Ada Mae Rutledge v. NCL (Bahamas), LTD.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 20, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-15554
Non-Argument Calendar
________________________
D. C. Docket No. 1:08-cv-21412-JEM
ADA MAE RUTLEDGE,
Plaintiff - Appellant,
versus
NCL (BAHAMAS), LTD.,
a foreign profit corporation,
d.b.a. NCL,
d.b.a. Norwegian Cruise Line,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 20, 2012)
Before HULL, PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:

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Ada Mae Rutledge appeals several of the district court’s evidentiary rulings
in her negligence-based jury trial against Norwegian Cruise Line (“NCL”).
Rutledge was aboard NCL’s Norwegian Sun cruise ship on March 3, 2007, when
she was injured in a fall as she attempted to enter an elevator.
NCL security officer Stephen Pentland accompanied Rutledge from the
elevator to the ship’s infirmary, where her injured arms were immobilized.
Pentland testified that Rutledge smelled of alcohol and had glassy eyes, so he
requested that she take an alcohol breath test, and she consented. The test was
performed at around 8:30 P.M., two hours after Pentland said the fall had
occurred. The device he used is called BreathScan and is manufactured by Akers
Biosciences, which describes it as a “disposable screening device for one-time
use.” A person will blow into the device for ten seconds, and any alcohol in the
breath will cause crystals inside the device to change color from yellow to blue.
The crystals are coated with potassium dichromate and sulfuric acid, which react
to alcohol to create acetic acid and chromium sulfate. The device Rutledge used
was designed to detect a blood alcohol content (“BAC”) of .08% or higher.
Pentland testified that when Rutledge blew into the device, the crystals changed
color from yellow to blue, indicating that two hours after the fall, Rutledge had an
alcohol level of at least .08%.
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Rutledge’s and Pentland’s versions of the circumstances surrounding the
fall varied considerably. Rutledge says she tripped as she entered the ship’s
atrium elevators, but Pentland said he found her in the ship’s aft elevators.
Rutledge believed she fell at around 4:30 P.M., but Pentland said it was 6:30 P.M.
Rutledge said she had tripped over frayed or bunched carpet, but Pentland said he
inspected the area and found nothing amiss.
Rutledge brought a negligence suit against NCL, seeking damages for the
cost of repeated surgeries on her shoulders as a result of the fall. Before trial,
Rutledge moved in limine to exclude the breath test as unreliable, and the district
court denied the motion without prejudice. After the jury was selected, the district
court reexamined the motion, heard arguments from both sides, and allowed the
breath test to be used. After hearing testimony and arguments over parts of three
days, the jury found that NCL had not been negligent.
Rutledge appeals the district court’s decision to admit the breath test. She
also appeals testimony on the effects of mixing her medications with alcohol, and
the admittance of photographs of the elevators where Pentland said he found
Rutledge.
In diversity cases in federal court, the Federal Rules of Evidence govern the
admissibility of evidence. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944
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(11th Cir. 2005). We review a district court’s evidentiary rulings for “abuse of
discretion that affected the outcome of a trial.” United States v. Brown, 415 F.3d
1257, 1266 (11th Cir. 2005).
I. Breath Test
Rutledge contends that the district court erred by denying her motion to
exclude evidence of the breath test under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). “[U]nder the Rules
the trial judge must ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S. Ct. at
2795. The burden of establishing reliability lies with the proponent. United States
v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc).
Scientific test results are subject to the same reliability and relevancy
standards as scientific testimony itself. United States v. Lee, 25 F.3d 997, 998-991
Scientific evidence is usually presented by an expert, see Lee, 25 F.3d at 998-99,1
but Pentland was never qualified as an expert at the district court. In her reply brief, Rutledge
argues that a proponent of scientific evidence must be an expert witness but then confusingly
proclaims that “plaintiff contends that the evidence was not scientific.” Even if we interpret
these statements to say that it was error for Pentland–rather than an expert–to introduce the
breath test, Rutledge did not make this argument in her initial brief. Wilkerson v. Grinnell Corp.,
270 F.3d 1314, 1322 (11th Cir. 2001) (“Since Wilkerson did not raise this issue until her
supplemental reply brief, we deem it abandoned.”). Accordingly, we focus on Rutledge’s initial
arguments about the reliability and relevancy of the breath test device itself.
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(11th Cir. 1994). Daubert identifies several factors that a court may consider as
appropriate in gauging the reliability of scientific evidence or methods: (1)
whether it has been subjected to testing; (2) whether it has been subjected to peer
review; (3) its known or potential error rate; and (4) whether it has been generally
accepted in the relevant scientific community. 509 U.S. at 593-94, 113 S. Ct. at
2796-97.
