Guzman Ex Rel. Guzman v. Emeritus Corp. , 341 F. App'x 509 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 7, 2009
No. 09-10981
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 08-00376-CV-ORL-18-GJK
PEDRO GUZMAN, individually and as personal
representative of Minerva Guzman, deceased,
Plaintiff-Appellant,
versus
EMERITUS CORPORATION,
d.b.a. Pavilion at Crossing Pointe,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 7, 2009)
Before BLACK, BARKETT and COX, Circuit Judges.
PER CURIAM:
Pedro Guzman, individually and as personal representative of the estate of his
wife Minerva Guzman (“Guzman”), sued Emeritus Corporation (“Emeritus”), the
owner of the assisted living facility in which Mrs. Guzman resided at the time of her
injury. The complaint sought damages arising out of alleged violations of Mrs.
Guzman’s statutory rights that resulted in Mrs. Guzman falling and fracturing her hip.
(R.1-2.) Following discovery, the parties filed cross-motions for summary judgment.
Emeritus also filed a Daubert motion to preclude testimony by Guzman’s expert
witnesses.
The district court disposed of these motions in one written order. (R.4-43.)
The court granted Emeritus’s Daubert motion and denied Guzman’s motion for
summary judgment. Having excluded Guzman’s expert witnesses’ testimony that had
been proffered to show that Emeritus had breached its duty of care to Minerva
Guzman, the court granted Emeritus’s motion for summary judgment. The court
reasoned that summary judgment was appropriate because, having ruled that
Guzman’s expert witnesses’ testimony was inadmissible, there was no evidence of
breach, proximate cause, or damages. (Id. at 8.) The court held in the alternative that,
even if Guzman’s expert witnesses’ testimony were admissible, none of the “alleged
breaches of duty could be construed as the proximate cause of Mrs. Guzman’s fall
from her bed on October 17, 2008.” (Id.) The court concluded that, without the
expert testimony, Guzman had not shown breach, proximate cause, or damages. And,
the court concluded that, even if the expert testimony were considered, Guzman had
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not shown proximate cause. The court granted summary judgment on these grounds.
Guzman filed a notice of appeal identifying the grant of Emeritus’s motion to
preclude expert witnesses’ testimony and the grant of summary judgment to Emeritus
as subjects of his appeal. (R.4-47.)
Emeritus argues that this court has no jurisdiction over this appeal because
Guzman has not appealed a final order of the district court, but rather appealed the
order precluding his expert witnesses’ testimony. We disagree. Guzman’s notice of
appeal states that he appeals the order granting summary judgment. Additionally, his
initial brief implicitly challenges the propriety of the district court’s grant of summary
judgment to the extent that it was based on the court’s conclusion that his proffered
expert witnesses’ testimony was inadmissible. (Appellant’s Br. at 9-10.) See Fed.
Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 n.3 (11th Cir. 1987) (“Briefs
are read liberally to ascertain issues raised on appeal.”) (citation omitted).
Accordingly, we have jurisdiction to hear Guzman’s appeal challenging the propriety
of the district court’s grant of summary judgment.
Guzman argues at length that the district court erred in excluding the expert
witnesses’ testimony. Guzman has not, however, demonstrated that the district
court’s alternative ground for granting summary judgment – that even if the expert
testimony were admissible Guzman had not made any showing of proximate cause
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– was in error. Accordingly, we conclude that the district court properly granted
summary judgment on the ground that Guzman failed to show proximate cause. The
judgment of the district court is affirmed.
AFFIRMED.
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