ROYAL CARIBBEAN CRUISES, LTD. v. LISA SPEARMAN ( 2021 )

Third District Court of Appeal
State of Florida
Opinion filed April 28, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-2188
Lower Tribunal No. 11-23730
________________
Royal Caribbean Cruises, Ltd.,
Appellant,
vs.
Lisa Spearman,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Reemberto
Diaz, Judge.
Holland & Knight, LLP, and Rodolfo Sorondo, Jr. and Rebecca M.
Plasencia, for appellant.
Colson Hicks Eidson, P.A., and Deborah J. Gander and Susan S.
Carlson; Meister Law LLC, and Tonya J. Meister, for appellee.
Before LOGUE, HENDON, and GORDO, JJ.
HENDON, J.
Royal Caribbean Cruises, Ltd. (“Royal Caribbean”) appeals from a
$20.3 million final judgment entered in favor of Lisa Spearman (“Spearman”)
on her counts for Jones Act negligence and unseaworthiness. We affirm the
jury’s finding of liability against Royal Caribbean and in favor of Spearman,
but as the trial court failed to consider the factors set forth in section
768.74(5) of the Florida Statutes, as it was required to do when ruling on
Royal Caribbean’s motion for remittitur, we remand with instructions for the
trial court to conduct a new hearing on the motion for remittitur to address
these factors.
I. FACTS AND PROCEDURAL HISTORY
A. Operative Complaint
In 2011, Spearman filed suit against Royal Caribbean for crush injuries
sustained to her right hand in August 2008 while a crewmember on the
Voyager. The injuries occurred when her fingers got caught in the “pinch
point” of a Semi-Watertight Door (“SWTD”), specifically an “A-60 Single Leaf
Sliding Door” (“A-60 SWTD”), as the door was retracting back into the
bulkhead (wall) after a Royal Caribbean nurse improperly overrode Bridge
Control during a safety drill. 1 Spearman alleged that she has since been
1
The A-60 SWTD prevents the spread of both fire and water by forming a
water-resistant seal against the adjacent bulkhead (the wall) when the door
is closed. This door is capable of preventing the spread of water and fire for
2
diagnosed with Complex Regional Pain Syndrome (“CRPS”) and Post-
Traumatic Stress Disorder (“PTSD”). In the operative complaint, Spearman
asserted two causes of actions against Royal Caribbean that were later
presented to the jury and specifically addressed by the jury in the verdict
form—Jones Act negligence and unseaworthiness. 2
B. Pretrial Motions in Limine
i. Alternative Design for the A-60 SWTD
Prior to trial, Royal Caribbean filed a motion in limine to exclude the
testimonies of Spearman’s liability experts, Eric Van Iderstine (“Van
Iderstine”), a mechanical engineer, and John W. Sullivan (“Sullivan”), a
marine engineer, regarding an alternative design for the A-60 SWTD that
Van Iderstine created for the sole purpose of this litigation using Computer
Assisted Drawing software (“CAD prototype” or “CAD model”). According to
Van Iderstine, the CAD prototype is a safer alternative design because it
includes a cutout that eliminates the pinch point, and therefore, a person’s
hand can safely remain on the door handle when the door retracts into the
bulkhead (wall). In addition to reshaping the door frame, the CAD prototype
sixty minutes.
2
Spearman withdrew the remaining causes of action prior to the
commencement of trial.
3
also requires the reshaping of the door and a gasket. The purpose of the
gasket is to prevent the spread of water and smoke into other compartments.
Van Iderstine’s CAD prototype also included the addition of a second crash
bar and sensor. Royal Caribbean does not design or manufacture the safety
doors installed on any of its ships. A safety door such as the CAD prototype,
which was designed by Van Iderstine several years after Spearman’s
accident, did not exist at the time of the accident and such a door has not
been manufactured, tested, or approved by the regulatory entities governing
the shipping/cruise line industry as of the date of this appeal.
In opposition to the motion in limine, Spearman submitted Van
Iderstine’s affidavit, which provides, in part, as follows:
12. In my positions as Machine Design Engineer and as
Mechanical Engineering Manager, I personally performed
engineering design of mechanical components and systems
using the same engineering principles and techniques used in
the design of the subject semi-watertight sliding fire door on the
Voyage [sic] of the Sea cruise ship.
13. In my position as a Machine Design Engineer, I created
engineering drawings of complex mechanical systems, as well
as detailed component drawings, as a routine part of the machine
design and manufacturing process. These included welded
structural assemblies manufactured using the same methods as
was used in the construction of the subject semi-watertight
sliding fire door.
....
21. I . . . did prepare a computed [sic] aided design (CAD) model
of a modified subject-type sliding door assembly. . . . I identified
4
that an unguarded pinch point existed when the recessed pocket
and door handle passed into the doorframe. . . . I determined that
the hazard could be addressed by a design change and by
guarding the hazardous area of the door and doorframe. The
CAD model depicted changes to the right side of the door that
would eliminate the pinch point hazard that injured Ms.
Spearman by changing the shape of the right-side of the door,
right-side door frame, and right-side seal. There are no
restrictions in the International Convention for the Safety of Life
at Sea (SOLAS) that prevents engineering design changes to
enhance safety. . . .
....
23. In the defense’s motion to limit my testimony (Section VII –
7), the defendant is critical of my alternate design due to a lack
of testing of the design I proposed. As a design engineer, I have
reviewed the engineering drawings, documents, and
photographs of the existing subject door and produced a CAD
model (Exhibit 4) of an alternate design that simply changes the
shape of one portion of the door and door frame. I have
accounted for the ability of the door to continue to provide a seal
using the same cross-section seal as is currently in use and have
opined that the modifications to the existing design use the same
construction techniques as are currently in use. The design I
propose would not adversely impact the stiffness or soundness
of the existing design, and my opinion is to a reasonable degree
of mechanical engineering certainty that the alternate design
would eliminate the hazard while providing the current level of
leakage resistance and fire protection. . . .
24. In the defense’s motion to limit my testimony (Section VII –
9), the defendant is critical of my alternate design as being novel
and not currently being manufactured or approved by the DNV.
The alternate design that I have proposed utilizes the same
materials and method of construction as the subject semi-
watertight door and, based on widely accepted mechanical
engineering principles, would offer similar levels of performance
to the existing door, but no longer have the hazard that injured
Ms. Spearman. The alternate design I have proposed only
changes the shape of the right-hand side of the door and the door
5
frame as viewed while departing the medical facility. I have
reviewed photographs that were part of my case file of cruise
ship doors that have cutouts on the door frame that allow for the
hand of a person to be on the handle of a sliding door when it
opens. The use of a modified door frame is not novel and is in
use on ship doors to provide an increased level of safety and risk
mitigation. Had the level of safety been present on the subject
semi-watertight door, Ms. Spearman’s hand would not have
been pulled between the door and door frame. . . .
25. In the defense’s motion to limit my testimony (Section VII –
10), the defendant states that I am “aware of no door that is
presently manufactured which meets the FTP code approval with
a design similar to the one proposed in his CAD drawing.” As I
have stated above, the use of cutouts on ship doors is not a novel
idea. Additionally, Parmarine, the manufacturer of the subject
door, markets A-60 SWTDs that have cutouts in the door itself
so that ducts or hoses can be in the doorway while still allowing
the door to open and close. . . .
....
28. In the defense’s motion to limit my testimony (Section VII -
15), the defendant states, “Mr. Van Iderstine is aware of no door
in use today aboard oceangoing ships that incorporates a crash
bar device on the door frame.” This statement is misleading as
it relates to the issue of addressing the pinch point hazard that
injured Ms. Spearman. . . . The actual subject door that injured
Ms. Spearman incorporated a crash bar on the moving portion of
the door. My alternate design to guard the pinch point hazard
that injured Ms. Spearman would simply add a second crash bar
on the right side door frame that would provide the same level of
protection to a person whose had is on the door handle as the
current crash bar offers to the person or object that in contacts.
