/or wages,
and moves this Court to alter and amend its Findings of Fact and Conclusions of Law
(DE #132) and Final Judgment (DE #133) accordingly, and to alter and amend them in
the additional ways suggested below.
MEMORANDUM OF LAW
Federal Rule of Civil Procedure 50 allows for the renewal of a motion for a
judgment as a matter of law, after trial. The Rule provides, in relevant part, that:
No later than 28 days after the entry of judgment--or if the
motion addresses a jury issue not decided by a verdict, no
later than 28 days after the jury was discharged--the movant
may file a renewed motion for judgment as a matter of law
and may include an alternative or joint request for a new trial
1

Plaintiff voluntarily dismissed any claims concerning past loss of earning capacity / wages.

-2COLE, SCOTT & KISSANE, P.A.

DADELAND CENTRE II - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - [phone] - [phone] FAX

Case No. 10-21627-CIV-UNGARO
under Rule 59. In ruling on the renewed motion, the court
may:
(1) allow judgment on the verdict, if the jury returned a
verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Meanwhile, Rule 52 allows a court to amend its findings or make additional
findings, and to amend the judgment accordingly. It states, in pertinent part:
(b) Amended or Additional Findings. On a party’s motion
filed no later than 28 days after the entry of judgment, the
court may amend its findings--or make additional findings-and may amend the judgment accordingly. The motion may
accompany a motion for a new trial under Rule 59.
Finally, Rule 59 (as indicated in Rules 50 and 52) allows for a motion for new
trial, and also allows for the filing of a motion to alter or amend a judgment:
(a) In General.
(1) Grounds for New Trial. The court may, on motion,
grant a new trial on all or some of the issues--and to any
party--as follows:
(A) after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court;
or
(B) after a nonjury trial, for any reason for which a rehearing
has heretofore been granted in a suit in equity in federal
court.
(2) Further Action After a Nonjury Trial. After a nonjury
trial, the court may, on motion for a new trial, open the
judgment if one has been entered, take additional testimony,
amend findings of fact and conclusions of law or make new
ones, and direct the entry of a new judgment.
(b) Time to File a Motion for a New Trial. A motion for a
new trial must be filed no later than 28 days after the entry of
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DADELAND CENTRE II - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - [phone] - [phone] FAX

Case No. 10-21627-CIV-UNGARO
judgment.
*****
(e) Motion to Alter or Amend a Judgment. A motion to
alter or amend a judgment must be filed no later than 28
days after the entry of the judgment.
Carnival hereby moves for the entry of a judgment as a matter of law in its favor
on Plaintiff’s economic claims, and simultaneously moves for an order amending the
Court’s Findings of Fact and Conclusions of Law (DE #132) and amending the Final
Judgment (DE #133) to reflect the entry of judgment in Carnival’s favor as to Plaintiff’s
claims for future loss earning capacity / lost wages, and to reflect new findings as
suggested below.
Alternatively, Carnival moves for a new trial on the issue of damages, as the
damages award was excessive, or moves for a remittitur of the damages award.
Plaintiff’s Claim for Future Loss of Earning Capacity
Carnival moved at trial for judgment as a matter of law on Plaintiff’s claims for
loss of future earning capacity, arguing that her claims were too speculative and were
unsupported by her own testimony or that of any witness at trial – fact, lay, or expert.
Carnival hereby renews that motion and in support thereof states as follows:
Plaintiff’s claim for loss of earning capacity is completely speculative and
unsupported by any competent evidence. According to her own expert witness Gerri
Pennachio, the testimony of her husband, John Kaba, and her own testimony, Mrs.
Kaba had not worked in a quarter of a century, since she left the only job she had ever
had (and which she held for four years), and had no definite plans to return to any
specific line of work either at the time of her accident, or the time of trial.

-4COLE, SCOTT & KISSANE, P.A.

