UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-22783-BLOOM/Louis

KATHRYN BIRREN and 

MANDY BIRREN,

Plaintiffs,

v.

ROYAL CARIBBEAN CRUISES, LTD.,

a Liberian corporation, 

Defendant.

_________________________________/

ORDER ON MOTION TO STRIKE AFFIRMATIVE DEFENSES

THIS CAUSE is before the Court upon Plaintiffs’ Motion to Strike Defendant’s 

Affirmative Defenses, ECF No. [16] (“Motion”), filed on October 14, 2020. Defendant filed a 

Response, ECF No. [19] (“Response”), to which Plaintiffs replied, ECF No. [20] (“Reply”). The 

Court has carefully considered the Motion, all opposing and supporting submissions, the record in 

the case, the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion 

is granted in part and denied in part.

I. BACKGROUND

Plaintiffs initiated this maritime personal injury action against Defendant on July 7, 2020. 

ECF No. [1]. Plaintiffs filed their First Amended Complaint, ECF No. [8] (“Amended 

Complaint”), on September 18, 2020. The Amended Complaint asserts the following nine counts: 

Count I – Negligent Hiring and Retention; Count II – Negligent Supervision and Training; Count 

III – Negligent Failure to Warn of Dangerous Conditions; Count IV – Negligent Design, 

Installation, and/or Approval of the Subject Area and the Vicinity; Count V – Negligence Against 

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Defendant for the Acts of its Crewmembers Based on Vicarious Liability; Count VI – Negligent 

Failure to Inspect, Clean, Maintain, Repair, Remedy, and/or Take Other Reasonable Measures for 

the Safety of Plaintiffs; Count VII – Vicarious Liability Against Defendant for the Negligence of 

the Ship’s Medical Staff; Count VIII – Apparent Agency as to Defendant for the Acts of the Ship’s 

Medical Staff; and Count IX – Assumption of Duty as to Defendant for the Negligence of the 

Ship’s Medical Staff. See generally ECF No. [8]. Moreover, on October 9, 2020, Defendant filed 

its Answer and Affirmative Defenses to Plaintiffs’ First Amended Complaint, ECF No. [15]

(“Affirmative Defenses”). Defendant asserted twelve affirmative defenses and reserved its right to 

amend its Affirmative Defenses as more facts become known through the course of discovery.

Plaintiffs now move to strike seven of the Affirmative Defenses: the first, second, fifth, 

seventh, eighth, eleventh, and twelfth affirmative defenses. See ECF No. [16]. According to 

Plaintiffs, the affirmative defenses at issue assert bare conclusions, fail to allege any facts upon 

which the defenses are based, and fail to comply with the applicable pleading standards. Moreover, 

Plaintiffs conclude that the affirmative defenses are “legally insufficient, irrelevant, and/or 

immaterial and thus, should be stricken. In response, Defendant agrees to withdraw its seventh 

affirmative defense, but argues that the other challenged affirmative defenses provide the basic 

notice required by law, and relate directly to Plaintiffs’ claims. Alternatively, Defendant requests 

that it be given leave to amend any affirmative defenses that are stricken.

II. LEGAL STANDARD

An affirmative defense is a defense “that admits to the complaint, but avoids liability, 

wholly or partly, by new allegations of excuse, justification, or other negating matters.” Adams v. 

Jumpstart Wireless Corp., 294 F.R.D. 688, 671 (S.D. Fla. 2013). A defense that addresses a defect 

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in a party’s claim or that fails to put the opposing party on notice of the nature of the defense is 

not a properly asserted affirmative defense. Id.

Federal Rule of Civil Procedure 12(f) permits a court to “strike from a pleading an 

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” and grants 

courts broad discretion in making this determination. Fed. R. Civ. P. 12(f); Morrison v. Exec.

Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1318-19 (S.D. Fla. 2005) (citing Williams v.

Eckerd Family Youth Alt., 908 F. Supp. 908, 910 (M.D. Fla. 1995)). Under Rule 12(f), “[a] motion 

to strike will usually be denied unless the allegations have no possible relation to the controversy 

and may cause prejudice to one of the parties.” Harty v. SRA/Palm Trails Plaza, LLC, 755 F. Supp. 

2d 1215, 1218 (S.D. Fla. 2010) (internal quotation and citation omitted); Action Nissan, Inc. v.

