Filed: Sep. 13, 1995
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 94-60854 Summary Calendar ROGER A. HEDRICK, Plaintiff-Appellee- Cross-Appellant, versus WAL-MART STORES, INC., Defendant-Appellant Cross-Appellee. Appeal from the United States District Court for the Southern District of Mississippi (5:93-CV-22-BrB) (September 25, 1995) Before GARWOOD, WIENER and PARKER, Circuit Judges.* GARWOOD, Circuit Judge: Defendant-appellant Wal-Mart Stores, Inc. (Wal-Mart) appeals the judgment entered against it, fo
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 94-60854 Summary Calendar ROGER A. HEDRICK, Plaintiff-Appellee- Cross-Appellant, versus WAL-MART STORES, INC., Defendant-Appellant Cross-Appellee. Appeal from the United States District Court for the Southern District of Mississippi (5:93-CV-22-BrB) (September 25, 1995) Before GARWOOD, WIENER and PARKER, Circuit Judges.* GARWOOD, Circuit Judge: Defendant-appellant Wal-Mart Stores, Inc. (Wal-Mart) appeals the judgment entered against it, fol..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-60854
Summary Calendar
ROGER A. HEDRICK,
Plaintiff-Appellee-
Cross-Appellant,
versus
WAL-MART STORES, INC.,
Defendant-Appellant
Cross-Appellee.
Appeal from the United States District Court for the
Southern District of Mississippi
(5:93-CV-22-BrB)
(September 25, 1995)
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
GARWOOD, Circuit Judge:
Defendant-appellant Wal-Mart Stores, Inc. (Wal-Mart) appeals
the judgment entered against it, following a jury trial, in the
amount of $62,500. This case arose out of a slip and fall incident
which occurred in the automotive department of the Wal-Mart store
in Vicksburg, Mississippi. The jury verdict of $125,000 in favor
*
Local Rule 47.5 provides: “The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession.”
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
of plaintiff-appellee Roger A. Hedrick (Hedrick) was reduced by
fifty percent to reflect the jury's determination that Hedrick was
fifty percent contributorily negligent. We affirm.
Facts and Proceedings Below
Hedrick was an invitee in Wal-Mart's Vicksburg, Mississippi
store on the morning of February 13, 1990 when he slipped and fell
in the automotive department at approximately 10:00 a.m. Hedrick
claimed that his fall resulted from the presence of some type of
petroleum product on the floor. Hedrick fell on his second trip
down the aisle where the incident occurred. He had stopped on this
second trip in order to pick up a five-gallon drum of hydraulic
oil. Hedrick fell while attempting to place this drum of oil into
his shopping cart. He admitted at trial that he had not seen the
oil product hazard which caused his fall.
As a result of this fall, Hedrick asserted that he suffered
permanent injury to his lower back. He consulted several doctors
during the four years following his accident. Hedrick was
eventually referred to Dr. Salil Tiwari (Tiwari), a neurologist.
The district court permitted the jury to view portions of a
videotaped deposition of Tiwari in which the doctor testified that
it was unlikely that Hedrick's pain would lessen, or that Hedrick
would get any better. Tiwari also testified that Hedrick would
incur additional medical costs. Hedrick presented other witnesses
who testified that his condition had deteriorated since the
accident, during which time he has had minimal employment.
Hedrick elicited the testimony of two former Wal-Mart
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employees to establish the existence of the hazard--oil on the
floor--and Wal-Mart's awareness of it. Dewayne Washington, a Wal-
Mart stock clerk and sales clerk at the time of the accident,
testified that he had discovered oil on the floor of the aisle
adjacent to the aisle where Hedrick fell when he arrived at work
around 7:00 a.m. on the morning of the accident. Washington
testified that he had cleaned up this oil, but that there was a
space between the floor and the bottom of the counter which
separated the two aisles; he further testified that he did not,
prior to Hedrick's accident, check the other side of the counter to
see if oil had seeped into the aisle where Hedrick fell. In an
earlier deposition, Washington testified that he had seen no oil in
the aisle where the accident occurred, nor had he been in that
aisle prior to the accident. He said nothing in his deposition
about finding oil spilled on the floor of the adjacent aisle.
