United States District Court, S.D. Florida
J. OSULLIVAN UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Plaintiffs Motion for New
Trial (DE# 173, 1/26/18).
decision to grant a new trial pursuant to Rule 59(a)(1)(A) of
the Federal Rules of Civil Procedure is within the
Court's discretion. Burger King Corp. v. Mason,
710F.2d 1480, 1486 (11th Cir. 1983). Rule 59(a)(1)(A) states
that a court may grant a motion for new trial "for any
reason for which a new trial has heretofore been granted in
an action at law in federal court." A Rule 59 motion for
new trial "is governed by a less stringent
standard" than "a renewed motion for judgment as a
matter of law under Rule 50(b)." George v. GTE
Directories Corp.. 195 F.R.D. 696, 701 (M.D. Fla. 2000).
When ruling on a Rule 59(a) motion for new trial, the trial
judge must determine "if in his opinion, the verdict is
against the clear weight of the evidence ... or will result
in a miscarriage of justice." Ins. Co. of N.A. v.
Valente, 933 F.2d 921, 923 (11th Cir. 1991) (quoting
Hewitt v. B.F. Goodrich Co.. 732 F.2d 1554, 1556
(11th Cir. 1984)).
plaintiff seeks a new trial because: (1) the Court allowed
evidence of the plaintiff's prior falls occurring in 2014
and 2015 and (2) the defendant's ADA expert, Jeffery
Gross, improperly rendered opinions interpreting ADA law.
See Plaintiff's Motion for New Trial (DE# 173,
1/26/18). The plaintiff is not entitled to a new trial for
the reasons stated below.
of the defendant's prior falls was relevant to the
instant case and was not unduly prejudicial. In Hiqqs v.
Costa Crociere S.D.A.. No. 16-12919, 2017 WL 6336894, at
*2 (11th Cir. Dec. 12, 2017), the Eleventh Circuit ruled that
"the district court abused its discretion in excluding
evidence of [the plaintiff]'s prior falls because its
probative value was greater than any possible
prejudice." Specifically, the Eleventh Circuit noted
The defendant's ability to present alternate causes is of
paramount importance in allowing for an adequate
defense." Aycock v. R.J. Reynolds Tobacco Co..
769 F.3d 1063, 1069-70 (11th Cir. 2014) (noting that because
under Florida law, a plaintiff has the burden on all four
elements of negligence, courts treat evidence presented by
plaintiffs differently than evidence produced by defendants
to rebut causation). The evidence was relevant and probative
of [the plaintiff]'s knowledge with regard to the cause
of her fall. Causation was an issue at trial, as well as the
liability of each party, and the damages. [The plaintiff] had
the burden of proving causation, and [the defendant] was
unable to challenge sufficiently her causative theory because
it was unable to present this evidence to diminish its
We also conclude that the evidence of prior falls was
relevant to the determination of comparative fault. The jury
found [the defendant] 85% liable and [the plaintiff] 15%
liable, and the jury's allocation of fault would have
been different if it had heard evidence of [the
plaintiff]'s prior falls. This evidence was also relevant
to damages because it would show her pre-existing conditions
and her propensity to fall.
Id. at *2-3. For the reasons stated in
Higgs. the defendant was properly permitted to
introduce evidence of prior falls. The fact that the jury
heard this evidence is not grounds for a new trial.
plaintiff also seeks a new trial on the ground that the
defendant's ADA expert improperly testified that the ADA
does not apply to moveable objects. Motion at 5-6. At trial,
Mr. Gross testified, in part, as follows:
Q. What does the - in terms of the ADA, what are the
standards regarding moveable objects in a place of public
A. In Section 28 CFR 36.406, Scope of Coverage, it states
that the standards only cover fixed and building objects.
Q. So even if there was a trash can in the position where
plaintiff says it was, would that be ...