My proposed alternate design, whether it is referred to as a
proximity sensor or crash bar, is based on widely acceptable
engineering methods, physics, and mechanical engineering
design.
In addition to Van Iderstine’s affidavit, Spearman also submitted
6
Sullivan’s affidavit, which was filed after he reviewed Royal Caribbean’s
motion in limine and Van Iderstine’s deposition and exhibits. Based on
industry standards and his experience and education, Sullivan opined as
follows:
In defense’s Motion in Limine to exclude Eric Van
Iderstein’s [sic] testimony defendants cite that the door re-
designed by Iderstein [sic] is not “feasible” because the door did
not undergo the testing and approval procedures necessary for
getting a modification of an existing piece of equipment in order
to have it approved by a Classification society. I disagree. It is
feasible. There is a normal and routine process that can be
carried out in a timely manner in order to get the modified design
approved by Class.
....
The modification to the incident type door in the Spearman
case proffered by Iderstein [sic] is a reasonable modification
available for safety that would have prevented the incident.
The trial court denied Royal Caribbean’s motion in limine, but ruled that
Royal Caribbean could cross-examine the experts as to the CAD prototype.
ii. Dr. Anthony Kirkpatrick’s Testimony as Speculative
Royal Caribbean also moved in limine to preclude portions of Dr.
Anthony Kirkpatrick’s testimony regarding future medical damages, including
lifetime “attendant care,” as the testimony was speculative. In his deposition,
Dr. Kirkpatrick, who is an expert on CRPS, testified that Spearman may
require “attendant care” twenty-four hours a day, seven days a week,
because Spearman may become totally dependent and confined to a
7
wheelchair. Dr. Kirkpatrick testified that there is a treatment available—
ketamine infusion treatment—which he recommended Spearman undergo.
However, because Spearman’s CRPS has been ongoing for almost ten
years, “it’s going to be very difficult to reverse the clinical course of this
disease, but I think there can be significant improvement made [with the
ketamine infusion treatments.] . . . . So definitely she’s not at maximum
medical improvement, okay? There’s just no way to say that at this point in
time.” Dr. Kirkpatrick also stated that he is “optimistic, and [Spearman]
should be optimistic, but we don’t know. We don’t know.” Dr. Kirkpatrick
testified that with the ketamine infusion treatments, he’s “confident we’re
going to get her pain down, you know, because we’ve done enough of these
we can predict that.” Following a hearing, the trial court denied Royal
Caribbean’s motion in limine.
C. Jury Trial
Spearman presented evidence, requested jury instructions, and
argued in opening and closing statement that Royal Caribbean was negligent
and/or provided an unseaworthy ship based on four distinct theories of
liability: (1) the A-60 SWTD could have been designed to eliminate the
“pinch point”; (2) Royal Caribbean failed to train the ship’s crewmembers on
how to avoid the SWTD’s “pinch point”; (3) the A-60 SWTD lacked a warning
8
sign or sticker regarding the “pinch point”; and (4) the nurse involved in the
incident was negligent when she improperly overrode Bridge Control during
the safety drill.
The evidence presented at trial showed that the Voyager has three
types of safety doors—watertight doors (“WTD”), fire doors, and SWTDs—
and that Royal Caribbean does not design or manufacture these doors.
Spearman’s testimony reflects that she received training on WTDs and fire
doors, but not on SWTDs. Further, she was not told that the manual of the
A-60 SWTD warns that “the speed of the opening movement is very fast,
watch for fingers. You may lose them.” During her training on a WTD,
Spearman learned that a threshold flips up when the door is under Bridge
Control, and to override Bridge Control, the handle must continuously be held
down. If the handle is not continuously held down, the WTD will close and
has the capability of severing a large bone. In contrast, to override Bridge
Control of a fire door, the door will start to retract into the bulkhead (wall)
once the handle is pressed down, will continue to retract even when the
handle is released, and will bounce back when it hits an obstruction. Unlike
a WTD, a fire door does not have a threshold that flips up when under Bridge
Control, whereas a SWTD does have a threshold that flips up. Overriding
Bridge Control of a SWTD is somewhat similar to overriding Bridge Control
9
of a fire door. Although Bridge Control of a safety door can be physically
overridden, crewmembers are prohibited from doing so during safety drills.
At trial, the evidence showed that Spearman’s injuries to her hand and
fingers occurred when fingers on her right hand were pulled into the “pinch
point” of the A-60 SWTD. While the Voyager was undergoing pre-cruise
preparation safety drills in Barcelona, Spain, there was an announcement
over the loudspeakers indicating that a safety drill would be commencing.
When the safety drill commenced, the safety doors, including the A-60
SWTD at issue, were placed under Bridge Control and closed. During the
safety drill, Spearman approached the closed A-60 SWTD and stood by the
door. While standing there, Spearman noticed that the handle on the door
went down and the door began to open. At that moment, a nurse began to
walk through carrying boxes, and she tripped on the rising threshold flap and
lost her balance. 3 With her left hand, Spearman reached out to steady the
nurse, and with her right hand, Spearman pressed and held down the handle
because she believed the nurse would get severely injured if the handle was
released. As Spearman continued to press down the handle, the door
3
The facts are taken in the light most favorable to Spearman as the
prevailing party. Royal Caribbean’s position was that Spearman, not the
nurse, overrode Bridge Control of the A-60 SWTD at issue. Spearman,
however, testified that it was the nurse who overrode Bridge Control by
pressing down on the handle of the A-60 SWTD.
10
continued to open, retracting into the bulkhead (wall). Spearman’s right hand
went into the bulkhead (wall) and several of her fingers got caught in the
pinch point. Initial efforts to free Spearman’s hand and fingers from the
bulkhead were unsuccessful. After a few minutes, the Bridge remotely
closed the door, freeing Spearman’s fingers from the pinch point. Spearman
did not recall seeing any of the markings and instructions that were on the
door and did not pause to consider the type of door. Although the door had
markings indicating it was a safety door and instructions on how to open the
door, the door did not have any sort of warning sticker indicating that if the
handle is not released, a person’s hand could be caught in the pinch point.
During trial, Spearman also presented evidence that Royal Caribbean had
twelve prior similar incidents fleetwide during a three-year period.
Following the incident, Spearman was treated at a hospital in
Barcelona for several days, and she eventually returned to her home in New
Zealand where she continued to be treated and received numerous
therapies. Despite the treatments and therapies, Spearman never fully
recovered, and in February 2010, one of her physicians declared that she
had achieved maximum medical improvement. Spearman did not return to
work because she was not capable of lifting fifty pounds, which is a
requirement for all crewmembers.
11
Spearman presented testimony relating to her training on safety doors
at Royal Caribbean, the incident, her treatments, and her limitations and
pain. Spearman testified that she has been diagnosed with CRPS, which
has spread to other parts of her body, and to several CRPS symptoms,
including shiny or waxy skin; an abnormal sweating pattern; extreme
sensitivity, such as a breeze causing pain; and a change in the skin
temperature that requires her to wear a glove on her right arm. Spearman
wore a glove during her trial testimony and in the video of her medical
examination by Royal Caribbean’s medical examiner.
During a break in Spearman’s testimony after she testified as to a
statement made by a security officer onboard the Voyager regarding prior
similar incidents, the jury asked the trial court the following question: “How
much would it cost for Royal Caribbean to modify the door, and why wasn’t
it done[?]” The trial court informed the jurors that it would address the
question at the appropriate time.
