Heather Reffaie sued Wal-Mart Stores, Inc for her slip and fall. She won a jury verdict, which was then appealed.
This is not my case. However, I have settled many slip and fall cases against Florida stores.
The District Court of Appeal of Florida, Fourth District, issued its ruling on September 5, 2012.Florida’s 4th DCA handles appeals from Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee Counties. The 4th DCA is located in West Palm Beach, Florida.
I assume that the slip and fall happened in one of these counties. This is because you usually have to sue Walmart in the trial court that governs the county where the slip and fall happened.
At trial, a jury found the shopper eighty percent comparatively negligent for her slip and fall at a Wal-Mart store.
Upon entering a Wal-Mart, she slipped and fell. She claimed that there was a slippery substance on the floor and that she sustained injuries requiring neck and shoulder surgeries. Wal-Mart claimed that she was comparatively negligent.
The jury returned a verdict finding that Wal-Mart was negligent and its negligence resulted in injuries to Heather. The jury found that Wal-Mart was twenty percent negligent, while Heather was eighty percent negligent.
Tip: Slip and fall cases are difficult. As you can see, even though the jury found Walmart to be at fault, it placed most of the fault on the shopper. That being said, some slip and fall cases can result in large settlements and verdicts.
The jury awarded Reffaie $49,158 for medical expenses and $50,000 for past pain and suffering, equaling an award of $99,158. Twenty percent of that total — the award to which the customer was entitled based on the jury’s finding of comparative negligence — equaled $19,800.
After the verdict was read, the customer asked for a new trial. The court denied her request.
Walmart Paints Bad Picture of Customer’s Neurologist at Trial
Walmart’s lawyer questioned Heather’s expert witness and treating neurologist, Dr. Gomez, about his relationships with personal injury law firms.
“[Walmart’s Lawyer]. Now, you have existing business relationships with the personal injury lawyers who represent Heather, where they refer you clients throughout the State of Florida, don’t they?
[Dr. Gomez]. Again, what do you mean by “business relationship”?
[Defense Attorney]. I mean, they sign up a client and bus them to your office,… for you to treat them and eventually come to a court of law, and that’s your relationship with at least one personal injury law firm, correct?
[Dr. Gomez]. That is not true.”
Although there was some back and forth between Walmart’s attorney and Dr. Gomez after this questioning, Dr. Gomez never admitted that any part of the statement was true.
At another point, the following exchange took place:
“[Walmart’s lawyer]. Is it your testimony under oath that you are currently unaware of, let’s say, at least five, as much as ten, personal injury claimants being placed in a van, being driven … to your office in West Palm Beach for you to perform percutaneous discectomies and driven back for the purposes of litigation?
My Note: A percutaneous discectomy is a spine surgery.
[Dr. Gomez]. That was brought up in a deposition, which I was not aware of, their form of transportation.
[Walmart lawyer]. I don’t even know what you’re talking about because I don’t have that deposition, but I assume that I am accurate, correct?
[Dr. Gomez]. I’m not sure you’re accurate because I don’t know that to be fact.”
Walmart’s lawyer also asked about Dr. Gomez’s financial compensation from the attorneys based on referrals.
Dr. Gomez replied that he receives payment from patients for the treatment he provides and did not admit to receiving any payment from the law firms. Heather’s lawyer objected to this line of questioning for relevancy.
The trial court overruled the objection. In closing argument at trial, with respect to Dr. Gomez, Walmart’s lawyer argued:
“Then comes Dr. Gomez. Now, Dr. Gomez, what he does is he has existing relationships with personal injury law firms. They sign them up and bus them over.
…. [At this point, there was an objection by the customer’s lawyer for facts not in evidence. The trial court overruled the objection and instructed the jury to rely on its own memory of the evidence.]
I had the whole conversation. At least five, maybe as many as ten, get down to your office, you do a procedure, a five-minute procedure. After all of them you bus them right back up for the purposes of litigation.”
He took offense with the word “transport” or “bus”.
The appeals court looked to see if Walmart, who benefited from this error, has shown that, more likely than not, the error did not influence the jury and thereby contribute to the verdict.
Here, Reffaie correctly argued that there was no evidence to support Walmart’s attorney’s argument in closing that law firms transported their clients to Dr. Gomez en mass, or that Dr. Gomez had any “business relationships” with personal injury law firms.
At one point, Walmart’s lawyer even suggested that it was Dr. Gomez who bused the clients “right back up for the purposes of litigation.” We agree that the improper comments at issue were intended to, and did, call the doctor’s credibility and objectivity into question in the eyes of the jurors.
The appeals court said the line of questioning was ok, however the problem is that Walmart’s attorney did not obtain the desired answers but continued in closing argument as though he had.
It was Walmart’s burden to show that the statements in closing argument, more likely than not, did not influence the jury’s verdict.
As Heather argued in her appeal, “Wal-Mart painted a picture of an assembly-line surgeon, whose medical practice is fueled by personal injury lawsuits,” notwithstanding that Walmart’s lawyer never got Dr. Gomez to admit those insinuations nor presented any independent evidence of their truthfulness.
After a review of the evidence, the appeals court couldn’t conclude that Wal-Mart has shown that the improper comments, more likely than not, did not contribute to the verdict.
Jury Only Awards $49,158 of $150,000 in Medical Bills
The appeals court noted that despite medical bills in the amount of $150,000, the jury awarded only $49,158 for medical expenses. The appeals court therefore concluded that the trial court abused its discretion in denying the customer’s request for a new trial.
From the appeals court’s review of the case, it was also confident that the effect of the improper comments was limited to damages and did not affect the pain and suffering award.
Appeals Court Orders New Trial As To Medical Bills Only
The appeals court ordered a new trial on damages only.
A Miami, Florida lawyer represented Heather, the customer. Philip J. Kantor and David Tarlow of Quintairos, Prieto, Wood & Boyer, P.A., Fort Lauderdale, represented Wal-Mart Stores.
If the court believes that Walmart’s attorney’s arguments are improper and it results in them awarding less than the past medical bills amount, it can order a new trial to determine the past medical bill amount.
Side Note: It appears that the jury did not award any money for future pain and suffering or future medical expenses. I assume that the jury believed that the customer’s pain had resolved by the time of time of trial.
I don’t know whether the case settled before the new trial.
The appeals judges were Stevenson, J., Taylor, and Hazouri, JJ.
Want to learn more about Walmart accident claims in Florida?
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