Hyundai Motor Am., 617 F. Supp. 2d 1177, 1187 (M.D. Fla. 2008) (same); see also Home Mgmt.

Solutions, Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *1 (S.D. Fla. Aug. 21, 

2007) (same). Despite the Court’s broad discretion, a motion to strike is considered a drastic 

remedy and is often disfavored. See Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 

1345, 1348 (M.D. Fla. 2002) (quoting Augustus v. Bd. of Pub. Instruction of Escambia Cty., Fla., 

306 F.2d 862, 868 (5th Cir. 1962));1 Fabing v. Lakeland Reg’l Med. Ctr., Inc., No. 8:12-cv-2624-

T-33MAP, 2013 WL 593842, at *2 n.2 (M.D. Fla. 2013) (calling Rule 12(f) a “draconian 

sanction”).

Even so, “an affirmative defense must be stricken when the defense is comprised of no 

more than ‘bare-bones, conclusory allegations’ or is ‘insufficient as a matter of law.’” Northrop &

Johnson Holding Co., Inc. v. Leahy, No. 16-cv-63008, 2017 WL 5632041, at *3 (S.D. Fla. Nov. 

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Court of Appeals for the Eleventh 

Circuit adopted as binding precedent all decisions of the Court of Appeals of the Fifth Circuit issued prior 

to October 1, 1981.

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22, 2017) (quoting Adams, 294 F.R.D. at 671; Home Mgmt. Solutions, Inc., 2007 WL 2412834, at 

*2). “A defense is insufficient as a matter of law only if: (1) on the face of the pleadings, it is 

patently frivolous, or (2) it is clearly invalid as a matter of law.” Microsoft Corp. v. Jesse’s

Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002).

“Courts have developed two schools of thought regarding the pleading standard required 

for affirmative defenses, and the Eleventh Circuit has not yet resolved the split in 

opinion.” Ramnarine v. CP RE Holdco 2009-1, LLC, No. 12-61716-CIV, 2013 WL 1788503, at 

*1 (S.D. Fla. Apr. 26, 2013). Some courts have concluded that affirmative defenses are subject to

the heightened pleading standard of Rule 8(a), as set forth in Bell Atlantic Corp. v. Twombly, 550 

U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Moore v. R. Craig Hemphill &

Assocs., No. 3:13-cv-900-J-39-PDB, 2014 WL 2527162, at *2 (M.D. Fla. May 6, 2014); see

also Adams v. JP Morgan Chase Bank, N.A., No. 3:11-cv-337-J-37MCR, 2011 WL 2938467, at 

*2-3 (M.D. Fla. July 21, 2011). Other courts have held that affirmative defenses are subject to a 

less stringent standard under Rules 8(b) and 8(c), and that affirmative defenses need only “provide 

fair notice of the nature of the defense and the grounds upon which it rests.” See, e.g., Gonzalez v.

Midland Credit Mgmt., Inc., No. 6:13-cv-1576-Orl-37TBS, 2013 WL 5970721, at *3 (M.D. Fla. 

Nov. 8, 2013); Jackson v. City of Centreville, 269 F.R.D. 661 (N.D. Ala. 2010); Romero v. S.

Waste Sys., LLC, 619 F. Supp. 2d 1356, 1358 (S.D. Fla. 2009); Sparta Ins. Co. v. Colareta, No. 

13-60579-CIV, 2013 WL 5588140, at *3 (S.D. Fla. Oct. 10, 2013); Ramnarine, 2013 WL 

1788503, at *1.

The difference in language between Rule 8(a) and Rule 8(b) is subtle, but significant. While 

Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is entitled to 

relief,” Rule 8(b) merely requires that a party “state in short and plain terms its defenses to each 

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claim asserted against it.” Fed. R. Civ. P. 8(a) and (b). In plain terms, the language of Rule 8(a) 

requires the party to “show” that they are entitled to relief, while Rule 8(b) does not. See Moore, 

2014 WL 2527162, at *2 (“Whereas [Rule 8’s] pleading provision uses, ‘showing,’ its response 

and affirmative-defense provisions use, ‘state,’ and Iqbal’s and Twombly’s analyses relied on 

‘showing’ ”); Ramnarine, 2013 WL 1788503, at *3 (explaining that “the difference in the language 

between Rule 8(a) and Rules 8(b) and (c) requires a different pleading standard for claims and 

defenses”). Comparable to Rule 8(b), Rule 8(c) requires that a party “must affirmatively state any 

avoidance or affirmative defense.” Fed. R. Civ. P. 8(c). “[T]he Eleventh Circuit has stressed 

providing notice as the purpose of Rule 8(c): ‘[t]he purpose of Rule 8(c) is simply to guarantee 

that the opposing party has notice of any additional issue that may be raised at trial so that he or 

she is prepared to properly litigate it.’” Jackson v. City of Centreville, 269 F.R.D. 661, 662 (N.D. 

