it's of the prior falls coupled with this higgs own explanation as to why she had fallen in the past that explanation being that she simply had a tendency not to lift her feet enough and she  had a situation where she didn't lift her feet and that evidence was excluded that is an impermissible application of the law and that effectively shifted the burden by not allowing us to present evidence of an alternative cause what did the district judge when he ranted the motion and lemon and said i'm excluding that evidence how did he say he finds it's more prejudicial fallen before top tell us that arose assuming that's correct yes or so the judge said as i find it to be a four three problem i'm granting the motion so we went into the trial with the with the pre pretrial eliminate a ruling that there would be no evidence of prior falls in this case the judge did allow me to introduce that are correct words they were redacted to eliminate all mention of falls all mentions of cause of falls i wasn't allowed to use the deposition where she had admitted to a fall and explain the reasoning for the fall i wasn't allowed to use facebook postings where she had admitted that she had fallen in the reason asking you what happened when the plainest warrior what did he say and when did he say yes yes your honor so at the rebuttal portion of the closing argument for the last thing the jury is hearing plaintiff's counsel said on three separate occasions and you know mrs higgs is never fall in before and you know she doesn't stumble and fall all the time and something somewhere the third time three times on rebuttal where i didn't have a chance to contradict that it went to the jury you leaped up immediately and objected i did not your honor sadly i did not sadly i did not the case law indicates that at this point where you have a violation of violation of a court order that the plaine lawyer himself obtained and he willfully violates it not only does he will be violate a court order he puts in front of the jury not only facts not in evidence but factual issues are flat not true their lives they're not true way you have the chance to do several things you can have jacked you can wait till arguments over and ask for some kind of curative instruction there's a lot of things you could do i don't know why i shouldn't say you waive this because it's a trial it was within the time frame you're on i'm not sure exactly how many of them whatever yeah i'm not sure exactly how many days it was but was around within the timeframe there's no argument that it was untimely and the judge really in comment on it and his ruling on the motion for a new tr so essentially what we have under the a cock case and the court's well aware of the standards i know your honor judge paul has indicated in the boston scientific case most recently that this exclusion of evidence under four of three is strong medicine it has to be problem is she doesn't lift her foot high enough this is not tripping over the cell this is a bucket in the you know so i'm not sure that this is so highly probative it is your honor in the sense that it is evidence of an alternative explanation this was an accident which was an witness mrs ms higgs the only one she say she that says she tripped over a bucket and where as a defendant were entitled to put as part of our defense introduce evidence of alternative causes i e that she doesn't lift her feet high enough and that she has a tendency as she said in her facebook post of tripping over thin air and that she has a history well documented rock solid history of falling on multiple occasions one record which we weren't allowed to use as she had fallen once a month so we have alternate causation evidence which we were not allowed to present so is your theory that that one by could there it all go there was a bucket there was a bucket in the vicinity because she said i tripped i saw a bucket there but that's as good as it gets for miss higgs there was a bucket into the sea the question is was it open and obvious bucket was it in the right position did she trip over it or did she simply not lift her foot properly  and that's what caused the accident alternate causation additionally this evidence is super probative because it shows that ms higgs herself knew that she had a tendency to fall she this comparative fault which i wasn't allowed to provide to the jury so miss higgs is walking with two plates of food and maybe a drink and she knows that she has a fall at least once a month according to some of the records she admitted to me have mobility problems that they simply don't want to carry their food their attendance there that will bring the food from the buffet to the to the people's table out of hama's the bucket there it seems like and i had a common area like this that shouldn't be even if they're open in obvious busboy station or was it around the corner i said yes ma'am and that was the real question about where the bucket was ok so if there is a religion it reason for it to be in that area but she says it was around the corner hidden so when she came around the corner she kicked the bucket and that's what caused her to fall so that raises directly the question about what was the cause of the fall so we have the evidence which is directly highly probative as to alternative cause i e that she  used to call them special damages unless all your special damages your out of pocket damage and so i think they were about sixteen thousand dollars we would say you multiply that by five that's  that that would be a great judgment to have is i understand this jury came back and awarded one point three million plus dollars that hat if they get to that get to that you honor based upon factors outside the record they get to that based upon improper argument they get to that based upon the trial court not allowing