FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 FEBRUARY 11, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 09-15377 & 09-16424

________________________

D. C. Docket No. 08-00568-CV-T-27-TBM

KIRTSEN KISSINGER-CAMPBELL,

Plaintiff-Appellee,

versus

C. RANDALL HARRELL, M.D., P.A.,

C. RANDALL HARRELL, M.D.,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(February 11, 2011)

Before DUBINA, Chief Judge, and ANDERSON, Circuit Judge.*

___________

* Although United States District Judge David H. Coar of the Northern District of Illinois

sat by designation in this case, he retired as an Article III Judge in December 2010. Accordingly,

we decide this case by a quorum. See 11th Cir. R. 34-2.
PER CURIAM:

C. Randall Harrell, M.D., P.A. (“The Fountain of Youth”) and C. Randall

Harrell, M.D., appeal from two district court orders denying their renewed motion

for judgment as a matter of law and their request for a new trial, following a jury

verdict for Plaintiff, Kirtsen Kisssinger-Campbell on a claim of tortious

interference. Because we conclude that the district court did not err in dismissing

these motions, we affirm.

 Defendants raise a bevy of claims in their appeal. They begin by arguing

that the district court erred in not granting them judgment as a matter of law

because there was no evidentiary basis for the verdict at trial. Next, they request a

new trial on the ground that prejudicial hearsay was wrongly admitted. Defendants

then contend that the jury’s award for emotional distress should be struck because

the alleged damages lacked a causal connection with Plaintiff’s claim and because

it is inconsistent with the damages award for the general tort claim for intentional

interference. Finally, Defendants claim that their Rule 60(b)(2) and Rule 60(b)(3)

motions should have been granted because newly discovered evidence

demonstrates that the judgment at trial was likely inaccurate and that Plaintiff

committed a fraud on the court, which denied Defendants an opportunity to

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conduct a full and fair trial. For the following reasons, we believe that these claims

lack merit.

I. FACTS

Defendant, C. Randall Harrell, M.D., is a registered cosmetic surgeon in the

Palm Harbor, Florida area and directs his own practice, The Fountain of Youth

Institute. The doctor and his practice are both defendants in this suit. Plaintiff,

Kirtsten Kissinger-Campbell went to work for Defendant as an image consultant

and assistant office manager sometime in September or October of 2005. As an

image consultant, Kissinger-Campbell’s primary responsibility was in sales. She

would meet with prospective clients and discuss with them their options as to

services performed by Harrell. Kissinger-Campbell’s compensation consisted of a

base salary and a monthly bonus. During her tenure at the Fountain of Youth,

Kissinger-Campbell also accumulated some managerial responsibilities in the

office. At the beginning of 2007, Harrell did not award Kissinger-Campbell her

monthly sales bonuses for the months of January or February after announcing that

the bonus formula would be changed for both her and her supervisor, Scott

McCauley. McCauley’s bonus ultimately increased while Kissinger-Campbell’s

decreased.

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Prior to Plaintiff’s beginning employment with Harrell, Defendants formed a

business relationship with My Choice Medical, Inc., (“My Choice”) a referral

source and financing agent for cosmetic surgery patients. At some point in 2004 or

2005, Harrell and My Choice entered into a business relationship whereby My

Choice referred clients to Harell. This relationship appears to have been set forth in

writing in a contract between My Choice and Penn Plastic Surgery of

Pennsylvania, a company somehow associated with The Fountain of Youth. My

Choice had its own image consultants, so Kissinger-Campbell had no role in

bringing in customers who were referred by the company. By the beginning of

2007, referrals from My Choice were becoming an increasingly large portion of

Harrell’s clientele, making Kissinger-Campell’s position less important.