In addition, several doctors and experts testified on Spearman’s behalf,
including Dr. Kirkpatrick, who is an expert on CRPS. The testimony reflects
that as a result of the accident, Spearman suffers from PTSD, CRPS, which
has spread beyond the injured hand, and panic attacks. Dr. Kirkpatrick
explained that Spearman has met the following criteria for a CRPS diagnosis:
12
(1) a noxious event or injury that does not follow the normal healing course,
(2) there is evidence of abnormal function of the sympathetic nervous system
at some point in time, and (3) “differential diagnosis” ruling out other possible
explanations. Dr. Kirkpatrick testified that he diagnosed Spearman with
CRPS based on objective findings, such as the physical appearance of her
right hand, the difference in temperature between her two hands, abnormal
sweating patterns, sensitivity to light touch, swelling, “goose flesh,” and skin
discoloration. Further, although there was a gap in examinations between
2009 and 2013, Dr. Kirkpatrick explained that the symptoms of CRPS “wax
and wane.” Dr. Kirkpatrick’s testimony reflects that Spearman’s CRPS was
initially in her injured hand, but has since spread to other parts of her body
and to the left side of her body. As to Spearman’s prognosis related to
CRPS, Dr. Kirkpatrick testified as follows:
A. My opinion is that it is – it is unlikely given what we know
that she is probably going to get cured. But within a reasonable
degree of medical probably [sic], more likely than not, we’re
going to help her improve the quality of her life.
In medicine, we use the term “palliative care,” improving
the quality of life; less pain, more function, better mental status,
emotional being, sense of well-being. I’m confident that that’s
going to happen.
Q. And would now be the time where you can tell us how
you think you’re going to do that? How based on your training
and your clinical studies do you believe you will be able to help
Lisa Spearman?
A. Yes. Based on not just the clinical experience but the
research we’ve been doing over the past decade, that I think her
13
best solution now is the ketamine. That – we’ve had many
patients similar to her situation and we have helped them
enormously, okay.
And now, I want to – I want to emphasize that it’s variable.
Some patients we treat and may never see them again. They’re
fixed. Others, they go on and they don’t improve. In fact, some
don’t do so well.
Those are the – those are not the common scenario, but
that can happen for sure. But I don’t anticipate a cure in this
situation.
Cure, by the way, that word is used so let me define what I
mean.
Q. What does “cure” mean –
A. Yeah, sure.
Q. – as you are using it?
A. In the field of medicine, we often talk about cure as it
relates to cancer. If you put a patient in remission for five years
without return of their symptoms from the cancer, we call that a
cure. It’s arbitrary, but that’s just what we – the way we frame it
usually.
Q. Are you able in any way to quantify how much better
you think the ketamine will make her?
A. Just as I described. In only qualitative terms, I believe
that she will have a better sense of well-being. Well-being – just
it’s hard to – just – you look forward to sunshine and you look
forward to this. You’re hopeful and life is opening up. Better
function, better activities of daily living, less pain.
Q. And do those three things combine to create less
emotional stress caused by the condition?
A. Oh, yes.
Q. Are those your opinions within a reasonable degree of
medical probability?
A. Yes.
Dr. Kirkpatrick testified as to a surveillance video taken by Royal
Caribbean of Spearman, which was later introduced by Royal Caribbean, in
which Spearman utilized her right hand to do various activities. He stated
14
that those activities are the type of activities that he encourages patients with
CRPS to engage in. Dr. Kirkpatrick then testified as to the life care plan
submitted by Darlene Carruthers that was based, in part, on his
recommendations.
Spearman also presented the testimony of Darlene Carruthers, who is
a vocational rehabilitation counselor and life care planner. Based on
recommendations made by several health care professionals, Carruthers
testified as to the type, frequency, and cost of treatments, therapies,
equipment, and services Spearman would need during her forty-year
lifespan as a result of her injuries. Carruthers testified that Dr. Kirkpatrick
recommended that Spearman receive “attendant care” services, which is a
personal caregiver 4, at a frequency of twelve hours per day and up to twenty-
four hours per day on an as-needed basis. Carruthers also testified to the
cost of five ketamine infusion therapies, totaling $75,000, which includes the
cost of travel from New Zealand to Tampa.
Spearman presented the testimony of a forensic economist, Gary Allen
Anderson, who assessed the economic loss associated with Spearman’s
4
Carruthers testified that Dr. Kirkpatrick testified in his April 2017 deposition
that Spearman “may need attendant care 24 hours a day seven days a
week.” She contacted Dr. Kirkpatrick by phone to clarify, and he told her to
“put 12 hours and up to 24 hours as needed” and that the “up to 24 hours
per day” would depend upon the point at which the CRPS had progressed.
15
injury. The predicate for his economic loss calculations was Carruthers’
opinions and recommendations in her plan as to the type of care, the
frequency of care, and the cost of care. Anderson testified that his
calculations did not allocate any money to items included in Carruthers’ plan
if the plan stated, “if needed.” Therefore, for attendant care, his calculations
only included twelve hours per day, not twenty-four hours per day. Anderson
testified that the present value of Spearman’s future medical care is
$6,166,467.
Over Royal Caribbean’s objection, Van Iderstine and Sullivan testified
as to the CAD prototype Van Iderstine created for purposes of litigation,
explaining that Spearman’s injuries could have been avoided if the A-60
SWTD had cutouts as proposed in the CAD prototype. Royal Caribbean’s
counsel vigorously cross-examined Van Iderstine and Sullivan.
Royal Caribbean presented a surveillance video of Spearman taken
during several days in December 2017 and January 2018.5 The video
showed Spearman participating in daily activities, such as grocery shopping
and tending to her children. The video also showed Spearman using her
right hand to put on her seatbelt, drive, carry her children, take out her
cellphone from her back pocket and take pictures, and put a helmet on her
5
The jury trial commenced in May 2018.
16
child. Spearman was not wearing a glove in the surveillance video.
The jury was presented with a general verdict form in which the two
causes of actions—Jones Act negligence and unseaworthiness—were
presented to the jury but did not contain interrogatories as to the four distinct
theories of liability. Royal Caribbean did not object to the verdict form. The
general verdict form asked the jury to answer the following questions: (1)
was there negligence on the part of Royal Caribbean that was a legal cause
of damage to Spearman; and (2) was the Voyager unseaworthy in any
manner that was a legal cause of damage to Spearman. The jury answered
“yes” to both of these questions. The verdict form instructed the jury that if it
answered “no” to both questions, the verdict was for Royal Caribbean, but if
it answered “yes” to either or to both questions 1 and 2, to answer question
3, which stated: (3) Was there negligence on the part of Spearman that was
a legal cause of her damage. The jury answered question 3 “no.” As the
jury answered “no” to question 3, the jury was not required to apportion fault
between Royal Caribbean and Spearman. The jury awarded the following
damages to Spearman, totaling $20.3 million: $6,000,000 for past and
$6,000,000 for future bodily injury and resulting pain and suffering, disability,
physical impairment, disfigurement, mental anguish, inconvenience, and
loss of capacity for the enjoyment of life; $7,000,000 for future medical
17
expenses; $500,000 for lost earnings; and $800,000 for lost earning
capacity.
D. Post-trial Motions
Royal Caribbean filed a post-trial motion for new trial or remittitur,
arguing, in part, that the jury’s award indicates it is the result of bias,
prejudice and passion against Royal Caribbean; the jury’s verdict indicates
it misconceived the standard of care; the jury’s verdict is grossly excessive
when compared to awards for similar claimed damages; and the jury’s verdict
was disproportionate to the damages that Spearman sustained.
At the hearing on the motion for new trial or remittitur, Royal Caribbean
requested that the trial court remit the total award to $4,466,000. First, Royal
Caribbean did not take issue with the $500,000 awarded for lost earnings
and the $800,000 awarded for lost earning capacity. Second, Royal
Caribbean requested the trial court to remit the $6,000,000 for past and the
$6,000,000 for future bodily injury and resulting pain and suffering to
$1,000,000 each, for a total of $2,000,000 for non-economic damages.