Ala. 2010) (quoting Hassan v. USPS, 842 F.2d 260, 263 (11th Cir. 1988)).

In this Court’s view, affirmative defenses are not subject to the heightened pleading 

standard elucidated in Twombly and Iqbal. The straightforward construction of Rule 8 delineates 

different standards for pleadings generally, and those applicable to defenses. See Fed. R. Civ. P. 

8. As noted by the Middle District of Alabama, “to artificially supply Rules 8(b)(1) and 8(c)(1) 

with the unique language of Rule 8(a)(2) requiring a ‘showing’ is to contravene well-established 

principles of statutory construction, which have been found applicable to interpreting the Federal 

Rules of Civil Procedure.” E.E.O.C. v. Joe Ryan Enters., Inc., 281 F.R.D. 660, 663 (M.D. Ala. 

2012) (citing Bus. Guides v. Chromatic Comms. Enter., Inc., 498 U.S. 533, 540-41 (1991)). 

Furthermore, “when one considers that a defendant must answer the complaint within 21 days, 

imposing a different standard for defenses is not unfair.” Floyd v. SunTrust Banks, Inc., No. 1:10-

cv-2620-RWS, 2011 WL 2441744, at *8 (N.D. Ga. June 13, 2011).

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III. DISCUSSION

A. First Affirmative Defense

Defendant’s First Affirmative Defense states:

Plaintiffs’ own negligence was the sole proximate cause of their injuries and 

damages, and as such any damages are barred as a matter of law. Alternatively, 

Plaintiffs’ own negligence contributed to the subject incident and their injuries, and 

therefore, any award to the Plaintiffs must be reduced pursuant to the principles of 

comparative negligence.

ECF No. [15] at 14. 

Plaintiffs contend that this affirmative defense should be stricken because it fails to plead 

even minimum facts as to how these defenses might be applicable. See Alhassid v. Bank of Am.,

N.A., No. 14-cv-20484, 2015 WL 11216747, at *3 (S.D. Fla. Jan. 27, 2015) (denying motion to 

strike “boilerplate but well-recognized” defenses that “lack factual particularity” (citing Guarantee 

Ins. Co. v. Brand Mgmt. Serv., Inc., 2013 WL 4496510, at *4-5 (S.D. Fla. Aug. 22, 2013))).

Defendant, however, argues that this defense sufficiently apprises Plaintiffs of its intent to raise 

the issue of Plaintiffs’ comparative fault and thus should not be stricken. The Court agrees. “This 

affirmative defense is essentially a contributory or comparative negligence defense; [] which is []

specifically enumerated in Rule 8(c)(1).” Lebron v. Royal Caribbean Cruises, Ltd., No. 16-24687-

CIV, 2017 WL 7792720, at *7 (S.D. Fla. Aug. 18, 2017), report and recommendation adopted, 

No. 16-24687-CIV, 2017 WL 7803805 (S.D. Fla. Sept. 27, 2017). Thus, the Court will not strike 

Defendant’s First Affirmative Defense because it is not so deficient that it would warrant such a 

drastic remedy. See Kinsman v. Winston, No. 6:15-cv-696-Orl-22GJK, 2015 WL 12839267, at *8 

(M.D. Fla. Sept. 15, 2015); see also Iskandar v. Royal Caribbean Cruises, Ltd., No. 18-cv-23812, 

2018 WL 7463362, at *1 (S.D. Fla. Nov. 20, 2018) (interpreting a similar affirmative defense to 

allege only a comparative negligence theory); Niagara Distributors, Inc. v. N. Ins. Co. of New 

York, No. 10-61113-CIV, 2011 WL 13096637, at *1 (S.D. Fla. Apr. 11, 2011) (a motion to strike 

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is “a drastic remedy that is generally disfavored and motions to strike affirmative defenses should 

be denied unless it is clear that the defenses could not succeed under any circumstances.”). 