In March 2007, Harrell informed Kissinger-Campbell that she was being

removed from her sales position and placed in the role of receptionist. Because

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Kissinger-Campbell did not approve of her new position and because she did not

believe that Defendants would pay her accrued bonuses, she decided to tender her

letter of resignation on March 27, 2007. Kissinger-Campbell claims that she agreed

Plaintiff eventually sued Harrell on a breach of contract theory in Florida state 1

court because of this change in employment responsibilities. This suit is ongoing and Defendants

have attempted to use evidence gathered as part of its discovery in that case to assert their claims

for fraud on the court in this case, as discussed below.

Plaintiff also filed suit against Defendants for unpaid overtime. That suit was commenced

in May 2007, the first of the three lawsuits Plaintiff filed against Defendant.

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to stay on for another month to train a replacement sales person, but due to harsh

treatment by Harrell, she abruptly decided to quit on April 2. Shortly thereafter,

Kissinger-Campbell received a letter from Harrell that threatened suit against her.

The letter asserted that her wages might be garnished due to libelous allegations

that she had made about the practice. 

 During the early months of 2007, Kissinger-Campbell exchanged several

emails with Leanne Green, an image consultant for My Choice, who served the

portion of the clientele that was referred to Harrell from 2005 to 2007. Plaintiff

contacted Green after her demotion, but before she left Harrell’s office, and asked

her whether she knew of any openings in the field and if she enjoyed her job at My

Choice. Green suggested that Kissinger-Campbell possibly come to work at My

Choice.

Harell claims that this communication was an attempt on the part of Green to

recruit Kissinger-Campbell away from Fountain of Youth and a potential violation

of the contract between My Choice and Penn Plastic Surgery. He believed that this

contract applied to his practice and that a confidentiality clause in the agreement

prevented the recruiting of current employees from one company to the other.

Kissinger-Campbell’s account is that the conversation was just a casual discussion

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that she initiated because she was unhappy with her job and exploring her

employment options.

After her resignation, Kissinger-Campbell learned that My Choice was

interested in hiring a new employee to cover the Florida area, and she applied for

the position. Harrell learned of the email correspondence between KissingerCampbell and Green on April 16, 2007. He immediately contacted Vince Traposso,

an officer at My Choice, and informed him of his belief that My Choice was in

violation of the agreement. According to the Defendants, the contract has very

broad language concerning the use of proprietary information. Plaintiff claims that

the contract in question had no bearing on whether My Choice could hire her and

that it could not be mistaken as having such a provision. Defendants argue that the

contract’s broad confidentiality clause would at least preclude My Choice from

hiring away any of the current employees of the Fountain of Youth. Harrell

testified that he spoke to Trapasso about the contract because he was concerned

that Green may have violated the contract and he wanted to ensure that such

actions were avoided in the future. My Choice did not hire Plaintiff in April 2007,

though it eventually hired her in August of that year. When My Choice did hire

plaintiff, it was for another position covering Nashville and New Orleans, rather

than Florida.

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Trapasso was the ultimate decision-maker on My Choice’s human resources

decisions and was responsible for the original decision not to hire KissingerCampbell. Donielle DiTota served under Trapasso and relayed his decision to

Plaintiff. She testified that it was her understanding that Kissinger-Campbell was

not hired in April 2007 because of the phone conversation between Harrell and

Trapasso. 

Kissinger also interviewed with Medi-Weight Loss (“Medi-Weight”) in St.

Petersburg, Florida. Plaintiff testified that the interview took place about “the third

week of May” and that she believed that she had at least one other interview with

Dr. Zbella, the owner of the franchise, possibly by phone. After the interview,

Kissinger-Campbell discontinued her job search. However, she did not get a job

with Medi-Weight and resumed searching for employment in mid-June 2007. 