Third, Royal Caribbean requested that the trial court remit the $7,000,000
award for future medical expenses to $1,166,000. In doing so, Royal
Caribbean noted that the jury awarded $833,533 more than Spearman
requested for future medical expenses. Further, Royal Caribbean asserted
18
that despite not taking issue with the amounts requested for therapeutic
evaluations, medical care, therapies, equipment, and transportation, it was
taking issue with the amounts requested for “attendant care” for twelve hours
per day for Spearman’s forty-year lifespan—approximately $5,000,000.
In support of its motion for remittitur, Royal Caribbean submitted,
among other things, (1) an exhibit reflecting amounts awarded in other cases
involving fractures, CRPS, and PTSD, and (2) an exhibit of cases involving
jury verdicts around $20,000,000. The highest verdict for a case involving
fractures, CRPS, and PTSD was $4,974,295, and in that case the plaintiff
sustained orthopedic, neurologic, and psychiatric injuries; underwent
cervical surgeries; and suffers from CRPS and PTSD. As to cases with jury
verdicts around $20,000,000, the exhibit reflects that plaintiffs in those cases
were severely injured—paraplegia; quadriplegia; amputated legs along with
severe burns; catastrophic brain damage requiring institutionalization seven
days a week for the rest of the plaintiff’s life; burns over 62% of plaintiff’s
body (requiring fifteen skin grafts), hearing impairment, the inability to
completely close left eye, and chronic tinnitus; severe brain injury, resulting
in the plaintiff only being able to grunt syllables, not being able to walk again,
and a reduction in his lifespan by forty years; and brain damage to a four
year old. Relying in part on the surveillance video, Royal Caribbean argued
19
that the injuries sustained by Spearman were not as severe as the injuries
to the plaintiffs who were awarded around $20,000,000 by a jury.
In arguing that Spearman’s injuries were not as severe as the injuries
sustained by the plaintiffs who recovered around $20 million, Royal
Caribbean’s counsel argued that the surveillance video reflects that
Spearman is “living her life, enjoying her life with her family.” The videos
reflect, among other things, that she is capable of driving an automobile,
caring for her child, 6 and using her hands, including her injured hand, to hold
items, open the car door, put her child in the car, and use her cellphone to
take photos of her child.
At the conclusion of the hearing, the trial court denied the motion for
new trial, but granted, in part, and denied, in part, Royal Caribbean’s motion
for remittitur, reducing the jury’s award for future medical expenses by
$833,533 (from $7,000,000 to $6,166,467).7 In ruling on the motion for
remittitur, the trial court stated: “I am a firm believer of the right to a trial by
jury. I am a firm believer of the jurors’ work. I am – I don’t have a sufficient
6
Following the accident, Spearman met her partner and gave birth to two
children.
7
The trial court reduced the future medical expenses to $6,166,467 because,
as stated earlier, that was the amount Spearman’s counsel requested the
jury to award based on Anderson’s testimony.
20
grasp of the CRPS syndrome to pass judgment on it.” The trial court
provided the parties with the option to reject or accept the remittitur. Royal
Caribbean rejected the remittitur in order to pursue the instant appeal. The
trial court entered a final judgment in accordance with the jury’s verdict.
Royal Caribbean’s appeal followed.
II. ANALYSIS
A. Whether the trial court abused its discretion in declining to remit the
jury’s $20.3 million award?
Royal Caribbean argues that the trial court abused its discretion in
denying, in part, its motion for remittitur. See R.J. Reynolds Tobacco Co. v.
Webb, 93 So. 3d 331, 336 (Fla. 1st DCA 2012) (holding that an appellate
court reviews the trial court’s denial of a motion for remittitur for an abuse of
discretion). As the trial court was required to consider the factors set forth in
the remittitur statute, section 768.74(5), prior to ruling on Royal Caribbean’s
motion for remittitur, but failed to do so, we remand with instructions for the
trial court to conduct a new hearing on the motion for remittitur to address
the factors.
Royal Caribbean filed the motion for remittitur pursuant to section
768.74 of the Florida Statutes. Section 768.74(6) states that the Legislature
has vested trial courts with the discretion to review the amount of damages
awarded by a jury based on a set of criteria, which review will provide “an
21
additional element of soundness and logic” to Florida’s judicial system.
Further, section 768.74(1) provides that, upon a proper motion, “it shall be
the responsibility of the [trial] court” to review the amount of money
damages awarded by the jury “to determine if such amount is excessive or
inadequate in light of the facts and circumstances which were presented to
the trier of the fact.” (emphasis added). Section 768.74(5) sets forth the
following five criteria the court “shall consider” in determining whether the
jury’s damage award is excessive or inadequate:
(a) Whether the amount awarded is indicative of prejudice,
passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the
evidence in reaching a verdict or misconceived the merits of the
case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of
damages into account or arrived at the amount of damages by
speculation and conjecture;
(d) Whether the amount awarded bears a reasonable
relation to the amount of damages proved and the injury suffered;
and
(e) Whether the amount awarded is supported by the
evidence and is such that it could be adduced in a logical manner
by reasonable persons.
We have reviewed the transcript of the hearing on the motion for
remittitur, and it is clear that, despite being required to consider the factors
set forth in section 768.74(5) when ruling on Royal Caribbean’s motion for
remittitur, the trial court failed to do so. Rather than considering these factors
in ruling on the motion for remittitur, the record demonstrates that the trial
22
court informed the parties that it is “a firm believer of the jurors’ work,” and
that it did not “have a sufficient grasp of the CRPS syndrome to pass
judgment on it.” Therefore, we remand this cause to the trial court with
instructions for the trial court to conduct a new hearing on Royal Caribbean’s
motion for remittitur to address the factors set forth in section 768.74(5).8
B. Whether under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), and section 90.702 of the Florida Statutes, the trial
court abused its discretion by allowing expert testimony regarding the
CAD prototype?
Royal Caribbean argues that the trial court abused its discretion by
allowing Spearman’s liability experts to testify as to the CAD prototype under
Daubert, and therefore, it is entitled to a new trial. 9 Spearman argues that
this Court is precluded from addressing this issue under the “two-issue rule.”
We agree with Spearman.
i. Whether the “two-issue rule” bars review of the jury’s
verdict in favor of Spearman?
The Florida Supreme Court adopted the two-issue rule in Colonial
Stores, Inc. v. Scarbrough, 355 So. 2d 1181 (Fla. 1977). The two-issue rule
8
We take no position as to Royal Caribbean’s motion for remittitur.
9
A trial court’s decision to admit or exclude expert testimony is reviewed for
an abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997).
23
provides that “where there is no proper objection to the use of a general
verdict, reversal is improper where no error is found as to one of two issues
submitted to the jury on the basis that the appellant is unable to establish
that he has been prejudiced.” 10 Whitman v. Castlewood Int’l Corp., 383 So.
2d 618, 619 (Fla. 1980) (noting that the Florida Supreme Court adopted the
two-issue rule in Colonial Stores).
In addressing the two-issue rule, the Florida Supreme Court in Barth
v. Khubani, 748 So. 2d 260 (Fla. 1999), stated:
When a general verdict for the plaintiff is on review, the rule is
applied by focusing on the causes of action, such that an
appellate claim of error raised by the defendant as to one cause
of action cannot be the basis for reversal where two or more
theories of liability (or causes of action) were presented to the
jury.
Id. at 261 (footnote omitted). The two-issue rule “is based on the principle
that reversal is improper when no error is found as to one of the issues that
can independently support the jury’s verdict.” Id. at 261 (citing Colonial
Stores, 355 So. 2d at 1186 ). The two-issue rule is applicable if the jury could
have ruled on a theory of liability that is not affected by an issue raised on
10
In its reply brief, Royal Caribbean correctly stated that the jury verdict was
a “general verdict form.” See Turner v. Fitzsimmons, 673 So. 2d 542, 534
n.1 (Fla. 1st DCA 1996) (“A special verdict, as distinguished from a general
verdict, is one in which the jury in a civil case resolves the disputed facts in
separate findings based on the evidence presented to it, referring the
decision on the facts found as a matter of law to the court.”).
