Andre Ow Buland v. NCL (Bahamas) Ltd.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13012
________________________
D.C. Docket No. 1:17-cv-24167-PCH
ANDRE OW BULAND,
Plaintiff-Appellant-Cross Appellee,
versus
NCL (BAHAMAS) LTD,
Defendant-Appellee-Cross Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_______________________
(March 29, 2021)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and ED CARNES, Circuit
Judges.
WILLIAM PRYOR, Chief Judge:
These cross-appeals involve a jury trial about negligent medical treatment of
a passenger aboard a cruise ship. The jury awarded the injured passenger more
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than $2,000,000 in damages, which the district court remitted to an award of just
over $1,700,000. But the passenger argues that the district court erred by excluding
testimony about damages for loss of earning capacity from his expert economist
and by granting a directed verdict for the cruise line on that issue. And the cruise
line argues that the district court erred by refusing to give its requested jury
instruction about medical negligence at sea and by denying its motion for a new
trial. We reject the arguments for both the passenger and the cruise line and affirm.
I. BACKGROUND
Andre Ow Buland is a citizen of Trinidad and Tobago. For over 12 years, he
worked as the chief financial officer of several large corporations in Trinidad. He
made around $135,000 a year in his last five years in that role. But the job was
stressful, so Ow Buland resigned to pursue development projects for a few real
properties he owned instead.
Before turning to real-estate development, Ow Buland decided that he first
needed a vacation. He and his wife departed for a five-day cruise from Miami to
Jamaica and back. They boarded the Norwegian Pearl, a cruise ship owned and
operated by NCL (Bahamas) Ltd., a Bermuda company doing business as
Norwegian Cruise Line.
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Ow Buland woke up early in the morning of the third day of the cruise with
stomach pain. He felt weak and had acid reflux pain all day. After he vomited at
dinner, he went to the ship infirmary.
The ship’s doctors administered a blood test, a chest x-ray, and an
electrocardiogram. The medical tests confirmed Ow Buland was having a heart
attack, so the doctors admitted him to the ship’s intensive care unit. Based upon a
remote consultation with the Cleveland Clinic and not knowing if there were
facilities to treat an arterial blockage in the closest port city, the ship’s doctors
concluded it was safest for Ow Buland to stay on the ship for treatment.
The ship carried thrombolytic medications, which are clot-busting medicines
used to treat heart-attack patients. But the ship’s doctors decided it was too risky to
treat Ow Buland with a thrombolytic. He had been experiencing symptoms for too
long already, and he had recently undergone medical procedures that created a risk
thrombolytics could cause life-threatening internal bleeding.
The ship’s medical staff monitored Ow Buland in the intensive care unit
until the ship arrived in Miami a day and a half later. An ambulance waiting at the
port took him to the hospital. Ow Buland was admitted to Mount Sinai Hospital in
Miami Beach, where he underwent a cardiac catheterization and had four stents
implanted. He returned home to Trinidad and eventually got a pacemaker. He
continues to suffer from medical problems caused by the damage to his heart.
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Ow Buland sued NCL for negligence. He alleged that its medical staff failed
to diagnose and properly manage his status and failed to evacuate him from the
ship. And he claimed damages including the “loss of [the] capacity to earn
money.” He invoked both diversity-of-citizenship, 28 U.S.C. § 1332, and admiralty
jurisdiction, id. § 1333.
Because the parties initially proceeded under the assumption that the district
court had diversity jurisdiction, both requested a jury trial. But our intervening
decision in Caron v. NCL (Bahamas), Ltd. clarified that diversity jurisdiction was
unavailable. 910 F.3d 1359, 1365 (11th Cir. 2018) (“[Section] 1332(a)(2) does not
grant jurisdiction over a suit between a corporation incorporated solely in a foreign
state and another alien . . . .”). Ow Buland’s complaint fell only within admiralty
jurisdiction, which meant the parties did not have a right to a jury trial. Fed R. Civ.
P. 9(h)(1), 38(e). But the district court granted Ow Buland’s unopposed motion to
try the case to a jury by the parties’ consent. Id. R. 39(c)(2).
Ow Buland retained Gary A. Anderson, Ph.D., as a damages expert. Dr.