Eva Gamaras, formerly a close friend of Kissinger-Cambell’s and a surgical

technician employed by Harrell, testified that she had a conversation with Harrell

around January of 2008 in which he said that he had ensured that KissingerCampbell would not get the job at Medi-Weight. Harrell also asked Gamaras to

relay a message from him and his wife that they wanted to meet with KissingerCampbell to discuss a resolution to the lawsuit. Plaintiff declined the opportunity to

meet with Harrell, telling Gamaras that she feared Harrell because he was

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threatening to counter-sue for $250,000. Harrell was, allegedly, furious that

Kissinger-Campbell had refused this invitation. 

In May 2007, Kissinger-Campbell filed suit for non-payment of overtime,

pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. On

February 29, 2008, Plaintiff filed the complaint in the instant case in Florida state

court. The complaint alleged that Defendants retaliated against her for the filing of

the earlier lawsuit by interfering with her attempts to obtain a new job in the

medical field. She brought claims for retaliation in violation of the FLSA and the

Florida Whistle-blower’s Act, as well as a claim for tortious interference.

Defendants successfully removed the case to the United States District Court for

the Middle District of Florida shortly thereafter. The District Court found that it

had jurisdiction on the basis of the FLSA claim.

On June 5, 2009, the jury returned a verdict which found for the Plaintiff on

the ground of tortious interference but found for the Defendants on the retaliation

claims, under both the FLSA and the Florida Whistle-blower’s Act. Defendants

filed several motions for judgment as a matter of law or, alternatively, for a new

trial. Included in the final motion was evidence gathered from depositions of Dr.

Zbella and his office manager at Medi-Weight, Sharon DeLuca, which were taken

8
in a subsequent case in Florida state court. The district court denied Defendants’

motions.

II. DISCUSSION

A. Defendants’ claim that the evidence presented was insufficient to support the

jury’s verdict on the claim of tortious interference or, in the alternative, that

Harrell’s actions were privileged

Defendants assert that no reasonable jury could have concluded that they

tortiously interfered with Kissinger-Campbell’s attempts to obtain employment

with My Choice or Medi-Weight. However, the district court laid out a substantial

set of facts presented with respect to each job, on the basis of which the jury could

have concluded that Kissinger-Campbell established a business relationship with

each employer that Defendants tortiously interfered with.

Under Florida law, the elements of a claim for tortious interference are: “(1)

the existence of a business relationship, not necessarily evidenced by an

enforceable contract; (2) knowledge of the relationship on the part of the

defendant; (3) an intentional and unjustified interference with the relationship by

the defendant; and (4) damage to the plaintiff as a result of the breach of the

relationship.” Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.

1985); KMS Restaurant Corp. v. Wendy's Int'l, Inc., 361 F.3d 1321, 1325 (11th Cir.

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2004). Defendants’ sufficiency of the evidence challenges focus on the first

element. With respect to that first element, “A protected business relationship need

not be evidenced by an enforceable contract. However, ‘the alleged business

relationship must afford the plaintiff existing or prospective legal or contractual

rights.’ ” Gossard v. Adia Services, Inc., 723 So.2d 182, 184 (Fla. 1998) (quoting

Register v. Pierce, 530 So.2d 990, 993 (Fla. App. 1st Dist. 1988)). “The test is

whether there was ‘an understanding between the parties [which] would have been

completed had the defendant not interfered.’ ” St. John’s River Mgmt. v. Fernberg

Geological, 784 So.2d 500, 505 (Fla. App. 5 th 2001) (quoting Ethan Allen, Inc. v.

Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla. 1994)).

As to the My Choice job, the district court made the following findings:

(1) During her employment with Defendants, Plaintiff was a point of

contact between Defendants and My Choice and worked closely with

representatives of My Choice; (2) in April, 2007, shortly after Plaintiff

left Defendants’ employment, Leeann Green (a representative of My

Choice in Florida who resigned around the time that Plaintiff began her

search for a new job) recommended Plaintiff to Donielle DiTota (My

Choice’s office manager) for a position as a My Choice representative;

