Henrietta Phillips v. Delta Airlines, Inc.

USCA11 Case: 21-14335 Date Filed: 08/19/2022 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-14335 Non-Argument Calendar ____________________

HENRIETTA PHILLIPS, Plaintiff-Appellant, versus DELTA AIR LINES, INC.,

Defendant-Appellee.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:21-cv-80413-DMM ____________________

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Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges. PER CURIAM: Henrietta Phillips appeals the district court’s grant of sum- mary judgment to Delta Airlines, Inc., on her state-law negligence claim based on injuries she sustained as a passenger on a Delta flight. She argues the district court abused its discretion on several scheduling matters and that it erred in awarding summary judg- ment to Delta. After careful consideration, we affirm. I. BACKGROUND

In 2019, Phillips flew on a Delta flight from Fort Lauderdale, Florida to Raleigh, North Carolina to visit her grandchildren. She contends that she was injured when she experienced a “violent jolt inside the cabin,” due to Delta’s negligence in operating the aircraft during landing. Her injuries consist of permanent back and spinal injuries, including a compression fracture in her spine. On Febru- ary 26, 2021, Phillips sued Delta alleging that Delta’s failure to “train its flight crew in the safe and non-hazardous operation of its aircraft” contributed to the hard landing. Despite the scheduling order’s May 19 deadline for disclos- ing her expert witnesses, Phillips submitted her sole expert witness on June 23, a week after Delta’s deadline for expert witness disclo- sure. Delta filed a motion to strike the witness, which Phillips op- posed. The district court granted the motion. At the end of Novem- ber, the district court granted Delta’s motion for summary

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judgment, concluding that Phillips did not meet her burden of cau- sation due to a lack of medical testimony. Phillips timely appealed. II. STANDARD OF REVIEW

We review an award of summary judgment de novo, view- ing the facts in the light most favorable to the nonmovant. See Zi- vojinovich v. Barner, 525 F.3d 1059, 1061 (11th Cir. 2008). Sum- mary judgment is appropriate where “there is no genuine issue as to any material fact,” and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 319, 322 (1986). III. DISCUSSION

Although Philips raises several issues about the district court’s scheduling order, there is only one dispositive issue on ap- peal: whether the district court erred in awarding summary judg- ment to Delta on Phillips’s state-law negligence claim. The district court granted summary judgment because Phil- lips did not disclose a medical expert who could testify that the air- plane’s landing caused her injuries. To establish negligence, Florida law requires that a plaintiff show that the defendant breached a le- gal duty owed to the plaintiff, and the plaintiff suffered actual harm as a result of the injury that was actually and proximately caused by the breach. Zivojinovich, 525 F.3d at 1067. Expert testimony is required “to establish causation where the issue is beyond the com- mon knowledge of laymen.” Benitez v. Joseph Trucking, Inc., 60

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So. 3d 428, 431 (Fla. 5th DCA 2011). Under Florida law, “[s]oft tis- sue injuries, such as lower back difficulties, are not readily observ- able, and hence are not susceptible to evaluation by lay persons.” Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 n.1 (Fla. 1st DCA 1985). As an initial matter, Phillips contends that the district court abused its discretion by striking the expert witness that she dis- closed—an expert in aviation. Phillips contends that this expert tes- timony “was of the utmost importance,” and that her case had “lit- tle hope” in succeeding once the district court excluded her expert, since that testimony would have created a genuine issue of mate- rial fact. But this argument is unpersuasive because the expert she sought to introduce was not a medical expert. Delta’s medical expert testified that he believed Phillips’s fracture occurred before the flight, because “MRI scans indicated an old fracture consistent with osteoporosis unrelated to trauma,” and Phillips “felt no immediate pain and did not seek immediate medical attention.” Because Phillips did not provide any medical evidence to dispute this testimony, the district court correctly con- cluded that summary judgment for Delta was appropriate. See Be- nitez, 60 So. 3d at 431; Vero Beach, 476 So. 2d at 264 n.1. Without any evidence on causation due to her failure to in- troduce expert medical testimony, Phillips’s negligence claim ulti- mately fails. Accordingly, we do not address her remaining argu- ments regarding the district court’s scheduling orders or its order granting Delta’s motion to strike Phillips’s lay witnesses.

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IV. CONCLUSION

For the foregoing reasons, we AFFIRM.