Accordingly, Plaintiffs’ Motion is denied as to Defendant’s First Affirmative Defense. 

B. Second Affirmative Defense

Defendant’s Second Affirmative Defense alleges that “[t]his action is governed by and 

subject to the terms, limitations, and conditions contained within the contract for passage and the 

Defendant adopts and incorporates same in its entirety to its answer by reference.” ECF No. [15] 

at 14. Plaintiffs challenge this affirmative defense because it fails to set forth any additional facts 

in support. Defendant responds that the defense raises the existence of the terms, limitations, and 

conditions in the cruise ticket contract, which is sufficient to provide Plaintiffs with notice of the 

asserted defenses. 

It is worth noting, however, that “[l]imitations of liability in cruise-ship tickets are not 

enforceable against negligence claims. Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 

846, 848 (11th Cir. 2011). Although other provisions, like venue, are enforceable, those provisions 

are irrelevant as to Defendant’s liability and therefore cannot serve as affirmative defenses.” 

Iskandar, 2018 WL 7463362, at *2; see also Barrios v. Carnival Corp., No. 19-20534-CIV, 2019 

WL 1876792, at *2 (S.D. Fla. Apr. 26, 2019) (“Rejecting a defendant’s affirmative defense seeking 

waiver of liability based on the terms of the ticket contract as being “wholly irrelevant and void, 

as no part of the ticket contract may be used by Defendant to waive liability for negligence.” (citing 

Johnson, 449 F. App’x at 848)). As such, Plaintiffs’ Motion is granted on this point and the Second 

Affirmative Defense is stricken.

C. Fifth Affirmative Defense

In its Fifth Affirmative Defense, Defendant alleges that:

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Plaintiffs’ injuries, illness and/or medical condition, if any, were pre-existing. In 

the alternative, if any pre-existing injury, illness or condition was aggravated by 

any alleged incident herein, Plaintiffs are only entitled to reimbursement for the 

degree of aggravation, and any recovery herein must be reduced and limited to that 

degree of aggravation.

ECF No. [15] at 14. Plaintiffs, in challenging this defense, assert both that it fails to allege 

sufficient facts and that, as a matter of law, this defense misstates the law regarding pre-existing 

conditions, citing to the language of Florida Jury Instruction 501.5(a) as the authority on preexisting conditions. Defendant responds that the Florida Jury Instruction provision is inapplicable 

here and that, in order to plead more facts in support of this defense, it must be allowed to conduct 

discovery to obtain Plaintiffs’ medical records. Thus, Defendant argues that the Fifth Affirmative 

Defense should not be stricken. 

A review of the defense here makes it clear that it raises a question of causation—i.e., 

whether Plaintiffs’ injuries were caused by pre-existing conditions or by Defendant. See Najmyar 

v. Carnival Corp., No. 1:17-cv-22448, 2017 WL 7796327, at *3 (S.D. Fla. Aug. 28, 2017). 

“[G]iven the appropriate pleading standard for affirmative defenses, because the Fifth Affirmative 

[D]efense provides the Plaintiff[s] with fair notice of the defense Defendant intends to raise, e.g., 

the presence of a pre-existing injury, the Fifth Affirmative Defense should not be stricken.” 

Lebron, 2017 WL 7792720, at *5; see also Sembler Family P’ship No. 41, Ltd. v. Brinker Fla.,

Inc., No. 8:08-cv-1212-T-24MAP, 2008 WL 5341175, at *4 (M.D. Fla. Dec. 19, 2008) (rejecting 

argument that the affirmative defense should be stricken as a bare bones, conclusory allegation 

where the allegations in the defense were sufficient to put the plaintiff on notice of the defense).

Moreover, “[t]he evidence to support this defense would, if it exists at all, be largely, if not 

exclusively, from Plaintiffs’ own medical records.” Incardone v. Royal Carribean Cruises, Ltd., 

No. 16-20924-CIV, 2019 WL 2709810, at *11 (S.D. Fla. June 28, 2019), report and 

recommendation adopted, No. 16-20924-CIV, 2019 WL 8989849 (S.D. Fla. Oct. 1, 2019). 

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“Through the discovery process both Parties no doubt will have the opportunity to uncover 

Plaintiff’s pre-existing injuries, if any, and will be able to argue the relevance of those injuries to 

the action at bar.” Lebron, 2017 WL 7792720, at *5. Accordingly, the Court will not strike the 

Fifth Affirmative Defense.