(3) Plaintiff called DiTota to express her interest in employment as a My

Choice representative in Florida and submitted a resume, which “kind of

got things moving”; (4) DiTota, who described this period as one “when

we were trying to hire [Plaintiff],” passed on Plaintiff’s resume to My

Choice’s human resources department orto her boss Vince Taposso, who

was a part-owner (and perhaps also head of the human resources

department) of My Choice and was responsible for the hiring decisions;

(5) in a telephone conversation initiated by Harrell (the existence of

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which was corroborated to some extent by Harrell’s testimony (and the

testimony of Scott McAuley, Defendants’ office administrator), Harrell

“made it very clear, that employing [Plaintiff] would be breach of

contract”; (6) My Choice declined to hire Plaintiff; (7) Harrell admitted

to Eva Gamaras, a “surgical technologist” at his clinic, that he prevented

Plaintiff from obtaining employment at My Choice and Medi Weight

Loss; (8) Plaintiff received no response to her application until a few

months later when DiTota explained to Plaintiff that My Choice’s

contractual obligations to Defendants prevented My Choice from hiring

Plaintiff; (9) a few months later, DiTota again recommended Plaintiff for

a position as a My Choice representative; and (10) in part as a result of

a change in ownership at My Choice, My Choice then hired Plaintiff as

a My Choice representative.

Doc. 8 at 6–8. 

The court’s findings demonstrate that considerable circumstantial evidence

was presented to the jury upon which to base its judgment. Harrell points out that

Trapasso, the ultimate decision-maker in the determination not to hire KissingerCampbell originally, was not called to testify. However, his testimony was not

necessary for there to be sufficient evidence for a finding of tortious interference,

as demonstrated by the findings of the district court.

Defendants’ contention that Harrell was privileged to act, with respect to the

My Choice claim, bears little discussion. Defendants refer vaguely to the contract

without citing any language in it that would establish such a privilege.

Furthermore, they offer no proof that Harrell or Fountain of Youth were parties to

the contract.

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Likewise, the district court made extensive findings of fact relating to the

Medi-Weight job. Again, these findings of fact demonstrated that sufficient

circumstantial evidence existed for the jury to find that Harrell tortiously

interfered. The facts presented at trial established that Kissinger-Campbell had a 2

serious interview with Dr. Zbella. Additionally, the testimony of Gamaras that

Harrell admitted to her that “plaintiff had gotten a job or she had gotten a job at the

Medi-Weight Loss Clinic or was seeking a position there, and he made sure she

didn’t get it” was strong evidence. This was evidence on the basis of which the jury

could have found that Kissinger-Campbell either had a job offer or had an

understanding with Medi-Weight which would have been completed had Harrell

not interfered. On that basis, the jury could have found that Harrell prevented

Kissinger-Campbell from getting the job in question. Once again, it was not

necessary for Kissinger-Campbell to elicit testimony from the person who

ultimately decided whether to hire her because sufficient evidence had already been

presented.

B. Defendants’ hearsay challenge

The jury’s verdict does not indicate whether they found for Kissinger-Campbell 2

on the basis of one or both jobs. This Court need only find sufficient evidence as to one business

relationship to affirm. Regardless, we find that sufficient evidence was produced as to both

claims.

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Defendants claim that Kissinger-Campbell’s testimony that she “was

excited” was hearsay because it was an implied assertion; meaning that the

statement indicated that Zbella told her something to make her believe that she had

gotten the job. We decline to reach the issue of whether such an implied assertion

is inadmissible because we find that, even if there were error, the error was

harmless. At least four reasons support our conclusion.

First, the implied assertion is extremely weak. Although there could be an

implication that Dr. Zbella said something to make plaintiff think she had an offer,

a stronger inference is that plaintiff simply felt confident because she felt amply

qualified and because she and the job were such a good fit. The jury could have

understood the statement to mean something entirely different from what

Defendants contend it was meant to convey. 