Anderson is an economist, and Ow Buland offered him to testify about the value of
Ow Buland’s lost earning capacity. Dr. Anderson prepared three models to
estimate Ow Buland’s lost-earning-capacity damages. Each model assumed Ow
Buland’s pre-injury earning capacity was equal to his salary when he resigned as a
chief financial officer. The models varied in their assumptions about Ow Buland’s
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post-injury earning capacity. One model assumed Ow Buland could obtain a part-
time teaching job that would pay $14,570 a year. Another assumed he could sit on
corporate boards and earn $14,990 a year. A third model, based on Ow Buland’s
pursuit of real estate development opportunities, was later withdrawn as
unrealistic. Dr. Anderson selected the potential career options for the models based
on a discussion with Ow Buland.
NCL moved for partial summary judgment on the availability of damages
for loss of earning capacity. It argued that Ow Buland had no competent evidence
to establish the magnitude of any diminished capacity because Dr. Anderson was
not a vocational expert and his analysis was based only on Ow Buland’s subjective
opinions about the work he could perform after his heart attack, not his actual post-
injury earning capacity. NCL withdrew that motion, but later moved in limine to
exclude Dr. Anderson’s testimony on loss of earning capacity. It argued that the
assumptions underlying Dr. Anderson’s models were unsupported and that his
testimony was unreliable. The district court granted the motion to exclude.
The parties proceeded to a five-day jury trial. At the close of evidence, NCL
moved for a directed verdict on the issue of lost earning capacity. The district court
agreed that Ow Buland failed to prove the extent of any impairment of his earning
capacity with enough certainty for a jury to determine a reasonable award of
damages. It granted NCL’s motion for a directed verdict.
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The district court instructed the jury using a pattern instruction for medical
negligence. It refused NCL’s request to modify the pattern instruction to add
emphasis that doctors at sea are not held to the same standard of care as doctors on
land. The jury found NCL negligent and awarded $1.2 million in non-economic
damages, $800,000 in future medical expenses, and $84,000 in lost services. Ow
Buland later accepted remittitur, and the award was reduced to $1,712,862.
NCL moved for a new trial. It based its motion on the failure of the district
court to give the jury a maritime-specific instruction about medical negligence and
on Ow Buland’s experts’ failure to acknowledge the differences between cruise-
line medicine and land-based medicine. The district court denied the motion.
II. STANDARDS OF REVIEW
“We review a district judge’s exclusion of expert testimony only for abuse
of discretion” and defer to that decision “unless it is manifestly erroneous.”
Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1305 (11th Cir.
2014) (internal quotation marks omitted). We review a directed verdict de novo.
Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1114
(11th Cir. 2005). We “examine the evidence in a light most favorable to the non-
moving party” and affirm if “there is no legally sufficient evidentiary basis for a
reasonable jury to find for the non-moving party on that issue.” Id. (internal
quotation marks omitted). And we review the denial of a motion for a new trial for
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abuse of discretion. Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th
Cir. 2002). When a party moves for a new trial based on the sufficiency of the
evidence but does not move for a directed verdict on that basis, our review is
limited to “inquir[ing] into whether any evidence supported submission of the
issue” to the jury. Coker v. Amoco Oil Co., 709 F.2d 1433, 1437 (11th Cir. 1983).
III. DISCUSSION
We divide our discussion in three parts. First, we explain the basis for
admiralty jurisdiction over complaints of medical negligence brought by
passengers of cruise ships. Second, we address the exclusion of testimony from
Ow Buland’s damages expert and the directed verdict for NCL on lost-earning-
capacity damages. And third, we address NCL’s motion for a new trial.
A. Cruise-Line Medical Negligence Claims Are Cognizable in Admiralty
Jurisdiction.
The parties agree that the district court had admiralty jurisdiction. But we are
obligated to review our subject-matter jurisdiction sua sponte. Nance v. Comm’r,
Ga. Dep’t of Corr., 981 F.3d 1201, 1204 (11th Cir. 2020). Because we have never
explained the basis for admiralty jurisdiction over a complaint of medical
negligence brought by a cruise-ship passenger, we do so here before turning to the
merits of the appeal.
The judicial power of the United States extends “to all Cases of admiralty
and maritime Jurisdiction.” U.S. Const. art. III § 2, cl. 1. By statute, Congress gave
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the district courts original jurisdiction of “[a]ny civil case of admiralty or maritime
jurisdiction.” 28 U.S.C. § 1333. Traditionally, the determination of whether a tort
fell within the admiralty jurisdiction of the federal courts turned on whether the
wrong occurred on navigable waters. See Exec. Jet Aviation, Inc. v. City of
Cleveland, 409 U.S. 249, 253 (1972) (explaining the traditional rule of locality).
But the Supreme Court later clarified that a tort must also have “a significant
connection with traditional maritime activity” to fall within maritime jurisdiction.
Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674 (1982).