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Case No. 10-21627-CIV-UNGARO
Mrs. Kaba testified, unequivocally, that since 1985 she had not: (1) applied for a
single job; (2) taken any vocational training courses or classes2; (3) made any attempts
to find or identify any jobs; and (4) had not spoken with anyone other than her husband,
in very general terms, about one day possibly returning to work.
Though Plaintiff’s expert witness speculated that the Plaintiff might be suited for,
and might find a job as, some type of administrative clerk or assistant, there was no
evidence that Mrs. Kaba had either the training or experience requisite for these
positions, and no evidence that the jobs were numerous or easy to come by in her
geographical area.
Plaintiff failed to present any evidence to allow the factfinder to reasonably
calculate lost earning capacity. Cf. Eagle Atlantic Corp. v. Maglio, 704 So. 2d 1104,
1105 (Fla. 4th DCA 1997). Moreover, as noted, there no was evidence concerning the
employment market for a person of her age and educational background. Id. Thus,
there is no basis for an award of future damages. Id.
The impairment of loss of earning capacity must be shown with reasonable
certainty, and there must be evidence that will allow the factfinder to arrive at a
pecuniary value for the loss. Allstate Ins. Co. v. Shilling, 374 So. 2d 611, 612- 13 (Fla.
4th DCA 1979).
“Once sufficient evidence is presented, the measure of damages is the loss of
capacity to earn by virtue of any impairment found by the [factfinder] and the [factfinder]
must base its decision on all relevant factors including the plaintiff’s age, health, habits,
occupation, surroundings, and earnings before and after the injury.” W.R. Grace & Co.-

2

The lone exception being a real estate agent class she took several years prior to the accident and
which she did not pass or retake after failing.

-5COLE, SCOTT & KISSANE, P.A.

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Case No. 10-21627-CIV-UNGARO
Conn. v. Pike, 661 So. 2d 1301, 1302 (Fla. 3d DCA 1995). “Each of these steps is
critical in the . . . determination of an award for loss of future earning capacity.” Id.
Of course, Plaintiff had no earnings either before or after her injury, and that
“critical” step in the determination of her claim for loss of earning capacity thus cannot
be considered.
A damage award that is based on conjecture that a plaintiff would have made
more money in the future, when evidence in the record fails to establish with any degree
of precision the actual monetary gains, is not reasonably supported by evidence in the
record. Deakle v. John E. Graham & Sons, 756 F.2d 821, 829 n.4 (11th Cir. 1985).
Furthermore, this Court is not required to accept that, e.g., Mrs. Kaba would have
worked full-time in the future, or for twelve months each year. Cf. Hassan v. United
States Postal Serv., 842 F.2d 260, 266 (11th Cir. 1988).
What was done in this case by Ms. Pennachio, Plaintiff’s expert, is similar to what
was done by the plaintiff’s expert in Subaqueous Servs., Inc. v. Corbin, 25 So. 3d 1260
(Fla. 1st DCA 2010), in which the expert “surveyed a broad range of vocations and
attendant income statistics” and attempted to apply it to the plaintiff’s claim for loss of
earning capacity. Subaqueous Servs. at 1267. The appellate court took issue with this,
stating:
Fully understanding that Florida law emphasizes the
claimant’s capacity to earn, we are not persuaded [the
expert] established [plaintiff’s] loss of future earning
capability with sufficient reckoning. [Expert] based the
earning capacity calculation almost entirely on the
aforementioned amalgam of diverse occupations, casting
the $25,000 per year estimate adrift from a historical
reality spanning the better part of 40 years.
Id. at 1268.
-6COLE, SCOTT & KISSANE, P.A.

DADELAND CENTRE II - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - [phone] - [phone] FAX

