922 F.3d 1211
11th Cir.2019Background
- On April 27, 2015, Krispy Kreme employee Patrick Pressdee rear-ended Galawezh Showan; employer’s internal reports shortly after the crash acknowledged Pressdee was at fault and assigned Showan 0% fault.
- Showan suffered cervical whiplash, wrist and facial injuries and later had a lumbar discectomy; the surgeon billed unusually large amounts for surgeon and facility fees.
- Showan sued in Georgia state court; defendants removed to federal court under diversity jurisdiction. Defendants initially pleaded comparative negligence and other defenses, then sought to amend to concede liability shortly before trial.
- A jury returned a $330,000 verdict for Showan. Post-trial issues arose about jury instructions, admission of expert testimony on medical rates, exclusion of certain surgical records, limits on a unit-of-time damages argument, judgment as a matter of law on future lost wages, and entitlement to a statutory Georgia hearing on frivolous defenses and attorney’s fees (O.C.G.A. § 9-11-68(e)).
- The Eleventh Circuit affirmed most evidentiary rulings but held the district court erred by refusing to submit Showan’s statutorily prescribed request for a bifurcated, factfinder hearing on whether defendants asserted frivolous defenses under Georgia law; it vacated and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. References to settlement in defendants’ opening and refusal to give a curative instruction | Defendants improperly suggested plaintiff was responsible for failure to settle; a curative instruction was needed | Opening was accurate at the time and not plainly injurious; no Rule 408 violation | No abuse of discretion; no curative instruction required; ruling affirmed |
| 2. Expert testimony on prevailing/local medical rates (vs. amounts billed) | Testimony violated Georgia collateral-source rule and Rule 403 by implying insurers would not pay billed amounts | Experts legitimately testified about market reasonableness of charges, not insurer write-offs | Admission not an abuse of discretion; testimony allowed |
| 3. Exclusion of complete surgical-center records under Rule 106 (rule of completeness) | Partial record introduced by defendants was misleading; plaintiff should be allowed to introduce the full record | Records were not timely designated; district court excluded them | Court declines to decide now because remand makes pretrial designations anew; left for retrial |
| 4. Court admonition forbidding per-hour (unit-of-time) damages argument | Georgia law permits per-diem/unit-of-time arguments; admonition was prejudicial | Trial court has discretion to limit or prohibit unit-of-time arguments as federal trial procedure | Trial court misstated law in saying such arguments are categorically prohibited; should exercise discretion on retrial (error requires vacatur of that ruling) |
| 5. JMOL on future lost wages | Showan: evidence of permanent impairment and changed duties supported future lost wages | Defendants: evidence of future lost wages speculative; plaintiff still works full time and did not quantify loss | JMOL affirmed: no legally sufficient evidence of diminished future earning capacity or quantification under Georgia law |
| 6. Denial of statutory O.C.G.A. § 9-11-68(e) bifurcated jury hearing on frivolous defenses and fees | Plaintiff: statute entitles prevailing party to move at verdict for a jury/finder-of-fact hearing on frivolity and damages; federal court must apply it in diversity | Defendants: Rule 11 of the Federal Rules of Civil Procedure governs frivolity/sanctions and vests determination in the judge | Held: § 9-11-68(e) is a substantive Georgia law applicable in diversity; it does not conflict with Rule 11; district court erred by refusing the mandatory, bifurcated factfinder hearing — new trial required |
Key Cases Cited
- Proctor v. Fluor Enters., Inc., 494 F.3d 1337 (11th Cir. 2007) (standard for reviewing district court evidentiary rulings)
- Peterson v. Willie, 81 F.3d 1033 (11th Cir. 1996) (oral argument error requires plainly unwarranted and clearly injurious statements for reversal)
- King v. Gulf Oil Co., 581 F.2d 1184 (5th Cir. 1978) (harmless error and prejudice principles in evidentiary rulings)
- Baron Tube Co. v. Transp. Ins. Co., 365 F.2d 858 (5th Cir. 1966) (unit-of-time/per-diem damages arguments permissible; trial court discretion and safeguards required)
- Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010) (framework for whether a Federal Rule preempts state law in federal diversity cases)
- Walker v. Armco Steel Corp., 446 U.S. 740 (1980) (when a federal rule that "answers the question" governs over state law)
- Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th Cir. 2014) (analysis of conflict between Georgia statutory filing requirements and Federal Rules)
- Olariu v. Marrero, 549 S.E.2d 121 (Ga. Ct. App. 2001) (Georgia law requires medical expense awards to be "reasonable and necessary")