Thoughts on Judge Mills' Order Granting New Trial in Fred's Dollar Trip-and-fall Case
NMC wrote earlier this week about Judge Mills' decision to grant a new trial on damages in the $1.15 million Fred's Dollar trip-and-fall case that I reported in this post in November. Here is NMC's link to the opinion.
The decision generated some interesting comments over at NMC that are worth reading.
Judge Mills devoted the first part of the opinion to scolding Fred's for arguing that Fred's should have won on liability. I found this odd for two reasons. First, Judge Mills himself characterized plaintiff's claims as “rather weak” in his order denying summary judgment. Having gone on the record characterizing plaintiff's claims as weak, I don't see how Judge Mills could have been offended when Fred's argued that it should have won on liability.
Second, Fred's liability argument appeared to be a routine argument by the side that lost. It's unusual to see a judge scold a litigant for making a routine argument.
The second part of the opinion dealt with the damages issue. Judge Mills acknowledged that the plaintiff had “very significant injuries” and that “a large verdict was fully supported by the evidence.” He then ordered a new trial on damages anyway. Uh?
Judge Mills expressed concern over a note the jury sent out during deliberations asking if Fred's had been paying the plaintiff's medical bills. The opinion states: “[c]learly, the jury would only have been asking about the payment of medical bills if it had received the mistaken impression that they were compensable elements of damages in the case.” Uh? That's not clear to me at all.
The jury's note could have been asking the question because the jury viewed Fred's paying the medical bills as an admission of liability. But really there is no telling what the jury was thinking—at least from the note alone.
The opinion describes plaintiff's failure to put on proof of the medical bills as a tactical decision to try to avoid medical liens. I would have guessed that it meant that the medical bills were not that high and the plaintiff did not want to anchor the jury's deliberations with a modest amount of medical bills. If that were the case, then the defendant should have put the bills in and can't really complain about that issue now.
The opinion implies that a plaintiff is required to put on proof of medical bills and states that plaintiff must present authority supporting this “unusual and arguably misleading trial strategy.” I find it significant that the last five pages of the opinion did not list any supporting authority for the Court's decision.
With the exception of a few jurisdictions, it's much more common for jury verdicts in Mississippi to be on the low end of reasonable than the high end. But you don't see new trials ordered in those cases. Here there is a verdict on the high end and the defendant gets a new trial. That seems unfair—at least to me.
These types of decisions have a chilling effect on settlements because defendants and defense lawyers see that courts will bail them out if things go south at trial. It's just one more thing to make the playing field easier for the defense side. Short-sighted defense lawyers need to understand that decisions like this are bad for their practice because they make already gun-shy plaintiff lawyers even more reluctant to file cases.
I am hearing this question being asked a lot from the defense side of the bar: why aren't plaintiff lawyers filing cases anymore? There are a lot of reasons. But decisions like this are a factor because they contribute to a general perception on the plaintiff's side that the playing field is unfairly tilted for the defense.
One comment at NMC described the decision as “stupid.” Other comments approved of the decision. Personally, I don't get it on multiple levels.
For context, our original report (before the court's order) in the January 2011 issue of the MS Jury Verdict Reporter was as follows:
Premises Liability - Walking out of a retail store, the plaintiff tripped on a barricade that was designed to slow down shoplifters – she fell forward and broke both her arms
Whiteacre v. Fred’s Stores, 3:08-129
Plaintiff: Philip A. Stroud, The Stroud Law Firm, Southaven and James B. Lees, Jr., Hunt & Lees, Charleston, WV
Defense: Robert T. Jolly and Scott B.
Hollis, Watkins Ludlam Winters & Stennis, Olive Branch
Verdict: $1,150,000 for plaintiff less
19% comparative fault
Court: Federal - Oxford
Judge: Michael P. Mills
Date: 11-16-10
Vicki Whiteacre of Hornlake shopped on 12-23-07 at Fred’s Dollar Store in Southaven. She was picking up last minute Christmas items. As she exited the store and entered the busy parking lot, she headed for her car.
What Whiteacre did not appreciate was a wooden barricade in the parking lot. It stood 15 inches high according to Fred’s - Whiteacre described it as 12 inches high. The barricade altered the foot traffic of shoppers (creating a maze of sorts) and was designed to deter shoplifters as they fled.
Whiteacre tripped over the barricade and fell forward on her arms. She broke both her arms. One continues to be virtually non-functioning. She also suffered broken teeth.
Whiteacre sued Fred’s and alleged negligence by it regarding the placement of the barricades. A safety expert, E.J. Lacoste, Jackson, opined that the barricade was unreasonably dangerous in part because it obstructed a public pathway. Namely, patrons that exited the store couldn’t walk directly into the parking lot, but had to make an elaborate set of turns. Beyond her claim for damages, her husband also presented a derivative consortium claim.
Fred’s defended the case that the barricades were not dangerous and in any event, they were open and obvious. It further noted that since the erection of the barricade, some 20,000 customers visited this store and only Whiteacre fell. To the purpose of the barricade, a Fred’s bigwig explained the primary concern was to protect patrons in the parking lot from vehicular traffic.
The jury’s verdict was mixed on fault after 3 hours of deliberation. It was assessed 81% to Fred’s, the remainder to Whiteacre. Then to damages, she took a general award of $1,150,000. The consortium claim was rejected. A judgment less comparative fault was entered for the plaintiff in the sum of $931,500.
Odd decision. Plaintiff is the master of his claim and can ask or not ask for any damages he sees fit. For example, just because a person suffers loss of wages from an injury, he doesn't have to put on proof of that loss if he doesn't ask the jury to award damages for that loss. Simply stating that he couldn't work for x number of days after the injury doesn't make reversible error.
If retried, there will likely be a significantly lower verdict simply because the jury isn't going to see the plaintiff put on the liability witnesses and then have a defendant sit on its hands. It is also likely that the Defendant will admit liability now and act like it wants to pay what is due, but the plaintiff is just greedy.
Anyone who read the NMC thread knows what I thought about the court's order. I completely agree that Plaintiffs were not required to seek the medicals. Lien-dodging is part of the plaintiff's job.
I continue to think that, on the strange circumstance where the meds were put into evidence but then the plaintiffs backed off from an instruction, the court erred by not expressly instructing the jury to disregard proof of meds as an element of damages.
But I don't think the plaintiffs had any "strategy" to confuse the jury, and it was out of line for the court to suggest so. Sounded like they changed their minds, perhaps b/c they were negotiating the lien issue even during the trial and couldn't resolve it.
I think either a new trial or a remittitur was necessary, though I can understand why plaintiffs' lawyers would disagree. $1 million and change is too high for this case even if meds were included, but it's way excessive since meds were excluded (or should have been).
And over and beyond that, the plaintiffs used a pretty tricky strategy, and it turns out that the jury expressed confusion about the very issue the plaintiffs were tricky about. Under those circumstances, the Fifth Circuit was not going to affirm this verdict anyway, nor should they have.