A tort falls within admiralty jurisdiction when two conditions are satisfied.
First, “the incident occurred on navigable water, or the injury was caused by a
vessel on navigable water.” Caron, 910 F.3d at 1365. And second, “the incident is
connected with maritime activity.” Id. The second condition requires courts to
“assess the general features of the type of incident involved to determine whether
the incident has a potentially disruptive impact on maritime commerce,” and to
“determine whether the general character of the activity giving rise to the incident
shows a substantial relationship to traditional maritime activity.” Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)
(internal quotation marks and citations omitted).
Both conditions are satisfied in this appeal. First, the medical negligence
occurred on the navigable waters between Jamaica and Miami. Second, the
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medical negligence is connected to the traditional maritime activity of providing
care and comfort to ship passengers. Medical negligence aboard a cruise ship has
“a potentially disruptive impact on maritime commerce,” id. (internal quotation
marks omitted), because, among other reasons, failure to provide reasonable
medical care under the circumstances may force a cruise ship to make an
unplanned stop and disrupt the cruise for other passengers. And “the general
character of the activity giving rise to the incident”—here, caring for sick
passengers—“shows a substantial relationship to traditional maritime activity.” Id.(internal quotation marks omitted).
It has long been the case that “[a] contract for passage by water implies
something more than ship room and transportation. It includes reasonable
comforts, necessaries, and kindness, and suitable food and the common means of
relief in cases of sickness.” Defrier v. The Nicaragua, 81 F. 745, 745 (S.D. Ala.
1897) (citing Chamberlain v. Chandler, 5 F. Cas. 413, 414 (C.C.D. Mass. 1823)
(No. 2,575) (Story, J.)). The Passenger Act of 1882 also imposed a duty to provide
medical care for passengers:
[E]very steamship or other vessel carrying or bringing emigrant
passengers, or passengers other than cabin passengers, exceeding fifty
in number, shall carry a duly qualified and competent surgeon or
medical practitioner . . . who shall be provided with surgical
instruments, medical comforts, and medicines proper and necessary for
diseases and accidents incident to sea-voyages, and for the proper
medical treatment of such passengers during the voyage . . . .
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Pub. L. No. 47-374, § 5, 22 Stat. 186, 188. To be sure, today’s “state-of-the-art
cruise ships . . . , complete with well-stocked modern infirmaries and urgent care
centers,” have come a long way from “nineteenth-century steamships.” Franza v.
Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1239 (11th Cir. 2014). But caring
for sick passengers is a “traditional maritime activity,” Jerome B. Grubart, Inc.,
513 U.S. at 534 (internal quotation marks omitted), even if performed in a more
sophisticated way today. The district court had admiralty jurisdiction over Ow
Buland’s complaint about a maritime tort.
B. The District Court Did Not Err by Excluding Testimony from Ow
Buland’s Expert Economist and Granting a Directed Verdict on Loss of
Earning Capacity.
“An award for impaired earning capacity is intended to compensate the
worker for the diminution in [his] stream of income.” Jones & Laughlin Steel
Corp. v. Pfeifer, 462 U.S. 523, 533 (1983). The en banc former Fifth Circuit
explained that calculating such an award “involves four steps: estimating the loss
of work life resulting from the injury or death, calculating the lost income stream,
computing the total damage, and discounting that amount to its present value.”
Culver v. Slater Boat Co., 722 F.2d 114, 117 (5th Cir. 1983) (en banc). “The base
figure” arrived at before discounting to present value “is the difference between
what a person could have earned ‘but for’ the accident and what he is able to earn
upon returning to work in his partially disabled state.” Masinter v. Tenneco Oil
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Co., 867 F.2d 892, 899 (5th Cir. 1989), mandate recalled and modified, 934 F.2d
67 (5th Cir. 1991).
Ow Buland challenges two orders related to his request for damages for loss
of earning capacity. We first discuss the exclusion of testimony about loss of
earning capacity from Ow Buland’s economic expert. We then discuss the directed
verdict on lost-earning-capacity damages.
1. Dr. Anderson’s Testimony Was Unreliable Because It Was Based on
Unsupported Assumptions About Ow Buland’s Post-Injury Earning
Capacity.
The district court did not abuse its discretion by excluding Dr. Anderson’s
testimony on the value of Ow Buland’s lost earning capacity. Federal Rule of
Evidence 702 establishes the prerequisites for expert testimony to be admissible
into evidence:
(1) [T]he expert [must be] qualified to testify competently regarding the
matters he intends to address; (2) the methodology by which the expert
reaches his conclusions [must be] sufficiently reliable as determined by
the sort of inquiry mandated in Daubert [v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993)]; and (3) the testimony
[must] assist[] the trier of fact, through the application of scientific,
technical, or specialized expertise, to understand the evidence or to
determine a fact in issue.