Second, the impliedly asserted inference is also weak because precisely the

same implication was already before the jury in the form of plaintiff’s testimony

that she interrupted her job search because she was confident of getting that job.

Defendants do not allege that her testimony regarding her job search was hearsay.

Even if the challenged testimony had not been admitted, there is still evidence that

Plaintiff believed that she had gotten the job.

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Third, the district court expressly told the witness in the presence of the jury,

and contemporaneous with this testimony, that the witness was not supposed to

report what Dr. Zbella said. Thus, the jury was clearly aware that it was

inappropriate for Plaintiff to report anything that was discussed in the interview

with Zbella. In order for the jury to have assumed that the testimony represented

what Dr. Zbella said, it would have had to disregard the judge’s instruction. The

law presumes that juries follow the instructions of the judge.

Finally, there was strong evidence that Harrell had in fact interfered with

Plaintiff, and had himself thought that Plaintiff either had an offer or was so close

to obtaining an offer that it was his call which prevented her from getting the job.

Gamaras’s testimony was sufficiently strong that the weak inference asserted by

Harrell pales into insignificance.

In light of the foregoing reasons, if the evidence was erroneously admitted,

then that error was harmless.

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C. Defendants’ challenges to the $35,000 mental or emotional damages

Defendants’ claim that the emotional damages allegedly suffered by

Kissinger-Campbell were non-compensatory is frivolous. The district court

It should be noted that the testimony in question is only relevant to the Medi- 3

Weight claim. Even if this evidence had been excluded, it would not have affected the jury’s

deliberation with respect to the My Choice claim.

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correctly ruled that Harrell waived this claim by not asserting it in his rule 50(a)

motion. Defendants cite Peer v. Lewis, No. 06-60146-CIV, 2008 WL 2047978, at

*11 (S.D. Fla. May 13, 2008), for the proposition that a damages award may be

modified even if it is not objected to in a Rule 50(a) motion. However, that case

involved an award of monetary compensation to a candidate who lost an election; a

matter the court deemed a clear violation of law. Id. The instant claim is one of

insufficiency of the evidence; a type of claim specifically distinguished by the Peer

court. Id. (“The issue here is not one of sufficiency of the evidence. It is a purely

legal issue: whether a party can recover tort damages on the premise that he or she

would have won an election but for the defendant’s tortious conduct.”) Because

Defendants did not include this claim in their original motion for judgment as a

matter of law, it was waived.

4

Additionally, Harrell’s claim that this award was duplicative lacks merit.

Harrell fails to make any specific arguments as to why the damages award was

duplicative or how the award represented a windfall to Kissinger-Campbell. There

is simply no evidence that the jury’s award was improper.

The district court was also correct in rejecting this claim on the merits. Harrell offers no

4

argument for why the damages in this case should be deemed overly remote. There is sufficient

evidence in this case to support the jury’s determination that Harrell caused Kissinger-Campbell

significant mental or emotional damage. Thus, there is no need for discussion of whether

Defendants demonstrate plain error.

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D. Defendants newly discovered evidence and fraud claims

Defendants contend that the District Court abused its discretion by not

granting a new trial on the basis of newly discovered evidence, under Rule

60(b)(2). A motion seeking relief under 60(b)(2), based on newly discovered

evidence, requires all of the following: (1) the evidence must be newly discovered

since the trial; (2) the movant must have exercised due diligence in discovering the

new evidence; (3) the evidence cannot be merely cumulative or impeaching; (4) the

evidence must be material; and (5) the new evidence must be such that it would

produce a different outcome in the underlying action. Waddell v. Hendry County

Sheriff's Office, 329 F.3d 1300, 1309 (11th Cir. 2003); Toole v. Baxter Healthcare

Corp., 235 F.3d 1307, 1316 (11th Cir. 2000). Review of a court’s decision to deny

a motion for a new trial on the basis of Rule 60(b)(2) is scrutinized for abuse of

discretion. Toole, 235 F.3d at 1316.