Case No. 10-21627-CIV-UNGARO
The court in Subaqueous Servs. found that the expert’s testimony was not
imbued with “the necessary degree of certainty.” Id. That is equally the case here,
where Ms. Pennachio’s projections were cast adrift from the historical reality of Mrs.
Kaba’s life and the better part of three decades in which Mrs. Kaba has not worked,
applied for a job, or made any attempts to gain job training. The expert’s testimony in
the present case was purely speculative, it cannot support a claim for loss of earning
capacity, and this Court owes it no deference.
Plaintiff’s claim for loss of future earning capacity / wages was not reasonably
supported by evidence in the record, and was based on mere conjecture. Deakle v.
John E. Graham & Sons, 756 F.2d 821, 829 n.4 (11th Cir. 1985). Thus, the award for
loss of future earning capacity must be reversed and judgment entered on Carnival’s
behalf on that claim. Plaintiff should not receive any award at all for her speculative
future loss of earning capacity. The amount should be remitted to zero, and the Court’s
Findings amended, and the Final Judgment altered and amended to reflect that fact.
Plaintiff’s Claim for Future Pain and Suffering
The award to Plaintiff for her future pain and suffering, $1,960,000.00 (DE #132,
¶ 20.b., ¶ 29) is unsupported by the evidence and excessive, and a new finding in this
regard must be entered and the judgment amended accordingly.
“A verdict must be set aside if it is so inordinately large as obviously to exceed
the maximum limit of a reasonable range within which the trier of fact may properly
operate.” Johnson v. U.S., 780 F.2d 902, 908 (11th Cir. 1986).
Here, the evidence was that Plaintiff’s mental and physical condition has
improved dramatically since her September, 2010 surgery and recovery immediately

-7COLE, SCOTT & KISSANE, P.A.

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Case No. 10-21627-CIV-UNGARO
following the same. The record is clear that Plaintiff’s darkest times are behind her and,
although she continues to have certain limitations, she has been able to get on with her
life and enjoy a greater sense of normality since recovering from her September, 2010
surgery than for the 16 month period following her August, 2009 accident.
Mrs. Kaba testified at trial that she now enjoys a range of motion between 90-95
degrees to her right knee, whereas prior to the September, 2010 surgery, she could not
bend her knee at all. Mrs. Kaba can bathe herself, cook the majority of meals for her
family, clean her home, drive her car, walk without the use of any devices other than her
knee brace, and go up and down the stairs in her three-story home – Mrs. Kaba was
unable to do any of these things prior to her September, 2010 surgery.
Mrs. Kaba has not had any modifications made to her home – no elevators, lifts,
ramps, widening of doors, removal of walls, modifications to her bathroom, etc. Mrs.
Kaba has not had to hire a single individual to drive, cook, or clean her house or care for
her children. She has not made any modifications to her vehicles or applied for or been
given a handicap sticker. In fact, Mrs. Kaba’s vocational rehabilitation expert, Gerri
Pennachio, testified that she had removed her prior recommendation that her vehicle be
modified based upon her recovery. It is also noted that Ms. Pennachio admitted that
there was no need or recommendation for any attendant care in her report.
At trial, when confronted with Mrs. Kaba recovery following the September, 2010
surgery, Ms. Pennachio also deleted her recommendations for prescription pain killers
(Percocet) and the left foot accelerator and acknowledged that KABA had absolutely no
medical procedures scheduled or expected, including the sympathetic nerve blocks
included in her life care plan.

-8COLE, SCOTT & KISSANE, P.A.

DADELAND CENTRE II - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - [phone] - [phone] FAX

Case No. 10-21627-CIV-UNGARO
An award of nearly two million dollars is simply excessive, particularly in light of
the Court’s $210,000 past pain and suffering award. The award of $1,960,000.00 is
inordinately large, and must be set aside. The amount should be remitted to something
closer to the range suggested by Carnival at trial and evidenced by the jury verdicts
submitted to the Court by Carnival at the close of evidence; alternatively, a new trial
should be allowed on the issue of Plaintiff’s claim for future pain and suffering.3
Plaintiff’s Claim for Future Medical Expenses
The Court awarded Plaintiff future medical expenses in the amount of
$373,564.00. (DE #132, ¶ 17.b., ¶ 28). This number represents the precise mid-point
between the evidence Carnival put on as to the lowest number for Plaintiff’s future
medical expenses ($224,261.00), and Plaintiff’s suggested lowest award for future
medical expenses ($522,867.00). It thus appears possible that the amount may have
been a compromise amount or award.
Generally, a compromise verdict is invalid, and returned an invalid compromise
verdict, Alabama Great Southern R. Co. v. Allied Chem. Corp., 501 F.2d 94, 97 (11th
Cir. 1974), and cannot be allowed to stand. Davison v. Monessen Southwestern Ry.
Co., 144 F. Supp. 599, 600 (D.C. Pa. 1956). The $373,564.00 should not be allowed to
stand, because it is unsupported by the evidence, and appears to be an amount that
was arrived at by compromising the two disparate amounts suggested by the parties.
The Court should enter an Order amending its Findings, and altering and
amending the Final Judgment, and should find that Plaintiff’s future medical expenses
3