D. Seventh Affirmative Defense

Defendant’s Seventh Affirmative Defense states: “The Plaintiffs’ claims are barred 

inasmuch as the Plaintiffs knew of the existence of any alleged danger complained of in the 

Complaint, realized and appreciated the possibility of injury as a result of the danger, and, having 

a reasonable opportunity to avoid it, voluntarily exposed themselves to it.” ECF No. [15] at 15. 

Defendant agrees to withdraw this affirmative defense. As such, the Motion is granted as to 

Defendant’s Seventh Affirmative Defense.

E. Eighth Affirmative Defense

Additionally, Defendant’s Eighth Affirmative Defense asserts the following:

Plaintiffs’ past medical expense damages are limited to those that are reasonable 

and necessary, including reduction for any amounts written off, not submitted and 

which Plaintiffs were not required to pay. Defendant is entitled to a set-off for any 

and all monies paid by third parties that are related in any way to the above styled 

action.

Id. Plaintiffs maintain that the Eighth Affirmative Defense must be stricken because it is 

insufficient as a matter of law. Specifically, Plaintiffs assert that the Eleventh Circuit’s opinion in

Higgs v. Costa Crociere S.P.A., Co., 969 F.3d 1295 (11th Cir. 2020), “unambiguously held that 

set-offs for medical bill ‘write offs’ are improper[.]” ECF No. [16] at 7.2 Conversely, Defendant 

explains that this defense was specifically drafted to comply with Higgs and notes that the Eleventh 

2 The Eleventh Circuit, in Higgs, addressed an issue of first impression: namely, “how to calculate past 

medical expense damages in a maritime tort action where, as has become common, there is a dramatic 

disparity between the amount a healthcare provider bills a plaintiff for treatment and the amount her insurer 

actually pays the provider in satisfaction.” Higgs, 969 F.3d at 1308.

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Circuit’s holding in Higgs took write offs into account in finding that a jury should consider all 

relevant evidence, including the amount billed and the amount paid, in determining the appropriate 

measure of past medical expense damages. Therefore, Defendant claims that, pursuant to Higgs, 

it is entitled to a set off for any amounts paid by third parties in connection with this action.

The Eleventh Circuit’s opinion in Higgs addressed the appropriate calculation for past 

medical expense damages, in light of the significant deviation between the amounts paid versus 

amounts billed that have become common in modern healthcare, and held “that the appropriate 

measure of medical damages is a reasonable value determined by the jury upon consideration of 

all relevant evidence. Both the amount billed by healthcare providers and the amount paid by 

insurers are admissible as relevant to the question of fixing reasonable value.” 969 F.3d at 1308. 

Critically, in applying the collateral source rule to permit the introduction of evidence on 

the amount paid, the Eleventh Circuit rejected any bright-line cap to the calculation of medical 

damages based on the amount paid, and concluded instead that the jury should be presented with 

all relevant evidence in determining the reasonable value of the medical services received. Id. at 

1314-16. Specifically, the Higgs Court emphasized:

The resolution of this question turns on the construction of a principle of 

tort law known as the collateral source rule. The collateral source rule is both a 

substantive principle of damages and an evidentiary rule. In its substantive role, the 

collateral source rule provides that a plaintiff is entitled to recover the full value of 

the damages caused by a tortfeasor, without offset for any amounts received in 

compensation for the injury from a third party (like an insurance company or a 

family member). See Bourque v. Diamond M. Drilling Co., 623 F.2d 351, 354 (5th 

Cir. 1980); Restatement (Second) of Torts § 920A(2) (“Payments made to or 

benefits conferred on the injured party from other sources are not credited against 

the tortfeasor’s liability, although they cover all or a part of the harm for which the 

tortfeasor is liable.”). In its evidentiary role, the collateral source rule bars the 

admission of evidence of payments made by third parties. Bourque, 623 F.2d at 354 

(“[T]he rule prohibits the introduction of evidence offered to show that [a plaintiff] 

already has been compensated for his injuries.”).

