[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 26, 2008
THOMAS K. KAHN
No. 07-11294
CLERK
________________________
D. C. Docket No. 04-00023-CV-JEC-3
WILLIAM DAVID MORRISON,
KIM L. MORRISON,
Plaintiffs-Appellants,
versus
BOB B. MANN, JR., M.D.,
LISA KAY DOUTHITT PARSONS, R.N.,
PAPP CLINIC, P.C.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 26, 2008)
Before BIRCH and FAY, Circuit Judges, and RODGERS *, District Judge.
PER CURIAM:
Plaintiff-appellants William David Morrison (“Dave”) and Kim Morrison
(“Kim) (jointly, the “Morrisons”) appeal the district court’s judgment entered
following a jury verdict for the Morrisons in their medical malpractice action. The
Morrisons also appeal numerous evidentiary rulings and the district court’s orders
granting partial summary judgment to defendant-appellee Lisa Kay Douthitt
Parsons, R.N. (“Parsons”) on the Morrisons’s claim for punitive damages,
directing a verdict for defendants-appellees Bob B. Mann, Jr., M.D. (“Mann”) and
PAPP Clinic, P.C., (the “Clinic”) on the Morrisons’s claims of breach of contract
and for related attorney’s fees, and denying the Morrisons’s requests for sanctions.1
We DISMISS the Morrisons’s appeal of the jury verdict, and AFFIRM the district
court’s underlying rulings.
I. BACKGROUND
Dave was injured during an examination at the Clinic which was conducted
by Parsons, under the direction of Mann. During the examination, Parsons
*
Honorable Margaret C. Rodgers, United States District Judge for the Northern District
of Florida, sitting by designation.
1
Although the Morrisons’ notice of appeal indicated that they appeal “each and every”
order entered by the district court in their case, our review is limited to those orders addressed in
the Morrisons’ briefs. R13-207.
2
administered an acid, which had a consistently higher concentration than the acid
which should have been used, and Dave received first- and second-degree burns.
Dave was treated for his condition over the next few weeks but continued to have
problems.
The Morrisons subsequently filed a complaint, alleging medical malpractice
and ordinary negligence against Mann, Parsons, and the Clinic, and breach of an
implied contract against Mann and the Clinic. In the complaint, the Morrisons
requested actual damages and “attorney fees, costs of litigation and punitive
damages.” R1-1 at 39.
Mann, Parsons, and the Clinic moved for partial summary judgment on the
issue of punitive damages. The district court denied the motion as to Mann and the
Clinic, but granted it as to Parsons. The district court found that Parsons’s
culpability “at most, amount[ed] to negligence” and that there was no evidence that
her behavior exhibited a conscious indifference to the consequences of her actions
or a malicious, wanton, or willful manner. R7-91 at 8.
Mann and the Clinic conceded liability during their opening trial statements
and defended only on damages. R17 at 138-39. During the trial, Mann moved for
a directed verdict on the implied contract claim and the claim for attorney’s fees
under O.C.G.A. § 13-6-11. The district court granted the motion, noting that the
3
implied contract claim, if viable, was subsumed into the medical malpractice claim
and that the Morrisons had failed to properly plead or allege a claim for attorney’s
fees under § 13-6-11. R19 at 950-51, 953.
The jury returned a verdict of $70,000 for the Morrisons. R21 at 148. It
found that Mann and the Clinic were liable for medical malpractice; that Parsons
was liable for ordinary negligence, but not liable for medical malpractice; and that
neither Mann nor the Clinic acted with “entire want of care” necessary for punitive
damages. Id.
II. DISCUSSION
The Morrisons argue that the awarded damages were inadequate and that the
district court erred in deciding numerous evidentiary rulings, granting partial
summary judgment to Parsons on their claim for punitive damages, directing a
verdict on the breach of contract claim and related attorney’s fees, and denying
their motions for sanctions.2
2
The Morrisons argue that the district court erred in granting a motion for directed
verdict on their motion for attorney’s fees under O.C.G.A. § 9-11-68. Under § 9-11-68, a
prevailing party may request, at the time when a verdict is rendered, that the jury determine
whether the opposing party presented a frivolous defense. § 9-11-68(e). If a frivolous defense
is found, attorney’s fees may be awarded. § 9-11-68(e)(2).
The Morrisons’s complaint was filed in February 2004. Section 9-11-68 became
effective on 16 February 2005. Because § 9-11-68 imposes additional duties and obligations
upon a party to pay attorney’s fees, it is a substantive law which is not to be applied
retroactively. Fowler Prop., Inc. v. Dowland, 646 S.E. 2d 197, 200 (Ga. 2007). The district
court did not err in granting a directed verdict on this issue.