However, a district court has “the discretionary authority needed . . . to
avoid unnecessary reliability proceedings in ordinary cases where the reliability of
an expert’s methods is properly taken for granted . . . . Indeed, the Rules seek to
avoid unjustifiable expense and delay as part of their search for truth and the just
determination of proceedings.” Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152-53, 119 S. Ct. 1167, 1176 (1999) (quotations and alterations omitted). “Thus,
whether Daubert’s specific factors are, or are not, reasonable measures of
reliability in a particular case is a matter that the law grants the trial judge broad
latitude to determine.” Id. at 153, 119 S. Ct. at 1176.
For example, “[t]here is rarely a reason for a court to consider opinions that
medical doctors routinely and widely recognize as true, like cigarette smoking
causes lung cancer and heart disease, too much alcohol causes cirrhosis of the
liver, and that the ingestion of sufficient amounts of arsenic causes death.”
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McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1239 n.5 (11th Cir. 2005).
Alcohol breath tests have been generally recognized as reliable since at least
1973. See Cal. v. Trombetta, 467 U.S. 479, 489 n.9, 104 S. Ct. 2528, 2534 n.9
(1984); United States v. Brannon, 146 F.3d 1194, 1196 (9th Cir. 1998)
(“Twenty-five years ago breathalyzers were certified as accurate by the National
Highway Traffic Safety Administration of the Department of Transportation.
Their methodology is well-known and unchallenged.”); United States v. Reid, 929
F.2d 990, 994 (4th Cir. 1991) (“The best means of obtaining evidence of the
breath alcohol content, and the least intrusive way of testing, is the breathalyzer
test.”); Standard for Devices to Measure Breath Alcohol, 38 Fed. Reg. 30,459,
30,459 (Nov. 5, 1973). Even if we engage in a rigorous Daubert analysis of this
particular breath test device, we find that its admission was not an abuse of
discretion. As NCL noted in its opposition to Rutledge’s motion, the device used
by Pentland has been subjected to laboratory testing that showed only one false
positive in 1,200 trials. This information means the first and third Daubert factors
weigh towards admitting the test. As for peer review and general scientific
recognition, the device was approved by the Department of Transportation’s
National Highway Traffic Safety Administration (“NHTSA”) on January 31, 2007,
as conforming to “Model Specifications for Screening Devices to Measure
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Alcohol in Bodily Fluids.” Conforming Products List, 72 Fed. Reg. 4559, 4559
(Jan. 31, 2007). It was still on the list on December 15, 2009, when the NHTSA
published an update. Conforming Products List, 74 Fed. Reg. 66,398, 66,399
(Dec. 15, 2009). These specifications “established performance criteria and
methods for testing alcohol screening devices to measure alcohol content.” Id. at
66,398. Given the breath test device’s low error rate in testing and its acceptance
in the community as an effective alcohol tester, the district court did not abuse its2
discretion in finding that the device satisfies Daubert’s reliability requirements.
Rutledge nonetheless contends that the device’s manufacturer explicitly
states that it should be “used only as a screening device and is only an indication
of the possible presence of alcohol in the blood of the test subject. . . . BreathScan
is not intended to legally determine blood alcohol presence, level, or inference of
intoxication.” Despite this language, the manufacturer still provides different tests
for different alcohol concentrations (.02%, .05%, and .08%), which at least implies
that the tests are indeed able to determine alcohol level. As the district court
noted, this creates a contradiction, which could certainly go to the weight accorded
to the results by the jurors, but it does not destroy the reliability of the method
NCL also reported to the district court that the armed forces have purchased over2
1.5 million of the devices for screening soldiers’ BAC.
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itself, which was confirmed in laboratory testing. The purpose of Daubert is to
determine whether a methodology “is sufficiently reliable” to be presented to a
jury. Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1338 (11th Cir. 2003).
“Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S. Ct. at
2798.
Rutledge further contends that the breath test was irrelevant because it was
merely cumulative in light of her admission to drinking three glasses of wine
during the afternoon leading up to her fall. “Rule 702 further requires that the
evidence or testimony assist the trier of fact to understand the evidence or to
determine a fact in issue. This condition goes primarily to relevance.” Id. at 591,
113 S. Ct. at 2795 (quotations omitted). Evidence is relevant so long as it has
“any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Fed. R. Evid. 401. “The relevance exists even if the
fact-finder fails to be persuaded by that evidence. It is not necessary that the item
of evidence alone convinces the trier of fact or be sufficient to convince the trier of
fact of the truth of the proposition for which it is offered.” McKoy v. North
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Carolina, 494 U.S. 433, 440, 110 S. Ct. 1227, 1232 (1990) (quoting State v.