The collateral source rule is thus an exception to the basic tort principle that 

damages are designed to make the plaintiff whole—the rule allows a plaintiff to 

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recover damages for a harm for which she has already been compensated. In fact, 

it makes her more than whole. 25 C.J.S. Damages § 189 (“The collateral-source 

rule is an exception to the general rule of damages preventing a double recovery by 

an injured party, or in other words, it is an exception to the general rule that in a 

tort action, the measure of damages is that that will compensate and make the 

plaintiff whole.”). But the law conceptualizes the collateral source payment as 

necessarily a windfall—after all, a party other than the victim or the alleged 

tortfeasor has voluntarily chosen to bear the costs of the victim’s injury—that is 

better awarded to the plaintiff than the tortfeasor. See Sweep v. Lear Jet Corp., 412 

F.2d 457, 459 (5th Cir. 1969) (summarizing justifications for the collateral source 

rule). Moreover, the rule is understood to avoid discouraging plaintiffs from 

prudently paying for insurance by limiting their recoveries, and it deters negligence 

by punishing tortfeasors for the full amount of their wrongdoing. Id.

It is also well established that the collateral source rule—both in its 

substantive and evidentiary roles—applies to maritime tort cases. See Bourque, 623 

F.2d at 352, 354. Its proper application to contemporary medical expenses is a 

vexing question, however. See McConnell v. Wal-Mart Stores, Inc., 995 F. Supp. 

2d 1164, 1169 (D. Nev. 2014) (“As controversial as the collateral source rule is, 

whether the rule should apply to ‘write-downs’ is even more so.”). It is uncontested 

that as a substantive, general matter, the collateral source rule applies to the 

calculation of Higgs’s medical damages. That is, Higgs is entitled to recover 

medical damages over and above the amount she paid out of pocket, even though 

those costs were settled by her insurer. Both parties agree—as they must—that 

Higgs is entitled to recover some amount for which United Healthcare was solely 

responsible. Thus, in some real way, she is going to receive a windfall. The question 

before us is how much, and how that figure should be calculated.

Id. at 1310-11 (footnote omitted).

Additionally, while this method of computation necessarily contemplated introducing to 

the jury evidence of discounts or write offs made by third parties, it did not otherwise alter the 

basic principles that underlie the collateral source doctrine. See id. at 1316 (“In this way, admitting 

evidence of the paid amount—which could have been paid by the plaintiff (indeed, part of it was), 

the insurer, or anyone else—does not violate the letter or the spirit of the collateral source rule. It 

is simply a figure, described as the total actual amount of payment, that provides a benchmark for 

the jury’s consideration of the reasonable value of a provider’s medical services.”). Ultimately, the 

“guiding principle is that plaintiffs are entitled to recover the reasonable value of treatment for 

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injuries they have sustained, regardless of whether their medical expenses have been paid and by 

whom.” Id. at 1311. 

The Eighth Affirmative Defense attempts to read Higgs in a manner that would permit a 

tortfeasor to set off payments made by third parties in order to reduce its own liability amount—a 

reading that is clearly contrary to Higgs’s holding and to the collateral source rule. As the Eleventh 

Circuit emphasized, “[i]n its substantive role, the collateral source rule provides that a plaintiff is 

entitled to recover the full value of the damages caused by a tortfeasor, without offset for any 

amounts received in compensation for the injury from a third party (like an insurance company or 

a family member).” Id. at 1310 (emphasis added). Furthermore, the jury’s entitlement to consider 

evidence of a healthcare write-off in determining the reasonable value of a plaintiff’s medical 

damages has no impact on a tortfeasor’s ability to reduce its liability by amounts paid from 

collateral sources. “In other words, because the amount billed does not create a debt in any 

meaningful sense, the write-off is not a reduction of debt in any meaningful sense . . . .” Id. at 

1315. Defendant’s Eighth Affirmative Defense attempts “to circumvent the collateral source rule, 

which prohibits a tortfeasor from reducing its liability by any amount the plaintiff has received 

from other sources,” Najmyar, 2017 WL 7796327, at *3, by alleging its purported entitlement to a 

set off for any amounts paid in this case by third parties. As such, the Court concludes that this 

defense must be stricken because it is clearly invalid as a matter of law. See Microsoft Corp., 211 

F.R.D. at 683. Therefore, the Court grants Plaintiffs’ Motion.

F. Eleventh Affirmative Defense

In the Eleventh Affirmative Defense, “Defendant alleges that the incident and injuries 

alleged in the Complaint were the result of intervening, independent, superseding and/or 

unforeseeable causes for which Defendant had no duty to protect Plaintiffs from.” ECF No. [15] 

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at 16. Plaintiffs repeat their arguments presented on the First Affirmative Defense, noting that the 

defense presents insufficient, boilerplate language devoid of any factual allegations in support. 