me to tell the rest of the story only fans can you did they argue so much for pain and suffering have had it i did they asked for one point three how did they get them on why did i ask for a specific amount he started arguing about future medical expenses where there was no evidence about future medical expenses he was arguing about of loss of enjoyment of life where there was not much evidence about loss of enjoyment of life and i think that any figure like five hundred for pain and suffering he just now knows figures no there were no fit there was no definitive number submitted it was argument about miss ms being on the surgery table in the future where there was absolutely no evidence of future medical costs or argument that you did not object to at the time the argument i did object to believe the so much improper argument and judge responded the problem is plaintiff's counsel is weaving in and out of proper versus improper argument literally within the same sentence and it's nearly impossible to object to every single one of those things there was pain and suffering testimony though right she said she was in pain she said she was in pain the testimony was within two months that she actually had surgery she did have surgery she had once right away within about two weeks she had served surgery n p t over time there was testimony about that so yes but you say there is no testimony about future medical expenses you objected to that the judge told the jury disregard it and then the enjoyment of life you didn't do anything about that well he was entitled to argue about loss of enjoyment of life that's an element of all right why don't you tell me that was improper argument no no no he was arguing that when she is on the surgery table in the future she's not going to have an opportunity to come back to you and get compensation for that and there was no testimony about needing surgery in the future and you objected to that and got it curative instruction no your honor i believe the believe there was an objection to that i'm not i'm not one hundred percent sure enough but what i can tell the court was certainty is that there was no evidence of future medical costs in fact that was stricken from verdict form plaintiff's counsel insisted and argued and argued and argued that he didn't want that to go to the jury with that that stricken out that he wanted a clean verdict form without any reference to future medical expenses finally the judge relented judge connor lent it and typed up a new four for and then on closing argument plaintiff's counsel says you know when ms higgs is on that surgery table in the future she's not going to have another chance to come back and get any more money from you when she is with her and her shoulder deteriorates and those screws come loose she can't come back to you and get any more compensation so he got the pay the future pay the future medical expenses in through i call the back door and i thought you said you objected to that and the it was on that point or not i apologize if i was unclear but certainly he argued for future paid insta suffering and future medical expenses through the backdoor by by saying she's not to be able to come back to you when she's on that surgery table in the future that's improper argument i didn't object to that i don't believe your honor i don't believe it but again i believe that rises to the level of plain error just like a lawyer violating a pretrial order not only in injecting facts which aren't in the record rice is a level playing there but also injecting facts which is are not truth rises to the level of plain there i see it my time is over and if there's nothing  let me tell you if you get me to exclude prof halls and you stand up and tell the jury that she has no parra falls i'm going to sue us pontiff eclair mistrial i tried cases fourteen years i don't understand what are you thinking when you did that to have it from the transcript three times and it's very clear and they can't say a thing about it and that's fundamentally unfair do you agree with that i don't know why the waves are not but that is fundamentally unfair do you agree with wait a minute i thought she admitted she had fallen before in her deposition she said she had tripped and fallen she said she had slipped and fallen she never testified that she had just spontaneously fallen down which was a distinction that counsel for cost made in his closing argument that's not our distinction that's a distinction that i also for costa made in the record in his closing right here's what he said did you know that ms higgs has never fallen before never been injured before never had an accident before ok whether slept involved that's what he says right yes you know that's we've never been injured before is that a false statement that is yes ok never had an accident before is that a false  is six three pages later and she didn't fall down and stumble all the tar that when some of them are but she said in a deposition she had fallen once a month or something like that does she say that  doesn't interfere in this require a new trial for a number of reasons first of all as i just said we had a cognizable argument that that was not something that was excluded under the motion in limine because her spontaneously falling down for her knees giving way for example was not something that came up in her deposition occasion harnett that was a possible what could have happened here her niece could have given why she never said that in her deposition i know that but that's that if if that had happened to her quite a few times before they could have shown that could possibly have been a causation here right there if i had come in right yes but they didn't have evidence to that effect they had trip and fall slip and fall evidence they didn't have knees giving out