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)
(footnote omitted). “The Daubert requirement that the expert testify to scientific
knowledge—conclusions supported by good grounds for each step in the
analysis—means that any step that renders the analysis unreliable under the
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[Daubert] factors renders the expert’s testimony inadmissible.” Kilpatrick v. Breg,
Inc., 613 F.3d 1329, 1341 (11th Cir. 2010) (alteration rejected) (internal quotation
marks omitted).
Dr. Anderson used the following steps to estimate the present value of Ow
Buland’s lost earning capacity. First, he used Ow Buland’s actual history of
earnings as his pre-injury earning capacity. From there, he assumed modest yearly
salary increases over the course of Ow Buland’s working life, added the value of
fringe benefits, and adjusted for mortality and taxes. Then, he subtracted the
amount Ow Buland would be expected to earn in each of several post-injury
careers. Finally, he discounted the difference to present value and reported the
resulting number as Ow Buland’s loss of earning capacity. Based on that
methodology, Dr. Anderson’s testimony was reliable only to the extent the
hypothetical careers it was based on approximated Ow Buland’s actual post-injury
earning capacity.
Dr. Anderson’s assumption that Ow Buland did not have career
opportunities more lucrative than working as a part-time university teacher or
member of a corporate board was entirely speculative. Dr. Anderson testified in his
deposition that he “identified [the] alternative scenarios for prospective post injury
employment pursuant to [a] discussion with Mr. Ow Buland.” He “rel[ied] on the
testimony of [an expert cardiologist] that . . . [Ow Buland] is not capable of
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performing the work of a [chief financial officer].” And he also relied on a letter
from a recruiting director explaining that “senior finance professionals [in Trinidad
and Tobago] typically . . . work extended hours on a consistent basis” and
suggesting that Ow Buland “may be more suited to a flexible working arrangement
that would allow him to control his working hours in line with his physical
limitation.”
To be admissible under Daubert, an expert’s opinion must be “supported by
good grounds for each step in the analysis.” Id. (internal quotation marks omitted).
Dr. Anderson did not have good grounds to support his assumption that there was
no middle ground between Ow Buland’s suggestions about the kinds of part-time
work he could perform and the work as a senior finance professional he could no
longer perform. The unsupported assumption made his testimony unreliable. The
district court did not abuse its discretion by excluding Dr. Anderson’s testimony on
loss of earning capacity.
2. NCL Was Entitled to a Directed Verdict Because Ow Buland Did Not
Prove the Amount of His Lost-Earning-Capacity Damages.
Ow Buland argues that at trial he “presented more than sufficient lay and
medical testimony to establish a permanent injury, and a significant diminution in
his ability or capacity to earn income.” He contends that his pre-injury earning
capacity is evident from his previous salary as a chief financial officer, and that his
medical experts established that the injury prevented him from returning to a
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stressful full-time job. And he contends that he testified to his ability to work as a
part-time university teacher or member of a corporate board with specificity about
what he could earn in those positions.
But there is a significant gap between the 10-hour workweek Ow Buland
testified he could handle and the 60-hour workweek his medical experts testified
he could no longer handle. “[T]ort law requires an aggrieved plaintiff to prove [his]
damages with a reasonable degree of certainty.” Guyana Tel. & Tel. Co. v.
Melbourne Int’l Commc’ns, Ltd., 329 F.3d 1241, 1248 (11th Cir. 2003); see also
Restatement (Second) of Torts § 912 (Am. L. Inst. 1979). A jury award for lost
earning capacity must be supported by record evidence of the upper limit of the
plaintiff’s post-injury earning capacity. See Myers v. Griffin-Alexander Drilling
Co., 910 F.2d 1252, 1253, 1255 (5th Cir. 1990).
Ow Buland failed to present evidence that “the part-time jobs he believes he
is qualified and capable of performing, such as sitting on corporate boards, and
part-time university level teaching,” represent the full extent of his post-injury
earning capacity. Without evidence establishing that fact, any jury award for lost
earning capacity would have been unduly speculative. Because there was no
legally sufficient evidentiary basis for the jury to award Ow Buland damages for
loss of earning capacity, the district court correctly granted NCL’s motion for a
directed verdict. See Fed. R. Civ. P. 50(a).