Defendant contests the alleged insufficiency of this defense, especially at this early stage in 

litigation before the parties have had the opportunity to conduct discovery to determine issues of 

comparative fault or intervening events that caused Plaintiffs’ injuries, and again argues that this 

defense provides adequate notice. 

Similar to the Court’s analysis regarding the First Affirmative Defense, the Eleventh 

Affirmative Defense makes clear that Defendant intends to raise issues regarding either 

comparative fault or superseding causes. Specifically, this defense provides adequate notice by 

alleging the existence of a superseding cause that “cut off any causal connection between 

[Defendant’s] alleged negligence and [Plaintiffs’] injuries” Wiegand v. Royal Caribbean Cruises 

Ltd., No. 19-cv-25100, 2020 WL 4187805, at *3 (S.D. Fla. July 20, 2020). “Under general federal 

maritime law, a superseding cause defense, if successful, completely exculpates the defendant of 

any liability in the matter.” Id. (citing Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837-838

(1996)).

The Eleventh Circuit has explained that “[r]equiring a defendant to plead certain 

defenses affirmatively serves the important purpose of providing notice to the 

plaintiff and the court.” . . . The defendant is not required to “set out in detail the 

facts” upon which his affirmative defense is based; rather, he need only set forth a 

“short and plain statement” that will give “fair notice” of the defense and the 

“grounds upon which it rests.” 

T.G. v. Sears, Roebuck & Co., No. 06-61228-CIV, 2006 WL 8432512, at *2 (S.D. Fla. Nov. 20, 

2006).

Further, “[a]s to the lack of factual support, the Court will not strike this affirmative defense 

where the parties have not conducted discovery and only Plaintiff was present . . . at the time of 

the alleged injury. This affirmative defense is better challenged at summary judgment.” Iskandar, 

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2018 WL 7463362, at *2. As such, Plaintiffs’ Motion is denied as to Defendant’s Eleventh 

Affirmative Defense.

G. Twelfth Affirmative Defense

Finally, Defendant’s Twelfth Affirmative Defense asserts that “Plaintiffs’ Amended 

Complaint fails to state a cause of action upon which relief can be granted.” ECF No. [15] at 16. 

An assertion that a pleading fails to state a claim is not a valid affirmative defense. See Northrop 

& Johnson Holding Co., Inc., 2017 WL 5632041, at *3. “[F]ailure to state a claim is a defect in [a 

party]’s claim; it is not an additional set of facts that bar recovery notwithstanding [a party]’s valid 

prima facie case.” Boldstar Tech. LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283, 1292 (S.D. Fla. 

2007). However, in light of the disfavor with which courts view striking portions of pleadings, the 

Court will treat the Twelfth Affirmative Defense as a specific denial. See JazAtlanta 519 LLC v. 

Beazley Underwriting, Ltd., No. 18-cv-60498, 2018 WL 4743634, at *2 (S.D. Fla. Oct. 2, 2018);

McMullen v. GEICO Indem. Co., No. 14-cv-62467, 2015 WL 11199534, at *3 (S.D. Fla. Jan. 13, 

2015) (declining to strike defendant’s “affirmative defense” that “Plaintiff’s Complaint fails to 

state a cause of action upon which relief can be granted” and instead treating it as a specific denial); 

see also Bluewater Trading LLC v. Willmar USA, Inc., No. 07-61284-CIV, 2008 WL 4179861, at 

*2 (S.D. Fla. Sept. 9, 2008); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 1269 (3d ed. 2018). Thus, the Court denies Plaintiffs’ Motion on this point.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion, ECF No. [16], 

is GRANTED in part and DENIED in part as follows:

1. The Motion to Strike the First, Fifth, Eleventh, and Twelfth Affirmative Defenses is 

DENIED. 

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Case No. 20-cv-22783-BLOOM/Louis

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2. The Seventh Affirmative Defense is WITHDRAWN.

3. The Second Affirmative Defense is STRICKEN.

4. The Eighth Affirmative Defense is STRICKEN WITHOUT PREJUDICE. 

Defendant may replead this defense consistent with this Court’s discussion above on 

Higgs by no later than November 12, 2020. 

DONE AND ORDERED in Chambers at Miami, Florida, on November 4, 2020.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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