“[T]he district court has authority under Rule 59(a) of the Federal Rules of Civil
Procedure to order a partial new trial.” Burger King Corp. v. Mason, 710 F.2d 1480,
1489 (11th Cir. 1983).
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DADELAND CENTRE II - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - [phone] - [phone] FAX

Case No. 10-21627-CIV-UNGARO
are no more than $224,261.00. There was absolutely no evidence presented at trial
that Plaintiff will ever need or undergo the expensive sympathetic nerve block
procedures her vocational rehabilitation expert, Gerri Pennachio, included in the amount
requested by Plaintiff. On the contrary, the record is uncontroverted that Mrs. Kaba (1)
has not had a sympathetic nerve block or other such procedure since her September,
2010 surgery by Dr. Wickiewicz; (2) no doctor or other medical provider has
recommended, scheduled, or suggested that Mrs. Kaba will need such a block or
procedure following her September, 2010 surgery; and (3) Mrs. Kaba does not have any
such block or procedure scheduled or contemplated at any point in her future.
Accordingly, the court should remit the award to the amount of $224,261.00, which is an
amount that does not include the cost of sympathetic nerve block procedures, since
there is absolutely no evidence that she will / may undergo any in the future.
Plaintiff’s Claims for Prejudgment Interest
“In cases arising under federal law, the award of prejudgment interest is a
discretionary matter for the district court.” In re Air Crash on December 20, 1995, Near
Cali, Colombia, No. 96-MDL-1125, 1998 WL 1770591, at * 4 (S.D. Fla. Feb. 25, 1998).
Even in admiralty cases, “[t]he decision of whether to award pre-judgment interest is left
to the trial court's discretion,” and is thus not mandatory. See Miller Indus. v. Caterpillar
Tractor Co., 733 F.2d 813, 822 (11th Cir. 1984). “The Court must remain mindful of the
fact that the purpose of awarding prejudgment interest is compensatory.” Allstate Ins.
Co. v. Palterovich, 653 F. Supp. 2d 1306, 1327 (S.D. Fla. 2009) (citing Self v. Great
Lakes Dredge & Dock Co., 832 F.2d 1540, 1550 (11th Cir.1987) and Armco Chile
Prodein, S.A. v. M/V Norlandia, 880 F. Supp. 781, 797 (M.D.Fla.1995)).

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Case No. 10-21627-CIV-UNGARO
Here, there is nothing to compensate Plaintiff for on her claims for future medical
expenses—many if not most of which may or may not ever be incurred—or on her
claims for loss of future earning capacity, which were unsupported and ultimately
unproven. Plaintiff should not be awarded prejudgment interest on amounts she has
not already expended, may never expend, and/or to which she is not legally entitled.
This Court is not bound to award Plaintiff prejudgment interest on all her claims and, in
fact, should not.4
Carnival is mindful of the Court’s position that prejudgment interest is available
for past pain and suffering. However, the prejudgment interest should not apply to an
award for future damages – either economic or pain and suffering. Harnesk v. Carnival
Cruise Lines, Inc., No. 87-2328-Civ-Davis, 1991 WL 329584, at *6 (S.D. Fla. Dec. 27,
1991) (“Prejudgment interest shall only be applied to Plaintiff’s award for medical
expenses and past pain and suffering. However, prejudgment interest shall not be
applied to an award for future pain and suffering.” emph. added).
Moreover, Florida law only provides for prejudgment interest on past damages –
i.e., those which Plaintiff actually incurred after the date of loss, but before judgment.
Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla. 1985).5

