United States District Court

for the

Southern District of Florida

Lisa Donaldson, Plaintiff,

v.

Carnival Corporation, Defendant.

)

)

)

)

)

Civil Action No. 20-23258-Civ-Scola

Order 

This matter is before the Court upon the Defendant Carnival Corporation’s 

objection to United States Magistrate Judge Edwin G. Torres’s order (ECF No. 

50) granting in part and denying in part the Plaintiff’s motion to strike the 

Defendant’s affirmative defenses. For the reasons stated below, the Court 

overrules the Defendant’s objections. (ECF No. 53.)

In its objection to the Magistrate Judge’s order, the Defendant states that 

Judge Torres’s decision to strike Carnival’s seventeenth affirmative defense was 

“based on a mistaken reading of Carnival response to Plaintiff’s Motion to strike”

and therefore was in error. (ECF No. 53, at 2.) Carnival also appears to 

acknowledge that Judge Torres’s decision was based on Eleventh Circuit 

precedent, which the Defendant believes was decided “in error” and therefore

notes in its objection that it is also objecting to “preserve its right to appeal.” 

(ECF No. 53, at 2, 7.) Carnival’s seventeenth affirmative defenses states, in 

relevant part, that “any award of damages to the Plaintiff, if any, should be 

reduced by any collateral source payments paid to and/or received by the 

Plaintiff. Plaintiff’s damages as to past medical expenses, if any, must be limited 

to the amounts paid and accepted by Plaintiff’s treating physicians.” (ECF No. 

24, at 8-9.) Judge Torres concluded, because of the Eleventh Circuit’s precedent 

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

Carnival’s seventeenth affirmative defense was due to be struck. 

Where a magistrate judge issues a non-dispositive order, the Court reviews 

that order under a “clearly erroneous or contrary to law” standard. Fed. R. Civ. 

P. 72(a). A number of courts have said that a ruling can be shown to be clearly 

erroneous only when it can be concluded that the challenged decision is not 

“just maybe or probably wrong; it must strike us with the force of a five-weekold, unrefrigerated dead fish.” TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (4th 

Cir. 2009). Put another way, a finding is clearly erroneous, when “although there 

is evidence to support it, the reviewing court on the entire evidence is left with 

the definite and firm conviction that a mistake has been committed.” Holton v. 

City of Thomasville Sch. Dist., 425 F.3d 1325, 1351-52 (11th Cir. 2005). An order 

is contrary to the law when it fails to apply or misapplies relevant statutes, case 

Case 1:20-cv-23258-RNS Document 55 Entered on FLSD Docket 05/14/2021 Page 1 of 2
law, or rules of procedure. Barr v. One Touch Direct, LLC, No. 8:15-cv-2391, 2017 

WL 749503, at *2 (M.D. Fla. 2017). 

The Court has reviewed the Defendant’s objections and Judge Torres’s 

order, and finds the Defendant has failed to show that Judge Torres’s conclusion 

was clearly erroneous or contrary to law. In his order, Judge Torres notes that 

the Defendant is permitted to introduce evidence of the actual amounts the 

Plaintiff paid for her medical care, but notes that the Defendant’s affirmative 

defense is in conflict with Higgs insofar as it seeks to declare that Plaintiff’s 

damages “must be” limited to the amounts paid and accepted by the Plaintiff’s 

treating physicians. As Judge Torres noted, Higgs states that a plaintiff in a 

maritime tort case is permitted “to recover damages for a harm for which she has 

already been compensated” under the collateral source rule and therefore the 

Defendant’s defense that damages “must be” limited is in conflict with Higgs. 

(ECF No. 50, at 11 (quoting Higgs, 969 F.3d at 1310).) Indeed, the Eleventh 

Circuit noted that the appropriate measure of past medical expense damages in 

a maritime tort case “is the amount to be determined to be reasonable by the 

jury upon its consideration of all relevant evidence, including the amount billed, 

the amount paid, and any expert testimony and other relevant evidence the 

parties may offer.” Higgs, 969 F.3d at 1317. Accordingly, Judge Torres correctly 

noted that, consistent with Eleventh Circuit precedent, the Defendant may 

introduce evidence regarding the actual amounts paid for by the Plaintiff for her 

medical care, but a defense that any damages “must be” limited to amounts paid 

and accepted by the Plaintiff’s treating physicians is inconsistent with Higgs. 

Just as Judge Torres stated in his order, this Court is will not entertain the 

Defendant’s arguments that Higgs was improperly decided. Fox v. Acadia State 

Bank, 937 F.2d 1566, 1570 (11th Cir. 1991) (“a district court in this circuit is 

bound by this court’s decision.”).

Accordingly, the Court overrules the Defendant’s objections to Judge 

Torres’s order on the Plaintiff’s motion to strike. (ECF No. 53.)

Done and ordered, in Miami, Florida on May 14, 2021.

Robert N. Scola, Jr.

United States District Judge

Case 1:20-cv-23258-RNS Document 55 Entered on FLSD Docket 05/14/2021 Page 2 of 2