4
A. Jurisdiction
Generally, a prevailing party lacks standing to appeal because a favorable
judgment is assumed to have caused that party no harm. Agripost, Inc. v. Miami-
Dade County, ex rel Manager and Bd. of County Comm’rs, 195 F.3d 1225, 1230
(11th Cir. 1999) (citing Deposit Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445
U.S. 326, 333, 100 S. Ct. 1166, 1171 (1979)). An appeal is not precluded if the
prevailing party may be prejudiced by the collateral effect of the judgment or on
issues not addressed by that judgment and in which the prevailing party retains a
personal stake. Id.; Deposit Guar. Nat’l Bank, 445 U.S. at 333, 336, 100 S. Ct. at
1171, 1173. To preserve a jury finding on damages for appellate review, the trial
court must have been given an opportunity to exercise its discretion on a motion
for new trial. Electro Servs., Inc. v. Exide Corp., 847 F.2d 1524, 1530 (11th Cir.
1988) (citing Baker v. Dillon, 389 F.2d 57, 58 (5th Cir. 1968)). Absent a motion
for new trial, we have no basis for appellate review, as a party may not seek “a new
trial for damages for the first time on appeal.” 3 Id.; United States E.E.O.C. v.
Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1251 (11th Cir. 1997).
The Morrisons did not file any post-judgment motions to alter or amend the
3
We will, however, review a damages award if the appellant clearly presented the issue
of excessiveness of that award to the trial court, whether or not the “magic words ‘new trial’”
were used. Carlton v. H.C. Price Co., 640 F.2d 573, 577 (5th Cir. 1981).
5
judgment, for a new trial, for judgment as a matter of law, or for relief from the
judgment or otherwise provide the district court with an opportunity to exercise its
discretion regarding the awarded damages. They lack standing to appeal this
award, and we DISMISS that portion of their appeal.
B. Evidentiary rulings
The Morrisons maintain that the district court erred by excluding the
testimony of their expert, Dr. Gerardo Lionel Sotomayor (“Sotomayor”), and by
permitting the testimony of Mann’s expert witness, Dr. Carney (“Carney”).
Although the Morrisons had initially identified Sotomayor as a fact witness, they
subsequently identified him as an expert witness in their response to the motion for
partial summary judgment on punitive damages filed by Mann and the Clinic.
They argue that their untimely submission of Sotomayor’s affidavit, which
addressed the standard of care, was necessary to rebut the affidavit of Carney,
whom Mann and the Clinic first identified in the summary judgment motion.4 The
district court granted the motion to strike because the Morrisons’s justification for
their failure to timely identify Sotomayor was without factual support. The district
court noted that Carney’s affidavit addressed only the issue of actual damages,
which was not at issue in the summary judgment motion. R7-91 at 3; R13-194 at
4
The Morrisons had previously identified Howard Rottenberg, M.D., as an expert
regarding the standard of care. R1-5 at 7-8, Attachment A at 11.
6
6. The district court also granted Mann’s motion to exclude Sotomayor’s
testimony at trial, finding that the Morrisons failure to timely disclose Sotomayor
as an expert was plainly “harmful” and not substantially justified. R13-194 at 10
n.5, 11-13.
During the trial, Carney testified as to the symptoms of a disease, suffered
by Dave, which could cause similar problems to those which Dave suffered as a
result of his injuries.5 R20 at 1010-21. After Carney had testified, Morrisons’s
attorney moved to strike his testimony about the disease and explained that the
objection was not raised earlier because he did not want to emphasize the disease
before the jury. Id. at 1051-52. The district court denied the motion, noting that
Carney’s testimony properly addressed the causation of pain. Id. at 1051-52, 1055-
56. The Morrisons’s subsequently moved for a mistrial, based on Carney’s
testimony, or for a curative instruction. R12-182. The district court denied the
mistrial, but asked for discussion on a curative instruction. R21 at 9. The
Morrisons’s attorney responded “I think the curative instruction would deal with
[our] request . . . that the testimony relating to [Dave] having [the disease] is not a
matter for your consideration and . . . that testimony of the expert witness about
that should not be considered.” Id. Following additional discussion, the parties
5
Dave had testified earlier that he had the disease, and supporting evidence was included
in the admitted medical records. R17 at 304; R19 at 813, 818.
7
agreed not to address the disease during their closing arguments. The district court
stated that no curative instruction would be given and confirmed that such was
agreeable with Morrisons’s counsel. Id. at 17-18. Morrisons’s counsel responded
that “we’ve done an in-house curative.” Id. at 18.
The Morrisons also argue that the district court erred by redacting portions
of witness Larry Long’s deposition testimony, specifically as to the causation of
his similar injuries. The district court permitted Long’s testimony to establish that
Mann was on notice of the potential for similar injuries but limited his testimony as
to the causes of ongoing medical problems because he was “not an expert.” R18 at
634, 641, 642-43, 646, 649-50.