24
appeal. See Chua v. Hilbert, 846 So. 2d 1179, 1182 (Fla. 4th DCA 2003).
As stated earlier, within her two causes of actions—Jones Act
negligence and unseaworthiness—Spearman presented four theories of
liability—defective design of the A-60 SWTD; negligent training; failure to
warn, such as a warning sticker on the door; or negligence of the nurse
improperly overriding Bridge Control. The general verdict form required the
jury to resolve the two causes of actions, but did not require the jury to
indicate which alternate theories were resolved in favor of which party. See
Marriott Int’l, Inc. v. Perez-Melendez, 855 So. 2d 624, 627 (Fla. 5th DCA
2003) (applying the two-issue rule after noting that “[e]ncased within the
same count of the complaint are four separate theories of liability”); Variety
Child.’s Hosp., Inc. v. Perkins, 382 So. 2d 331 (Fla. 3d DCA 1980) (holding
that because the general verdict form does not reveal whether the jury found
against the hospital because of the actions of the residents, the nurses, or
both, this Court was “compelled conclusively to presume that the verdict was
grounded, at least in part, on the nurses’ negligence, as to which it is
conceded there was no error committed below”). As such, we conclude that
the two-issue rule precludes this Court from reversing on Royal Caribbean’s
claimed error relating to the admission of expert testimony of the CAD
prototype under Daubert.
25
ii. Introduction of expert testimony regarding CAD prototype 11
Although we concede that the two-issue rule precludes this Court from
reversing on Royal Caribbean’s claimed error relating to the admission of
expert testimony as to the CAD prototype, we nonetheless address the issue
because the testimony as to the safer alternative design was a significant
part of Spearman’s argument relating to Royal Caribbean’s liability 12 and
because addressing the issue will provide guidance when the issue arises in
other similar cases.
Royal Caribbean argued that the trial court abused its discretion by
permitting Van Iderstine and Sullivan to testify as to the CAD prototype,
arguing that their testimonies do not satisfy the Daubert standard. 13
Although we cannot reverse as to this issue, we agree with Royal Caribbean.
“The proponent of expert testimony must, when properly challenged,
establish the basis for its admissibility by a preponderance of the evidence.”
11
A trial court’s decision to admit or exclude expert testimony is reviewed for
an abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997).
12
As stated earlier, the jury asked, “How much would it cost for Royal
Caribbean to modify the door, and why wasn’t it done[?]”
13
The Daubert standard is derived from Daubert, Joiner, and Kumho Tire
Co. v. Carmichael, 526 U.S. 137 (1999).
26
Baan v. Columbia Cnty., 180 So. 3d 1127, 1131-32 (Fla. 1st DCA 2015).
Section 90.702 codifies the Daubert standard, setting forth the requirements
to admit expert opinion, and provides as follows:
If scientific, technical, or other specialized knowledge will assist
the trier of fact in understanding the evidence or in determining a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify about it in the form
of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and
methods; and
(3) The witness has applied the principles and methods reliably
to the facts of the case.
Section 90.702, which was amended in 2013, is patterned after Rule 702 of
the Federal Rules of Evidence as amended in 2000. 14 See Ch. 2013-107,
Laws of Fla. The Florida Legislature’s reason for amending section 90.702
was to adopt the standards for expert testimony” as provided in Daubert,
Joiner, and Kumho Tire, and to no longer apply the standard in Frye, and to
prohibit “pure opinion testimony as provided in Marsh v. Valyou, 977 So. 2d
543 (Fla. 2007)[.]” Ch. 2013-107, Laws of Fla.; see also In re: Amendments
to Fla. Evid. Code, 278 So. 3d 551, 552-54 (Fla. 2019) (receding “from the
14
As section 90.702 is patterned after Rule 702 of the Federal Rules of
Evidence, federal cases are persuasive authority when interpreting section
90.702. See Vitiello v. State, 281 So. 3d 554, 560 n.8 (Fla. 5th DCA 2019).
27
Court’s prior decision not to adopt the Legislature’s Daubert amendments to
the Evidence Code”).
“Daubert’s general holding—setting forth the trial judge’s general
‘gatekeeping’ obligation—applies not only to testimony based on ‘scientific’
knowledge, but also to testimony based on ‘technical’ and ‘other specialized’
knowledge,” including those of engineers, as in the instant case. Kumho,
526 U.S. at 141. Under Daubert, expert testimony is admissible if it is both
relevant and reliable. See Vitiello, 281 So. 3d at 560. The United States
Supreme Court explained in Daubert that the trial court is tasked with being
the “gatekeeper” to “ensur[e] that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at
597; see also Kumho Tire, 526 U.S. at 152 (noting that the purpose of the
gatekeeping requirement is to ensure that the expert “employs in the
courtroom the same level of intellectual rigor that characterizes the practice
of an expert in the relevant field”); Sanchez v. Cinque, 238 So. 3d 817, 823
(Fla. 4th DCA 2018) (noting that a “court’s gatekeeping function requires
more than simply taking the expert’s word for it”) (internal quotation marks
omitted). Under this gatekeeping authority, “[a] trial judge must make ‘a
preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that reasoning or
28
methodology properly can be applied to the facts in issue.’” Kemp v. State,
280 So. 3d 81, 88 (Fla. 4th DCA 2019) (quoting Daubert, 509 U.S. at 592-
93); see also Baan, 180 So. 3d at 1133. However, as noted in Daubert,
“[v]igorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
The Daubert Court set forth a list of five factors a lower court may
consider to determine whether the expert’s testimony is reliable: (1) whether
the “theory or technique . . . can be (and has been) tested”; (2) whether the
theory or technique “has been subjected to peer review and publication”; (3)
the “known or potential rate of error” of the theory or technique; (4) “the
existence and maintenance of standards controlling [the theory’s or
technique’s] operation”; and (5) whether the theory or technique has
“attracted widespread acceptance within a relevant scientific community.” Id.
at 592-94. These factors do not constitute a “definitive checklist or test.” Id.
at 593. Further, “an expert’s opinion must be based upon ‘knowledge,’ not
merely ‘subjective belief or unsupported speculation.’” Kemp, 280 So. 3d at
89 (quoting Daubert, 509 U.S. at 590). However, “rejection of expert
testimony under Daubert ‘is the exception rather than the rule.’” Vitiello, 281
So. 3d 554, 560 (Fla. 5th DCA 2019) (quoting Fed. R. Evid. 702 advisory
29
committee’s note to 2000 amendment).
In the instant case, at issue is whether the experts’ testimony relating
to the CAD prototype is reliable. 15 As such, we address the reliability factors
set forth in Daubert.
The experts’ affidavits indicate that there has been no testing of the
CAD prototype. We do not take issue with Van Iderstine’s theory that the
CAD prototype appears to eliminate the pinch point that caused the injuries
to Spearman’s fingers. This standing alone does not necessarily mean that
expert testimony as to the CAD prototype passes the Daubert standard. We
cannot ignore that any SWTD, such as the A-60 SWTD, is not merely a
simple door. Rather, it is a safety door on an oceangoing vessel that must
be able to withstand water and fire for sixty minutes to ensure the safety of
passengers. Van Iderstine’s affidavit includes conclusory statements that
the design of the CAD prototype “would not adversely impact the stiffness or
soundness of the existing design,” however, he has failed to support his
opinion with any type of testing. Van Iderstine’s unsupported speculation is
not sufficient to pass muster under Daubert. See Perez v. Bell S.