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C. NCL Is Not Entitled to a New Trial.
NCL cross-appeals from the order denying its motion for a new trial. It
argues that it is entitled to a new trial because the district court erred by refusing to
give the jury a standard-of-care instruction that was tailored to the maritime
medical malpractice context, and because Ow Buland’s expert witnesses testified
to the standard of care in a land-based emergency room, not one at sea. We address
NCL’s arguments in turn.
1. The District Court Correctly Instructed the Jury.
We have explained that “[i]t is indisputable that cruise lines must treat their
passengers with ‘ordinary reasonable care under the circumstances.’” Franza, 772
F.3d at 1253 (quoting Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322
(11th Cir. 1989)). And we have explained how that duty, which is the standard for
all maritime torts, applies in the context of medical negligence. “Implicit in this
variable standard is the notion that cruise lines will not always be held to the same
standard of care that would guide treatment onshore. This is as it should be, since
standards of care typically vary among differently situated healthcare providers.”
Id.The district court instructed the jury in accordance with Franza. It explained
that reasonable care is defined in the light of “all relevant surrounding
circumstances” and that medical negligence is “doing something that a reasonably
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careful physician would not do under like circumstances or failing to do something
that a reasonably careful physician would do under like circumstances.” A district
court “enjoys broad discretion to formulate jury instructions provided those
instructions are correct statements of the law.” United States v. Lebowitz, 676 F.3d
1000, 1014 (11th Cir. 2012). The instruction given correctly stated the law, and the
exact wording of it fell within the discretion of the district court.
The district court did not abuse its discretion by choosing a more general
formulation of the instruction than the one NCL requested. NCL argues the district
court should have instructed the jury that “[r]easonable care on the part of a
physician in an admiralty case involving medical malpractice” is defined in
reference to “similar and reasonably careful physicians in the same maritime
environment,” and that medical negligence is “doing something that a reasonably
careful physician in the same maritime environment would not do under like
circumstances or failing to do something that a reasonably careful physician in the
same maritime environment would do under like circumstances.” That proposed
instruction is as accurate as the instruction the district court gave. But it is up to the
litigants—not the district court—to present the evidence and to make the case to
the jury about which circumstances are relevant to the standard of care in a case of
medical negligence.
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2. Sufficient Evidence Supported the Verdict Against NCL.
NCL also argues that a new trial is necessary because Ow Buland “did not
establish the requisite standard of care applicable to a physician facing a cardiac
emergency at sea or then prove that NCL’s doctors did not meet the applicable
standard of care.” We understand this to be an argument that the evidence was
insufficient to support the jury’s verdict. But NCL did not move for a directed
verdict based on Ow Buland’s failure to prove a violation of the correct standard of
care. After the close of evidence, it moved for a directed verdict on four grounds:
failure to prove past medical expenses, failure to prove any alleged breach
exacerbated the damage caused by the heart attack, failure to prove future medical
expenses, and failure to prove lost earning capacity. But it did not argue that Ow
Buland failed to prove a breach of the correct standard of care until it moved for a
new trial.
“[A]n appellate court cannot examine the sufficiency of the evidence
supporting the jury’s verdict unless the objecting party filed a timely motion for
directed verdict with the trial court.” Coker, 709 F.2d at 1437. When a party allows
an issue to go to the jury without first objecting to the sufficiency of the evidence,
our review on appeal is limited to “inquir[ing] into whether any evidence
supported submission of the issue.” Id. The issue before us is “whether there was
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an absolute absence of evidence to support the jury’s verdict.” Wilson v. Attaway,
757 F.2d 1227, 1237 n.3 (11th Cir. 1985) (internal quotation marks omitted).
Some evidence supported the jury’s finding that NCL did not exercise
reasonable care under the circumstances. The district court observed that “[NCL]
had the ability to administer a thrombolytic . . . [and the] decision was made not to
. . . . [It] had the ability to go to the nearest port and disembark . . . and [NCL]
didn’t do that, and that’s a circumstance . . . the jury certainly could and probably
did consider.” And the district court pointed out that NCL offered testimony “that
the facilities onboard the ship were at least the equivalent of a land-based
emergency room,” which the jury could have relied on to find that NCL failed to
treat Ow Buland as well as it could have even under the circumstances. Some
evidence existed to support the jury’s finding that NCL failed to provide
reasonable care under the circumstances. So we cannot disturb the verdict based on
Ow Buland’s alleged failure to prove a breach of the proper standard of care. NCL
is not entitled to a new trial.
IV. CONCLUSION
We AFFIRM.
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