As a preliminary matter, this claim may very well have been waived by

Defendants’ failure to assert a claim under Rule 60(b)(2) to the court below, though

they did assert a similar claim under Rule 59. Regardless, the claim lacks merit

because the Defendants did not exercise due diligence. To demonstrate due

diligence, the moving party must show why he did not have the evidence at the

time of the trial. 11 Wright & Miller, Federal Practice and Procedure, Civil § 2859

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(2010). Thus, for example, the failure to locate a witness prior to trial, whom the

movant later argues was important to the case, will be treated as a lack of due

diligence. Id. This is precisely the situation here. Harrell was aware of the MediWeight claim no later than April, 2008 and very familiar with Dr. Zbella’s position

in the practice. He could easily have deposed Zbella and discovered the identity of

Sharon DeLuca. Defendants offer no convincing argument that they were unable to

obtain the testimony in question from Zbella or DeLuca at trial. Their argument

that they were not on notice that this testimony was important is unpersuasive. Also

unpersuasive is their argument that they showed diligence by attempting to

subpoena Zbella during trial. Simply put, Defendants could have (and potentially

should have) procured before or during trial the testimony that they now seek to

present. They failed to do so.

Defendants also argue that the jury’s verdict should be set aside due to fraud

perpetrated by Plaintiff. Rule 60(b)(3) allows a district court to “relieve a party or

its legal representative from a final judgment, order, or proceeding [based on] fraud

. . . misrepresentation, or misconduct by an opposing party. To prevail on a

60(b)(3) motion, the movant must present clear and convincing evidence that an

adverse party has obtained a verdict through fraud, misrepresentation, or other

misconduct.” Cox Nuclear Pharmacy, Inc. v. CTI, INC., 478 F.3d 1303, 1314 (11th

17
Cir. 2007). The “conduct complained of must be such as prevented the losing party

from fully and fairly presenting his case or defense.” Rozier v. Ford Motor Co., 573

F.2d 1332, 1339 (5th Cir. 1978).

Harrell argues that Kissinger-Campbell incorrectly stated the date of her

interview with Dr. Zbella, intentionally perjuring herself in order to make it appear

that she was applying for a position different from the one that DeLuca was hired

to fill. The argument seems to turn on a question of fact, whether the date of the

interview was that testified to by Kissinger-Campbell or that now belatedly

asserted by Defendants. Rule 60(b)(3) “is aimed at judgments which were unfairly

obtained, not at those which are factually inaccurate.” Id. “Factually incorrect

judgments are the subject of Rule 60(b)(2).” Id. at 1339 n.4. Defendants fail to

produce clear and convincing evidence of fraud. The testimony of Zbella and

DeLuca merely indicates that there are conflicting accounts on precisely when

certain past events occurred. This is not evidence of perjury or a conspiratorial

scheme to concoct a false story, as Defendants allege.

Likewise, Defendants’ assertion of a fraud in the form of false testimony

regarding emails is not supported by clear and convincing evidence. Plaintiff’s

correspondence with potential employers was not foreseeably relevant when she

filed her first suit, a Fair Labor Standards Act overtime case. And by the time the

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emails had apparent relevance, they had been deleted as a routine matter.

Furthermore, the references to emails that were made at trial were either not made

in front of the jury or were made as vague references to Kissinger-Campbell’s

ability to speak to people she had networked with in the industry. There is not clear

and convincing evidence that the failure to produce such emails prevented

Defendants from fully and fairly presenting their case.5

For the foregoing reasons, the judgement of the district court is

AFFIRMED.

Defendants claim for the first time in their reply brief that the testimony of Gamaras can

5

be discarded as inherently incredible. Although the argument is without merit, we decline to

address this and other arguments that are raised for the first time in a reply brief. United States v.

Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003). Allowance of such arguments would be

inherently prejudicial to the Appellee, who is not given an opportunity to brief a response.

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