falling down on and that she has tripped going up or down stairs and once in a car she doesn't have to follow it up enough yes your honor and once cheap she believes that she kicked the chair leg in her in her daughter's house and car self those are the only tell that's the only testimony she ga ok and that's not so he should she has fallen before fallen tripped and fallen and slipped a fuse had accidents before yes you are ok she's been injured before she said i'm following accidents she said that ten years before she tripped on some stairs and broke her foot more than ten years prior to this incident ok that's the last time she had medical attention for a fall as the last time she had medical attention for arca or to her deposition response to judge old question burlington northern case these arguments which were apparently so severe and egregious that trial went by numerous times without so much as a peep from costas experience trial counsel has thirty two years of experience trying cases maritime cases in southern district of florida and knows the rules and for whatever reason reasons only known only to him deliberately chose not to object multiple times and if you look at this court's past cases there are much more egregious things that have been said where this court has refused to has agreed that should have been struck if they had timely objected i would you be arguing at the bench you've already said have prior falls are irrelevant and they have nothing to do here so those who are different you just said that to me you just said rod this was not a law you say is not an accurate you would have been making that argument we didn't do anything wrong here we would have presented the argument at the bench to judge con that i just presented to your honor and perhaps judge conn would have overruled their objection perhaps he would have sustained it at which point they would have had a number of remedies at their disposal to ask for under the rules but they asked for none of them they did nothing they made not one sound in response to this argument which is apparently and i would jump out of time when i can and i don't have or a bottle now i would have jumped up right in the middle of that testimony am might have asked have to geragos out i might have raised it then and perfected the record although we have a lot of case law that deliberated for about ten or fifteen minutes we went home for the day we came back the next morning so counsel for costa had an entire afternoon and night to sleep on this and think about whether or not to go in the next morning and say judge i need a mistrial and decided not to do i've tried cases it's kind of a rule a culture of the place that you don't object during the argument i don't know what the rules are where the culture is where you are is that frowned upon where you are no no your honor it's not and in this coming up all the time during closing arguments some other counsel without a problem can yes your honor and in fact counsel for costa objected during our closing argument the objection that he made was to a different remark which pertain to mrs higgs deserve to be treated fairly he objected judge conses stain his objection so the only time they complained judge con gave them exactly what they wanted and then these other allegedly agree just comments are made and not so much of a not so much of a sound comes from counsel table from costa ruling our contention is not a stream the relevant because the only thing she testified to was slipping on ice which has nothing to do with tripping on a bucket and tripping on stairs tripping going up and down so what you said in her deposition she also said every now and then and know you are i'm sorry i said that she did not she never said that she never gave that testimony and that was what mr chaffin was referring to when he's went after mr m after counsel for cost in his closing argument said maybe it wasn't really a bucket maybe her knees just gave out stood up in a response that she never fallen before and what he was talking about was a spontaneous fall not that she had never tripped or fallen or slipped or fallen because they had no evidence in her deposition that she had ever just fallen down one last question and clearly she had some pine and saw for not go along with that she had an operation she had screws put in and she had a ploy put in but recovered pretty well as i understand the start of the rocker how do you justify one point three million dollars because first your honor under the standard that's a political judge come on apply the correct standard and he reached the correct result counsel mentioned in the correct standard he applied the standard which which we argue applies in a maritime law which is not this course this court standard from bravo versus united states that apply in florida state court losses tested verdicts in a political because that only applies in federal tort claims act cases that's a congressional mandate in a federal statute is the standard th climb a pas the standard that judge conn applied was to look at whether the verdict exceeds the amount of stablish by the evidence whether it shocks the conscience and whether it indicates passion prejudice or some other improper motive and in his motion trial order at page nine forty two of the record he goes through a very detailed analysis of all of the evidence that he that that he believes supported the verdict and goes through each of those prongs in arrives at a sound decision that the jury's verdict was not against the great weight of the evidence and did not shock the conscience and bared a rational relationship now want to address a question that you asked your honor judge debina about where the five hundred thousand came from we don't know exactly where it came from because we can't be in the jury's model we