4

CARNIVAL respectfully reminds the Court that CARNIVAL stipulated to judgment as to the Plaintiff’s
claim for prejudgment interest on her past medical expenses, as well as the past medical expenses
themselves.
5
In her Complaint (DE #1, 5/19/10) KABA invokes not only the maritime statute (28 U.S.C. § 1333) as a
basis for jurisdiction, but also the diversity statute, 28 U.S.C. § 1332. Accordingly, Florida law applies to
this diversity action. See, e.g., Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine
Ass’n., 117 F.3d 1328, 1336 n.3 (11th Cir. 1997) (“The parties do not dispute that Florida law applies to
this diversity action.”) Under Florida law, prejudgment interest is not available for past non-pecuniary
claims for pain and suffering. See Zorn v. Britton, 162 So. 879, 881 (Fla. 1935) (“We have never
recognized an allowance of interest on unliquidated damages for personal injuries, and the general rule
5
seems against such allowance in the absence of statute providing for it.”). “Historically, plaintiffs in
personal injury cases have not been entitled to prejudgment interest.” Amerace Corp. v. Stallings, 823
So. 2d 110, 112 (Fla. 2002) (citing Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla.
1985) (“[w]hen a verdict liquidates damages on a plaintiff’s out-of-pocket, pecuniary losses, plaintiff is

- 11 COLE, SCOTT & KISSANE, P.A.

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Case No. 10-21627-CIV-UNGARO
Thus, in accordance with maritime law together with Florida law (which applies to
this diversity action), any prejudgment interest award must be limited to her claims for
past medical bills she actually paid, out-of-pocket and, possibly, her claims for past
pain and suffering.
If the Court awards any prejudgment interest at all, it should limit the interest to
KABA’S liquated claims, and should not allow it on her future claims. See Harnesk v.
Carnival Cruise Lines, Inc., supra.
WHEREFORE, Defendant, CARNIVAL CORPORATION, prays this Honorable
Court for entry of an Order:
i.

Granting a judgment to CARNIVAL as a matter of law on Plaintiff’s
claims and, in particular, her economic claims;

ii.

Setting aside the Court’s Findings of Fact and Conclusions of Law
(DE #132) and substituting them with findings in keeping with this
Motion;

iii.

Altering and amending the Final Judgment (DE #133);

iv.

Granting a new trial on the excessive damages award or allowing a
remittitur of the amount; and

v.

Granting all such other and further relief as this Court deems just
and equitable.

entitled, as a matter of law, to prejudgment interest at the statutory rate from the date of that loss”)
(emphasis supplied).

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Case No. 10-21627-CIV-UNGARO
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that the foregoing was electronically filed this 23rd day of
May, 2011 using the Court’s CM/ECF filing system, which will send electronic notice of
the same on all interested persons listed in the attached Service List.
COLE, SCOTT & KISSANE, P.A.
Attorney for Defendant
Dadeland Centre II
9150 South Dadeland Boulevard
Suite 1400
Miami, FL 33156
Telephone: [phone]
Facsimile: [phone]

BY:

___s/Thomas E. Scott_
THOMAS E. SCOTT ,
FBN: 149100
E-mail: [e-mail]
ARMANDO P. RUBIO
FBN: 478539
E-mail: [e-mail]

L:\4301-0019-00\PLEADINGS\Post-Judgment Motion Memo of Law-APR changes.doc

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Case No. 10-21627-CIV-UNGARO
SERVICE LIST
CASE NO. 10-CV-21627-UNGARO
John H. Hickey, Esq.
David C. Appleby, Esq.
HICKEY LAW FIRM, P.A.
1401 Brickell Avenue
Miami, FL 33131-3504
[e-mail]
[e-mail]
Tel: [phone]
Fax: [phone]
Counsel for Plaintiff

J. Michael Magee, Esq.
CARNIVAL CRUISE LINES
3655 NW 87th Avenue
Miami, FL 33178
[e-mail]
Tel: [phone] x 18026
Fax: [phone]
Co-Counsel for Defendant

Henry Salas, Esq.
COLE SCOTT & KISSANE, PA
Dadeland Centre II, Suite 1400
9150 South Dadeland Boulevard
Miami, FL 33156
Miami, FL 33156
[e-mail]
Tel: [phone]
Fax: [phone]

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