Telecomms., Inc., 138 So. 3d 492, 499 (Fla. 3d DCA 2014) (holding that
15
The parties do not dispute that Van Iderstine is qualified as an engineering
expert or that his testimony, along with that of Sullivan, is relevant.
30
“[s]ubjective belief and unsupported speculation are henceforth
inadmissible”). Van Iderstine stated in his affidavit that the cutout in his
alternative design “simply changes the shape of one portion of the door and
door frame.” Basically, Van Iderstine has attempted to portray his alternative
design as a simple change that will not affect the integrity of the door or the
door’s capability to withstand fire and water for sixty minutes, as required.
Before any model of a SWTD can be installed on a cruise ship, the specific
model must undergo certain industry testing. The SWTD model is placed in
a furnace and must be able to withstand temperature of 1,700 degrees
Fahrenheit for sixty minutes before being compromised. The rigorous testing
is there for a purpose—to protect the safety and lives of those onboard
oceangoing vessels. Sullivan’s opinion that the CAD prototype would be
“approved by a Classification society” is speculative, at best. In addition,
Van Iderstine’s alternative design exists only as a CAD prototype, and
therefore, it has not been subjected to peer review and there is no
information as to the “known or potential rate of error.” Finally, Van Iderstine
asserted in his affidavit that doors with cutouts exist on cruise ships, and
therefore, it is not a novel concept. However, there is not a single SWTD
utilized on an oceangoing vessel with a cutout similar to the cutout proposed
31
by Van Iderstine that changes the shape of the door, frame, and gasket. 16
Thus, based on the analysis of the factors set forth in Daubert, the trial court
abused its discretion by allowing Van Iderstine and Sullivan to testify as to
the CAD prototype. The inadmissible testimony of Van Iderstine and Sullivan
unfairly prejudiced Royal Caribbean, and the error would not have been
harmless. See Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1253 (Fla.
2014) (“[I]n a civil appeal, the test for harmless error requires the beneficiary
of the error to prove that the error complained of did not contribute to the
verdict. Alternatively stated, the beneficiary of the error must prove that there
is no reasonable possibility that the error complained of contributed to the
verdict.”). As such, although we cannot reverse on this issue based on the
two-issue rule, we note that the trial court should not have admitted any
testimony relating to the CAD prototype.
16
In paragraph 25 of his affidavit, Van Iderstine asserts that cutouts on ship
doors are not novel, referencing an A-60 SWTD manufactured by Parmarine,
which is the same manufacture of the A-60 SWTD at issue. Van Iderstine
noted that Parmarine “markets A-60 fire doors that have cutouts in the door
itself so that ducts or hoses can be in the doorway while still allowing the
door to open and close.” The A-60 SWTD differs from the CAD prototype
because the cutout on the CAD prototype is on the frame of the door,
whereas the cutout on the A-60 SWTD is on the bottom of the door itself.
The door proposed in Van Iderstine’s CAD prototype has never been
manufactured, and therefore, never tested to determine that it can withstand
temperature of 1,700 degrees Fahrenheit for sixty minutes before being
compromised.
32
The remaining argument relating to Spearman’s testimony as to a
statement made by a security officer lacks merit and does not warrant
discussion.
Affirmed but remanded for further proceedings.
33
Royal Caribbean Cruises, Ltd. v. Spearman
Case No. 3D18-2188
LOGUE, J., concurring.
I fully concur in the majority opinion. I write only to further address why
the two-issue rule bars review of Royal Caribbean’s challenge to the jury’s
verdict which underlines the $19,466,467 judgment in this case.
Spearman alleged, presented evidence, requested jury instructions,
and argued in opening and closing to the jury regarding her claims that Royal
Caribbean was negligent or provided an unseaworthy ship based on four
separate theories of liability regarding her crushed right hand: defective
design, negligent training, failure to warn, and co-worker’s negligence. More
particularly, Spearman’s four distinct theories were:
• A Semi-Watertight door could be designed to eliminate the “pinch
point” or “draw in” hazard;
• Royal Caribbean failed to train the ship’s crew on how to avoid
the Semi-Watertight door’s “pinch point” or “draw in” hazard;
• The Semi-Watertight door at issue lacked a warning sign
regarding the “pinch point” or “draw in” hazard; and
• The nurse, whose rescue by Spearman led to Spearman’s
injuries, was negligent when she improperly opened the door
during a safety drill and then tripped over a rising door flap while
carrying boxes.
34
Although Spearman presented four separate causes of action, the case was
presented to the jury on a general verdict. In our majority opinion, we
conclude Spearman’s expert testimony that an adequate Semi-Watertight
door could be designed without the “pinch point” hazard was speculative and
therefore inadmissible.
That conclusion, however, bears only on Spearman’s cause of action
based on an alternative design of the door. Even if accepted, that argument
would not negate the other three theories of liability presented to, and
presumably accepted by, the jury. For this reason, appellate review of the
jury’s verdict is barred by Florida’s two-issue rule.
I. Facts and Procedural Background
According to Spearman’s version of events, which the jury accepted
and we must therefore assume is true to the extent it is supported by
competent substantial evidence, Spearman’s hand was crushed during a
safety drill in which the ship’s bridge was practicing remote closing of the
ship’s safety doors, including all of the Semi-Watertight doors. These doors
are contained in a recess or pocket on the side of the doorway from which
they slide when the doors are closed and sealed. During the drill, the ship’s
crew members are forbidden to use the doors. Spearman was standing in
front of a closed Semi-Watertight door during a drill when the door suddenly
35
opened and a co-worker, a nurse, who had opened the door during the drill
contrary to regulations, stepped into the door carrying boxes, and tripped on
a flap strip that rises from the floor as the door closes to complete the seal.
Having watched videos of how the closing and sealing of Watertight
doors, a related but more powerful door, crushes human bodies, Spearman
reacted to the nurse’s trip and fall by reaching forward and pressing down
the door handle to override the remote door closing. She depressed the
handle and kept the handle down as is required for the lever that controls
Watertight doors. Unfortunately, the proper practice for Semi-Watertight
doors is to depress the handle and immediately remove your hand, as
depressing the handle causes the pneumatically powered door to rapidly
return to its recess pocket, which it did in this instance, drawing Spearman’s
hand with it. This “pinch point” or “draw in” hazard was known to Royal
Caribbean.
The majority opinion comprehensively discusses the expert testimony
regarding the possibility of redesigning the door to eliminate the pinch point.
In addition to the evidence of the alleged design defect, however, Spearman
presented three other theories of negligence.
Spearman also presented evidence that, whether or not the door could
be designed without a pinch point, Royal Caribbean was negligent in failing
36
to train its crew members on how to avoid the hazard. Royal Caribbean
trained crew members how to avoid the danger presented by Watertight
doors and Fire doors, but not how to avoid the Semi-Watertight door’s unique
pinch point danger. Spearman introduced training videos showing that a
person using a Watertight door must continue to depress the lever to keep
the door from closing. The video included an animation of the door crushing
a person who attempted to pass through it while the lever was released. But
the Semi-Watertight door requires a person to press the handle down and
immediately release it to avoid having her hand drawn into the recess.
On this point, Spearman elicited testimony from Captain Paskavlin, a
senior Royal Caribbean ship officer, that new employees were brought to
and trained on a Fire door and Watertight door but not a Semi-Watertight
door. During closing argument, counsel for Spearman reiterated:
But [the crew] only got trained on watertight doors and fire
doors. Everyone who took the stand agreed, Royal Caribbean
did not train its crew members on semi-watertight doors.
...
[I]t is the only door of all three doors that Royal Caribbean
does not train on.
Now I ask you, is that reasonable? Because you’ll get a
jury instruction asking you to evaluate the conduct in this case
for both parties to determine whether it was reasonable. And I
would submit to you that that was unreasonable on behalf of
Royal Caribbean.