Hedrick also relied on the testimony of former Wal-Mart
employee Steve Wiley. Wiley had been the assistant manager of the
Vicksburg Wal-Mart on the date of Hedrick's accident. Wiley
testified that he arrived at the scene of the accident shortly
after Hedrick's fall, and observed oil running down the counter
next to where Hedrick had fallen and accumulating on the floor. On
cross-examination, Wiley testified that he had no knowledge of
whether or not the oil had pooled on the floor prior to Hedrick's
fall. He also acknowledged that, in the incident report he had
prepared shortly after the accident, he had indicated that the
aisle floor was clean and dry.
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Other Wal-Mart employees testified that no oil had been
discovered on the floor of the aisle where Hedrick fell during the
several safety inspections conducted prior to his fall. The
department manager testified that he had walked the aisle
approximately ten to fifteen minutes before the accident, and had
seen nothing.
Hedrick's counsel of record changed twice before Paul Loyacono
and Jerry Campbell (Loyacono and Campbell)--who would ultimately
represent Hedrick at trial--were retained on October 4, 1994.
Hedrick's trial began on October 24, 1994. Hedrick moved to amend
the pre-trial order on October 5, 1994, the day after Hedrick's
previous counsel, Michael Pond (Pond), withdrew as counsel of
record. The district court qualifiedly granted this motion on
October 17, 1994.
In his motion to amend the pre-trial order, Hedrick sought to
add Dr. Tiwari as a witness. The district court found Tiwari to be
a "treating physician" and allowed that requested amendment. The
district court refused, however, to allow Dr. Tiwari's videotaped
testimony concerning the results of Hedrick's myelogram to be put
before the jury. The district court likewise refused to amend the
pre-trial order to allow Hedrick to depose another doctor, Daniel
Dare.
Hedrick moved for judgment notwithstanding the verdict on the
question of contributory negligence, or for a new trial on damages,
on October 31, 1994. Wal-Mart moved for judgment notwithstanding
the verdict, or for a new trial on liability only--or on all
4
issues--on November 7, 1994. These motions were all denied by the
district court.
Wal-Mart appeals the judgment, and Hedrick cross-appeals.
Discussion
I. Wal-Mart's Appeal
We review the district court's denial of Wal-Mart's motions
for directed verdict and for judgment as a matter of law de novo.
If there is substantial evidence opposed to the motions, "that is,
evidence of such quality and weight that reasonable and fair minded
men in the exercise of impartial judgment might reach different
conclusions . . . ," then we must affirm the district court's
denial of the motions. E.E.O.C. v. Louisiana Office of Community
Servs., 47 F.3d 1438, 1443 (5th Cir. 1995) (quoting Boeing Co. v.
Shipman,
411 F.2d 365, 374 (5th Cir. 1969) (en banc)). In
reviewing the record, we must view the evidence and draw all
reasonable inferences therefrom in the light most favorable to the
party against whom the motions for directed verdict and judgment as
a matter of law were filed.
Id. We review the district court's
denial of Wal-Mart's motion for a new trial under an abuse of
discretion standard. Conway v. Chemical Leaman Tank Lines, Inc.,
687 F.2d 108, 112 (5th Cir.) (citations omitted), reh'g denied,
Conway v. Chemical Leaman Tank Lines, Inc.,
693 F.2d 133 (5th Cir.
1982).
Wal-Mart contends that Hedrick failed to meet his burden of
establishing either that Wal-Mart created the hazard which led to
Hedrick's fall or that the hazard existed for a period of time
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sufficient to impute to Wal-Mart actual or constructive knowledge
of its presence. In support of this contention, Wal-Mart correctly
notes that Hedrick's proof on these points comes entirely from the
testimony of former employees Washington and Wiley. Wal-Mart's
argument boils down to nothing more than an attack on the
credibility of this testimony, however, and the evidence provided
by Washington and Wiley was clearly of such quality and weight that
fair-minded jurors could have found that Wal-Mart either created
the hazard or had actual or constructive knowledge of its
existence. The alleged inconsistencies between Washington's
deposition and trial testimony, and Wiley's incident report and
trial testimony, do not mandate a different conclusion. There is
likewise no merit to Wal-Mart's contention that the district
court's denial of its motion for a new trial constituted an abuse
of discretion.
Wal-Mart additionally contends that the district court erred
in amending the pre-trial order to allow Hedrick to designate Dr.