have a good idea it came from counsel for costa in their closing argument the first lawyers to mention a dollar figure was counsel for costa he stood up and said but his counsel going to ask you for a number for general damages probably something like five hundred thousand dollars but past future or past general damages future general damages in a line for past medical expenses ok and what were the first to live for past general damages they wanted five hundred thousand ok or future general damages they awarded eight hundred thousand and they awarded the six sixteen thousand and change that they were instructed to award and you've crossed the payout on that issue yes your honor and to be clear there really for seeking is only in so far as this court finds that that particular item of damages is separate and distinct enough that the court can remain and only with respect to that issue to the extent the court finds it's not separate and distinct enough that we withdraw our appeal on that issue and we ask the court to affirm the judgment in its entirety however the jury heard five hundred thousand as a suggestion of what it should award in general damages not initially from us from counsel for cost and then they go in and they award exactly that we know the jury was working hard on its calculation of general damages because ten or fifteen minutes after they retired to deliberate they sent out a question if we decide that we're going to award dinner general damages how do we make that calculation they ask that and so if you look at it what did the judge tell him  damages and medical records indicate that you have all and a number of times in two thousand and fourteen your honor i don't recall as i stand here i don't recall exactly what her medical record settle on that is counsel fent she had fallen five or six times between fourteen and fifteen you know remember that again your honor i don't without referencing without looking at the medical records but i would say that costa was allowed if you see in the record to present a substantial amount of evidence of her being a fall risk being unstable having new problems being wobbly they presented a number of it a piece of evidence counsel said eight times in his closing argument she's a fall risk so to act as though this prior fault evidence was the smoking gun without which the head nothing is simply not true we also know that it was key evidence and you were successful in getting it excluded right yes your honor and there's a reason why don't you file the motion in limine to exclude it because you thought the and to get a definitive ruling on the record that was the really saw in our motion in limine not in a not an outright why did the district court rule you said your motion in limine is granted me but he granted our request that they have to approach which is why it's a tentative ruling not a definitive ruling and why costa must prove plain error with respect to that ruling not a piece of discretion i scored in if i may say that my time is up your honor so if i may motion of a limit he asked is a broad motion in limine he asked to preclude any evidence of prior falls that's what it asked for you yes or yes or if you look at the motion limit it says that the judge says i'm going to grant the motion i find it's a four three issue you know pro worse i think you said to medical records evidence of six falls in two thousand and fourteen and a number are and and number of falls between july to july two thousand and fourteen fifteen absolutely just let me just tick off what the medical records showed and what they were redacted trial exhibit seven point one indicated that there was an injury to the right knee status post fall after tripping that's exhibit trial exhibit seven point one hundred it was redacted to delete that that language i just read do we have a date that's all yes your honor that was august twenty third sixteen months sixteen months before the accident go on give us the dates of the prior falls say within the yes previous two to three years yes your hon at least once a month i believe that's an exact quote of what was redacted from that medical record three months before trial exhibit seven point nine is a july two thousand and fifteen physical therapy initial evaluation year balance problem the patient does tend to trip on her foot that's seven point nine there was a face to face book posts which are also excluded exhibit sixty nine point four it was attached to our motion to opposition to the motion to limit i have it to referring to posts where saying people can trip over thin air miss he said i have that trait to exhibit sixty nine point five which again is in opposition to the motion limiting miss higgs said in a facebook post i've been walking wrong for years in her deposition so those are the medical records in the facebook post in her deposition i asked the questions and i'll just read exactly what it is for the court can see what ms hicks testified  what we weren't allowed to present beef and help him on page thirty three of mistakes pretrial deposition before you went on the ship had you ever fallen before answer no i trip sometimes but no not really no question not really not really is kind of vague answer an answer i know let me ask the question again so we're all clear before you went on the cost of luminosity in december two thousand and fourteen had you ever trip before and fallen down answer yes i'm just trying to think because yes i have fallen before yes question how many times answer i think three or four question when were they in proximity to a cost a trip in other words was it a month before or was it a week before was it two weeks before six weeks before answer probably maybe a year before and then we continue she starts talking about ice i bring her back to falls on page thirty four now line