37
In addition to the evidence of the alleged design defect and negligent
training, Spearman also presented evidence that Royal Caribbean failed to
place a warning sign on the Semi-Watertight door regarding the pinch point
hazard. The door’s user manual, which was submitted into evidence and
read to the jury both during Spearman’s presentation and closing argument,
stated, “[a]t the beginning, the speed of the opening movement is very fast.
Watch your fingers, you may lose them.” On this point, the trial court took
judicial notice and instructed the jury that twelve prior incidents involving
such safety doors occurred under “substantially similar circumstances,
conditions, and causes to the accident in dispute.” Finally, Spearman
testified that immediately after her injury, “[Security Officer Cooke] said to me
that ‘These types of injuries have happened before on doors onboard.’”
Despite notice of potential injury, the operation sticker placed on the door
bore no warning of the potential pinch point, instead it instructed a person
wishing to open the closed door to press the lever and “slide the door open.”
During closing argument, Spearman argued that Royal Caribbean was
negligent in failing to place a warning sign on the door. Counsel for
Spearman argued to the jury that “Royal Caribbean knew that [workers had
been injured by the door’s pinch point], but the people who are actually
38
operating the doors did not know that.” Showing a picture of the door,
Spearman argued,
Look how much space there is to have warnings right here.
There are no warnings on this door that in any way let people
know that this door is a pinch[]point, draw-in hazard. If this handle
goes over here to the pocket, if you’re trying to open this door
and it takes your hand, you could lose your fingers.
The warning manual lets people know that there’s enough
of a hazard if your fingers get pulled in. But there’s nothing on
this door that actually would warn someone of that.
Finally, Spearman also presented evidence that the nurse—a Royal
Caribbean agent—violated the ship’s safety protocol by attempting to pass
through the door during the safety drill. During closing argument, counsel for
Spearman focused heavily on her agency negligence claim asserting,
“[Spearman] was following her training when she was put in a position by a
fellow crew member, employee, agent of Royal Caribbean, [the nurse],” who
was “breaking the rules.” The nurse “violated her training by going through a
door that she knew or had reason to know was under bridge control.” In
closing, Spearman made a point of tying these theories of liability to both the
Jones Act negligence claim and the unseaworthiness claim.
Without objection, the jury was presented with a general verdict form
which neither listed nor asked the jury to make a specific finding as to each
39
theory of liability. 17 The jury returned the verdict for Spearman under both
the Jones Act negligence and unseaworthiness claims. The jury awarded
Spearman $20.3 million which the trial court reduced to $19,466,467. The
trial court denied Royal Caribbean’s motion for a new trial. This appeal
followed.
II. Discussion
a. The two-issue rule.
The two-issue rule provides that “where there is no proper objection to
the use of a general verdict, reversal is improper where no error is found as
to one of two issues submitted to the jury on the basis that the appellant is
unable to establish that he has been prejudiced.” Whitman v. Castlewood
Int’l Corp., 383 So. 2d 618, 619 (Fla. 1980) (citing Colonial Stores, Inc. v.
Scarbrough, 355 So. 2d 1181, 1186 (Fla. 1977)). When at least one issue is
left unchallenged and the defendant does not request a special interrogatory
verdict, an appellate court is “compelled conclusively to presume that the
17
The verdict form asked four questions on liability: (1) whether there was
negligence on the part of Royal Caribbean that was a legal cause of damage
to Spearman; (2) whether the vessel was unseaworthy in a manner that was
a legal cause of damage to Spearman; (3) whether Spearman was negligent;
and (4) what was the comparative percentage of negligence of the parties.
The jury answered “yes” on first two questions, “no” on the third, and did not
apportion any percentage under comparative fault to Spearman. The
remaining questions concerned the itemization of damages.
40
verdict was grounded, at least in part,” on the unchallenged theory under
which no error occurred. Variety Child.’s Hosp., Inc. v. Perkins, 382 So. 2d
331, 334 (Fla. 3d DCA 1980).
“The rule is based on the principle that reversal is improper where no
error is found as to one of the issues that can independently support the
jury’s verdict.” Barth v. Khubani, 748 So. 2d 260, 261 (Fla. 1999). “[T]he rule
is an economical tool that limits appellate review to issues that actually affect
the case.” Id. “The policy behind the ‘two issue’ rule is similar to that
underlying the harmless error rule.” Food Lion, L.L.C. v. Henderson, 895 So.
2d 1207, 1209 (Fla. 5th DCA 2005).
The two-issue rule is applied by analyzing whether the jury could have
ruled on a theory of liability that is not the subject of an appellate challenge.
See Chua v. Hilbert, 846 So. 2d 1179, 1182 (Fla. 4th DCA 2003). Essentially,
if the jury is given several theories of liability—any one of which would result
in a complete determination of fault—and finds liability generally, the two-
issue rule prevents appellate review when the alleged trial court error only
affects one of the theories without negating the others. The rule only applies
when the different theories of liability seek the same damages.18 It does not
18
The rule does not apply, for example, when a plaintiff’s first claim was that
a developer misrepresented that property was oceanfront and the plaintiff’s
second claim was that the developer failed to complete a nature trail: the first
41
apply to a single cause of action’s different components such as breach of
duty and proximate cause. 19
b. Spearman’s claims qualify as “different legal theories (or
causes of action)” under the two-issue rule.
Royal Caribbean seeks to avoid the two-issue rule by characterizing
the theories of liability in this case as the Jones Act claim and the
unseaworthiness claim. Royal Caribbean accurately notes that “the
testimony that the door was defectively designed . . . went to both the Jones
Act negligence and unseaworthiness claims.” It then argues that “the
alternative incidents of negligence that [Spearman] presented to the jury
(lack of training, . . . lack of a warning sticker, nurse’s failure to follow
procedure, etc.) . . . were not alternative causes of action.” Instead, it
maintains, Royal Caribbean would have a duty to train or warn about the
Semi-Watertight door’s “pinch point” or “draw in” hazard only if the door was
defectively designed. Therefore, it argues, “[b]ecause both the Jones Act
claim entailed greater damages than the second claim. First Interstate Dev.
Corp. v. Ablanedo, 511 So. 2d 536, 538 (Fla. 1987) (“This rule applies to
those actions that can be brought on two theories of liability, but where a
single basis for damages applies. For instance, in products liability, the claim
can be brought on both negligence and breach of implied warranty, but the
measure of damages for the resulting personal injury is the same.”).
19
See Grenitz v. Tomlian, 858 So. 2d 999, 1006 (Fla. 2003) (“[T]he two-issue
rule does not apply where, as here, the two ‘defenses’ involved comprised
separate elements of proof (breach of duty and proximate cause) necessary
for the plaintiffs to prevail on a single cause of action (negligence).”).
42
negligence and the unseaworthiness claims—the only two claims submitted
to the jury in the general verdict form—were affected by the improper
admission of expert testimony . . . , the two-issue rule does not apply.”
The majority properly rejects this argument. In the first place, the safety
protocols that the nurse violated were in effect at the time of the accident and
did not depend on a finding that the door was defectively designed. The
nurse had a duty to obey the safety rules whether or not the door had a
design defect. Royal Caribbean simply elides over this important feature of
the trial. Similarly, even if the “pinch point” or “draw in” hazard of the door
was not indicative of a defective design (which Royal Caribbean argued to
the jury), Royal Caribbean would still have a duty to train staff and post
warnings so the known hazard could be avoided.
More importantly, Royal Caribbean contends that Spearman’s claims
traveled under the umbrella of unseaworthiness and Jones Act negligence
and therefore cannot be further classified into four separate theories of
liability for purposes of the two-issue rule. This argument cannot be
reconciled with the cases. Application of the two-issue rule does not turn on
whether different causes of action are pled within the same count or counts
of the complaint. Application of the two-issue rule looks instead to the
substance of the theories of liability. Royal Caribbean’s argument to the
43
contrary is not supported by the Supreme Court’s decision in Barth and
conflicts with the decisions of other district courts.