We review the district court’s evidentiary rulings for abuse of discretion and
will reverse only upon a showing of substantial harm. Cox v. Administrator
United States Steel & Carnegie, 17 F.3d 1386, 1413 (11th Cir. 1994). Absent a
timely objection to evidence, we review for clear error and will reverse only where
the challenged evidence presents an obvious and substantial error which seriously
effects the judicial proceeding. Christopher v. Cutter Labs., 53 F.3d 1184, 1192
(11th Cir. 1995). Further, a party cannot complain on appeal of an alleged error
that they themselves induced or invited. Thunderbird, Ltd. v. First Fed. Savings
and Loan Ass’n of Jacksonville, 908 F.2d 787, 794-95 (11th Cir. 1990).
8
The Morrisons fail to show how they were substantially justified in their
untimely disclosure of Sotomayor as an expert witness or how they were
substantially harmed by the exclusion of his testimony or by the redactions placed
on Long’s testimony. The district court did not abuse its discretion in these rulings
or in permitting Carney’s testimony, especially in light of the Morrisons’s
counsel’s agreement that a curative instruction was not necessary.
C. Partial Summary Judgment for Parsons
The Morrisons argue that partial summary judgment was erroneously
granted to Parsons on the punitive damages issues but fail to present any facts or
law to support their argument. As the district court reasoned, summary judgment
was warranted because there was no evidence to support the claim that Parsons
acted in a malicious, wanton, or willful manner.
D. Breach of Contract and Attorney’s Fees
The Morrisons argue that the district court erred by preventing them from
submitting their claims for breach of contract and associated attorney’s fees to the
jury, because Mann and the Clinic admitted that they had contracted with Dave to
provide competent medical care. See R1-1 at 32; R1-4 at 34. The Morrisons
maintain that they were eligible for attorney’s fees because Mann and the Clinic
acted in bad faith and caused them unnecessary trouble and expense, and contend
9
that they specifically requested the attorney’s fees in their prayer for relief.
In Georgia, a plaintiff cannot recover twice for the same injuries, and when
suing, for medical malpractice, must choose between a contract or tort claim. Bell
v. Sigal, 199 S.E. 2d 355, 356-57 (Ga. App. 1973). In a breach of contract claim,
attorney’s fees are allowable by a jury if “specially pleaded” and “the defendant
has acted in bad faith in making the contract, . . . or caused the plaintiff
unnecessary trouble and expense.” O.C.G.A. § 13-6-11. The plaintiff’s allegation
of bad faith must relate to the acts of the injury and not to the conduct during
litigation. Meyer v. Trux Transp., Inc., No. Civ A 105CV-02686-GE, 2006 WL
3246685 *5 (N.D. Ga. Nov. 8, 2006) (citation and quotation omitted).
The district court did not err in granting a directed verdict on the breach of
contract claim as there was no basis for this claim separate from that of the medical
malpractice claim. That claim is now moot as the jury found liability on the
Morrisons’s medical malpractice tort claim. The district also did not err in
granting a directed verdict on the related attorney’s fees, as the Morrisons did not
specially plead the attorney’s fee statute and did not allege any bad faith or any
efforts to cause any unnecessary trouble or expense by Mann or the Clinic.
E. Sanctions
The Morrisons argue that the district court erred in failing to sanction
10
Parson’s counsel for initiating ex parte communication with the district court and
Mann and the Clinic’s attorney for inappropriately contacting the Morrisons’s
expert witnesses.
The Morrisons moved to disqualify or sanction Parsons’s counsel, Heather
Miller (“Miller”), and noticed her for deposition, arguing that Miller’s conduct was
consistent with a pattern of inappropriate conduct by counsel for Mann, Parsons,
and the Clinic. They complained that, through communications that they had
received from Miller, Miller admitted that she had made a telephone call, on behalf
of all parties, to the district court deputy clerk to inquire as to filing deadline dates.
In an order addressing the motion, the district court commented that it did not view
Miller’s call as being in contravention of the local rules, as “[l]awyers regularly
call courtroom deputies to inquire about various administrative matters.” R9-137
at 5. It suggested that the call was unnecessary but served to notify the district
court of its oversight in setting deadlines and that the proper method for handling
such an inquiry was by motion. Id. at 5-6. The district court did not infer any bad
motive on Miller’s behalf, but simply a lack of familiarity with the court’s practice.
Moreover, the district court found that the Morrisons suffered no prejudice as a
result of the call because it was immediately disclosed to their attorney and made
in furtherance of the same objective sought by the Morrisons. It denied the
11
Morrisons’s motion to disqualify Miller and granted Parsons’s motion to quash the
notice of Miller’s deposition, noting that Morrisons’s counsel had overstepped and
that a deposition would only be permitted to preserve trial testimony, which Miller
did not have.
The Morrisons have failed to show any prejudice as a result of the district
court’s order. The district court did not abuse its discretion in denying the
Morrisons’s motion to disqualify Miller or for sanctions.
III. CONCLUSION
For the reasons stated above, we DISMISS the Morrisons’s appeal from the
jury verdict and AFFIRM the district court’s orders on the remaining issues.
12