McKoy, 372 S.E.2d 12, 45 (1988) (Exum, C.J., dissenting)). Rutledge admitted
that she had consumed three glasses of wine but said she was not intoxicated when
she fell. The breath test showed that perhaps she was intoxicated. If nothing else,
the breath test’s results aided the jury in determining the accuracy of Rutledge’s
memory of the circumstances surrounding her fall, which were hotly debated at
trial and were especially relevant in determining whether the carpet was bunched
where Rutledge fell.3
Rutledge’s final argument on the breath test is that the district court should
have excluded the results because NCL destroyed the device. A party moving for
sanctions for spoliation “must establish, among other things, that the destroyed
evidence was relevant to a claim or defense such that the destruction of that
evidence resulted in prejudice.” Eli Lilly & Co. v. Air Express Int’l USA, Inc.,
615 F.3d 1305, 1318 (11th Cir. 2010). However, Rutledge does not dispute
NCL’s contention that the device changes colors again soon after the test has
concluded, nor that the device is viable for one-time use only. The test results
Even assuming arguendo that it was error to admit the breath test, Rutledge argues3
that it was irrelevant only because it was cumulative of her testimony that she had been drinking.
But this would not amount to anything more than harmless error. Drew P. v. Clarke Cnty. Sch.
Dist., 877 F.2d 927, 931-32 (11th Cir. 1989); Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231,
1239 (5th Cir. 1982) (“The improper admission of evidence which is merely cumulative of
matters shown by other admissible evidence is harmless error.”).
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were witnessed, verified, and attested by Pentland and Jean Darlington, one of
NCL’s nurses. Since it could not reliably be used again, possessing the device
would be of extremely limited value. Also, “an adverse inference is drawn from a
party’s failure to preserve evidence only when the absence of that evidence is
predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)
(per curiam). Rutledge has failed to present any evidence that NCL destroyed the
device in bad faith. See Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir.
2009).
II. Drug/Alcohol Interaction
Rutledge contends that it was error for the district court to allow NCL to
question Rutledge about the interaction between her prescription medications and
the alcohol she admitted she had consumed. However, Rutledge provides no
citations nor arguments as to why this was error. There is only a brief summary of
Rutledge’s testimony, then a bald conclusion that “[a]llowing these repeated
references to drug-alcohol interaction, with no scientific support, was highly
prejudicial and an abuse of discretion.” This issue is waived. See N.L.R.B. v.
McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in
a perfunctory manner, without supporting arguments and citation to authorities,
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are generally deemed to be waived.”).4
III. Photographs of the Elevators
Rutledge argues that the district court abused its discretion by admitting
photographs of elevators that Pentland said included the one in which he found
Rutledge. At Pentland’s command, Sumen Ray–an NCL security supervisor who
had assisted Rutledge to the infirmary–had taken photographs of the aft elevators
at around 8:00 P.M. on the day of the fall. However, Ray was unavailable to
testify during the trial. Pentland said that the photographs contained a fair and
accurate representation of the elevator in which he had found Rutledge, but he
could not confirm with certainty that the photographs were of the actual elevator
because the elevators all looked alike.
The requirement of authentication “is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” Fed. R.
Evid. 901(a). “A district court’s determination that an article of evidence has been
properly authenticated will not be overturned unless there is no competent
Even if we deem it not waived, Rutledge still fails to show reversible error4
because she did not object to Dr. Salvador Ramirez’s testimony on this same topic and has not
shown how Dr. Ramirez’s testimony would rise to the level of plain error, as is required where a
party fails to object at the district court. See Brough v. Imperial Sterling Ltd., 297 F.3d 1172,
1179 (11th Cir. 2002) (“For evidence and argument to which no objection has been raised, this
court reviews for plain error.”).
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evidence in the record to support it.” United States v. Koziy, 728 F.2d 1314, 1321
(11th Cir. 1984). In this case, there is competent evidence to support the
admission of the photographs. Pentland testified that they fairly and accurately
depicted the elevator in which Rutledge had fallen. Pentland and Ray had both
been in the elevator as they assisted Rutledge immediately after her fall, so they
both knew which elevator was in question. And Pentland had personally inspected
the area around the elevator, looking for any defects. At most, the photographs
were cumulative of Pentland’s testimony. See Drew P. v. Clarke Cnty. Sch. Dist.,
877 F.2d 927, 931-32 (11th Cir. 1989).
Rutledge has failed to show any reversible error in the district court’s
evidentiary decisions. Accordingly, we affirm.
AFFIRMED.5
Rutledge’s motion for oral argument is DENIED.5
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