Barth never held that the focus of the two-issue rule was on “causes of
action” in contradistinction to “theories of liability.” Instead, even in the one
sentence from Barth relied upon so heavily by Royal Caribbean, the
Supreme Court held the focus was on “theories of liability (or causes of
action)”:
When a general verdict for the plaintiff is on review, the rule is
applied by focusing on the causes of action, such that an
appellate claim of error raised by the defendant as to one cause
of action cannot be the basis for reversal where two or more
theories of liability (or causes of action) were presented to the
jury.
748 So. 2d at 261 (emphasis added). In treating the terms as
interchangeable for purposes of the two-issue rule, the Court was merely
following generally accepted legal usage. A “cause of action” refers to “a
legal theory of a lawsuit.” Bryan A. Garner, A Dictionary of Modern Legal
Usage 140 (2d ed. 1995); see also Cause of Action, Black’s Law Dictionary
(11th ed. 2019) (same). Contrary to Royal Caribbean’s argument, therefore,
the Court in Barth was referring to the allegations that give rise to
substantively separate legal obligations or defenses, not merely the
headings of various counts in a complaint.
44
Similarly, in Chua, the Fourth District applied the two-issue rule to
uphold a general verdict for the plaintiff in a medical malpractice case. 846
So. 2d at 1182. In the appeal, the defendant challenged the admission of
testimony relating to alleged negligent performance of the surgery at issue.
The court held that the verdict could be supported by the alternative theory,
also presented to the jury, of lack of informed consent. Id. The court applied
the two-issue rule even though it acknowledged “the informed consent claim
was pleaded under the same heading as the negligent performance issues”
because “lack of informed consent is really a separate theory of liability and
is different from an alternative theory of negligent performance of a surgical
procedure.” Id.; see also Marriott Int’l. Inc. v. Perez-Melendez, 855 So. 2d
624, 626 (Fla. 5th DCA 2003) (applying two-issue rule after observing that
“[e]ncased within the same count of the complaint are four separate theories
of liability”). Royal Caribbean’s argument that the two-issue rule focuses only
on “causes of action” in contradistinction to “theories of liability” is in direct
conflict with the language of Barth and with the Fourth District’s holding in
Chua and the Fifth District’s holding in Perez-Melendez.
Turning then to the substance of Spearman’s claims, she presented
four different theories of negligence under the umbrella of her Jones Act and
unseaworthiness claims: defective design, negligent training, failure to warn,
45
and co-worker’s negligence. These claims present separate and distinct
“theories of liability (or causes of action)” of the sort that have been held to
come within the two-issue rule. See, e.g., Whitman, 383 So. 2d at 619
(applying two-issue rule to general verdict for plaintiff where the different
theories of liability were failure to provide safe premises for invitee and
negligence of agent in committing act); Henderson, 895 So. 2d at 1208
(applying two-issue rule to general verdict for plaintiff where the different
theories of liability were failure to maintain property and failure to warn);
Perez-Melendez, 855 So. 2d at 627 (applying two-issue rule to general
verdict for plaintiff where the different theories of liability were failure to
maintain property, failure to correct dangerous condition, and failure to
warn). 20 I do not see how Spearman’s claims can meaningfully be
distinguished from these similar claims which were found to be subject to the
two-issue rule.
20
See also Barth, 748 So. 2d at 261 (applying two-issue rule to general
verdict for defendant in breach of contract action where the different theories
of defense were no contract, failure of condition precedent, and statute of
frauds); Colonial Stores, 355 So. 2d at 1185 (applying two-issue rule to
general verdict for plaintiff where the different theories of liability were
malicious prosecution and false imprisonment); Johnson v. Thigpen, 788 So.
2d 410, 412 (Fla. 1st DCA 2001) (applying two-issue rule to general verdict
for plaintiff when the different theories of liability were assault, battery, false
imprisonment, and intentional infliction of emotional distress).
46
In sum, because the jury was presented with separate “theories of
liability (or causes of action),” Barth, 748 So. 2d at 261, and returned only a
general verdict, “it is impossible to determine on which theory the jury
predicated liability . . . . Therefore, it is appropriate to apply the two-issue rule
in this instance.” Perez-Melendez, 855 So. 2d at 627.
c. The Challenged Expert Testimony Did Not Prejudice the
Jury Regarding Spearman’s Other Theories of Liability.
Finally, Royal Caribbean seeks to avoid the application of the two-
issue rule by contending that the improper admission of the expert’s
testimony regarding the ability to redesign the door “was so highly prejudicial
. . . that it affected the entire trial, rendering the two-issue rule inapplicable.”
For this contention, Royal Caribbean relies on Browning v. Lewis, 582 So.
2d 101 (Fla. 2d DCA 1991).
In Browning, a mother sued an obstetrician for negligence resulting in
injuries to her infant during birth. The obstetrician introduced testimony that
the mother engaged in illegal drug use:
That testimony involved a particular occasion of both drug and
alcohol use before the mother knew she was pregnant and
indicated that the mother had drunk a lot, at least on that
occasion, before she had become aware of her pregnancy and
had reduced her intake to only beer and less beer than before.
Id. at 101. After determining that the evidence was improperly admitted, the
appellate court declined to apply the two-issue rule because the evidence
47
was “highly prejudicial to [the] plaintiff’s entire case.” Id. at 102 (citing Kane
Furniture Corp. v. Miranda, 506 So. 2d 1061, 1067 (Fla. 2d DCA 1987)).
Reading Browning in context with Kane Furniture, it is evident that
testimony only becomes prejudicial enough to prevent application of the two-
issue rule when the evidence is so inflammatory as to tend to influence the
jury to make its decision based on emotion rather than logic. In Kane
Furniture, a husband sued the employer of a vehicle driver for negligence
after a fatal car accident resulting in the death of his wife. The husband
presented “repetitive, highly emotional” testimony about the loss of his wife:
Miranda presented four different witnesses who testified as to the
good-natured disposition of the decedent and the loving family
relationship of the Mirandas. Miranda presented detailed
testimony concerning the family’s reaction to decedent’s death.
He presented a slide show which, among other things, depicted:
the Miranda’s wedding; a daughter’s graduation; Christmas;
family birthday celebrations; visits to Disney World and
SeaEscape; and decedent’s casket.
Kane Furniture, 506 So. 2d at 1067. The appellate court determined that the
cumulative effect of this highly emotional evidence “deprived Kane of a fair
trial . . . [because] ‘[m]ere sympathy cannot sustain a judgment . . . the jury
system should not function on emotion, but on logic.’” Id. (quoting Fla.
Patient’s Comp. Fund v. Von Stetina, 474 So. 2d 783, 790 (Fla. 1985)).
The evidence presented by Spearman was not emotional, but rather
highly technical. The challenged expert testimony was intended to show the
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jury that Royal Caribbean had the option to install a safer door. Unlike the
evidence of an expectant mother taking drugs and drinking during pregnancy
as presented in Browning, or the emotional devastation of a mourning family
as shown in Kane Furniture, this evidence would not normally tend to inflame
the passions of the jury. See Fla. Motor Lines, Inc. v. Bradley, 164 So. 360,
364 (Fla. 1935) (Brown, J., dissenting in part) (“If the exhibition does not tend
to instruct the jury, but only to excite their sympathies or inflame their
passions, it should not be permitted.”). The instructional nature of the
evidence is reflected in a question submitted by the jury in response to the
evidence. Far from showing a passionate response, the jury asked the most
logical question a person presented with such evidence would likely ask:
“How much would it have cost for Royal Caribbean to modify the door and
why wasn’t it done?”
The two-issue rule, therefore, applies and precludes appellate
consideration of Royal Caribbean’s challenge to the expert’s testimony
regarding an alternative design to the Semi-Watertight door.
49