Tiwari as a "treating physician"; Wal-Mart argues that it was error
to allow portions of Tiwari's videotaped testimony as this doctor
was not a treating physician, but only an ordinary expert. In
support of this contention, Wal-Mart asserts that no treatment was
provided by Dr. Tiwari; Tiwari merely testified regarding possible
treatment, such as epidural steroid, and the possibility and costs
of a laminectomy.
This Court will review a district court's decision to amend
pre-trial orders in this context under an abuse of discretion
6
standard. Nobby Lobby, Inc. v. Dallas, 970 F.2d 82, 93-94 (5th
Cir. 1992). The trial court's discretion is to be guided by
consideration of the following factors: (1) the importance of the
witness's testimony; (2) the prejudice to the other party of
allowing the witness to testify; (3) the possibility of curing such
prejudice by granting a continuance; and (4) the explanation for
the party's failure to identify the witness.
Id. (citations
omitted). As to the first factor, when Hedrick's counsel moved for
this amendment to the pre-trial order, no doctors had yet been
deposed by Hedrick's previous counsel; Hedrick sought Tiwari's
testimony to confirm the diagnosis of Dr. Cronin, Hedrick's family
physician. Hedrick argued that, without these depositions, there
could have been no evidence introduced of future disabilities, pain
and suffering, or expenses. With regard to the second factor, Wal-
Mart argues that it was prejudiced by Tiwari's testimony because
Tiwari substantially clouded the picture Wal-Mart had been
developing of Hedrick's medical condition. While the timing of
this amendment may have provided Wal-Mart with legitimate grounds
for a continuance, they nonetheless failed to seek one. As to the
third factor, implicitly finding that Wal-Mart was not prejudiced
by the amendment to the pre-trial order, the district court never
addressed the necessity of a continuance; however, it is noteworthy
that Hedrick offered as an accommodation to Wal-Mart a pledge not
to oppose any motion brought by Wal-Mart for continuance.
Regarding the final factor, Hedrick's counsel at trial were
retained approximately three weeks prior to trial. On the day they
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were hired, counsel filed a motion with the district court, seeking
leave to depose Dr. Tiwari and other doctors. While this factor
may somewhat weigh in Wal-Mart’s favor, the district court was not
obliged to give it determinative significance. All things
considered, we are unable to conclude that the district court
abused its discretion in admitting this evidence.
II. Hedrick's Cross-appeal
Hedrick contends that the district court erred when it refused
to grant Hedrick's motions for judgment as a matter of law--setting
aside the jury's finding of contributory negligence--and for a new
trial as to damages. We affirm the district court's denial of
these motions. Certainly, there is evidence of such quality and
weight that reasonable and fair-minded men in the exercise of
impartial judgment might conclude that Hedrick was contributorily
negligent. The jury could reasonably have concluded that both
Hedrick and the Wal-Mart employees were negligent in failing to
notice the oil in the aisle where Hedrick fell. The district
court's denial of Hedrick's motion for new trial was not,
therefore, an abuse of discretion. E.E.O.C. v. Louisiana Office of
Community Servs., 47 F.3d 1438; Conway v. Chemical Leaman Tank
Lines, Inc.,
687 F.2d 108, supra.
We likewise affirm the district court's refusal to amend the
pre-trial order to permit testimony by Dr. Dare and to allow Dr.
Tiwari's myelogram testimony. The district court concluded that
Dr. Dare was a non-treating physician to whom Hedrick was sent by
counsel Hedrick retained on October 4, 1994, and the court ruled
8
that it would allow testimony only from treating physicians. As a
corollary to this ruling, the district court excluded Dr. Tiwari's
testimony regarding the myelogram procedure, as this testing was
integrally connected to the efforts of Dr. Dare. Under the
circumstances of this case, the district court's refusal to allow
this evidence was not an abuse of discretion.
Turning to Hedrick's final point of error, relating to the
district court's amendment of the pre-trial order, we are unable to
conclude that the district court abused its discretion or otherwise
erred in ordering that Hedrick pay Wal-Mart up to $1,000 in
reasonable attorneys' fees to compensate Wal-Mart in part for the
inconvenience and expense of the last-minute depositions of Dr.
Tiwari and Dr. Ervin Cronin.
Accordingly, the district court’s judgment is
AFFIRMED.
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