Smith v. Kmart Corp.

Decision Date03 March 1999
Docket NumberNos. 98-1223,98-1738,s. 98-1223
PartiesDelia A. SMITH & James Orth, etc., Plaintiffs, Appellees, v. KMART CORPORATION, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Thomas M. Elcock, with whom Morrison, Mahoney & Miller was on brief, for appellant.

Eric M. Quetglas-Jordan, with whom Jose F. Quetglas-Jordan, Quetglas Law Offices, Zygmunt G. Slominski, James M. Orr and Francis & Orr, L.L.P. were on brief, for appellees.

Before TORRUELLA, Chief Judge, SELYA, Circuit Judge, and ACOSTA, * Senior District Judge.

TORRUELLA, Chief Judge.

Before the Court is defendant-appellant Kmart Corporation's ("Kmart") appeal of a jury verdict in favor of husband and wife plaintiffs-appellees Delia Smith and James Orth. Smith and Orth brought a negligence suit when Smith was struck by a falling ice cooler while shopping with Orth in a Kmart store. The jury awarded Smith and Orth damages totaling $800,590, including $500,000 to Smith and $250,000 to Orth for noneconomic damages. After plaintiffs accepted a remittitur of one portion of the award in the amount of $8,611.20, the district court entered final judgment in favor of plaintiffs in the amount of $1,186,428.37, representing: (1) the remitted damage awards of $791,978.80; (2) prejudgment interest in the amount of $123,933.57; (3) costs in the amount of $6,516; and (4) attorneys' fees in the amount of $264,000. Kmart appeals from this judgment, requesting that this Court: (1) vacate the award due to errors allegedly committed at trial, or (2) remit certain components of the damage award due to their excessiveness. We reject Kmart's claims of reversible error, but agree that a portion of the damage award is so excessive as to warrant a remittitur.

BACKGROUND

Because Kmart asks us to review a jury award of damages for excessiveness, we must examine the evidence in the light most favorable to the award, drawing all possible inferences in its favor. See Havinga v. Crowley Towing and Transp. Co., 24 F.3d 1480, 1483 (1st Cir.1994).

At approximately 11:00 a.m. on March 4, 1995, Smith and Orth were shopping at the Kmart store in Humacao, Puerto Rico. They were looking at lounge chair cushions which hung from the ceiling, and they asked a Kmart employee to assist them in bringing one of the cushions down. While Smith and Orth waited for that assistance, a 48-quart Coleman ice cooler fell from a shelf behind them. The 8.5-pound cooler fell from a height of approximately 10.5 feet, struck Smith on the back of her head, and rolled down her neck and shoulders. Smith fell to her knees and then backwards to the ground. She lost consciousness for 40-45 seconds and briefly stopped breathing, prompting Orth to administer mouth-to-mouth resuscitation.

When Smith regained consciousness, she felt a sharp pain in her head and heard ringing in her ears. Smith could not feel her left side, causing her to fear that she was permanently paralyzed. When the paramedics arrived, they placed a cervical collar on Smith's neck, placed a board underneath her, and moved her into an ambulance. Smith was taken to the Ryder Memorial Hospital and was diagnosed with a cerebral trauma. A CAT Scan was performed, but the results were normal. She was released a few hours later with a prescription for pain medication and instructions to remain under observation for 24 to 48 hours.

At home, Smith suffered from dizziness, nausea, headaches, numbness and weakness on her left side. She also began to experience anxiety, restlessness, irritability, sleeplessness, difficulty with her speech, and short-term memory loss. Smith returned to Ryder Hospital on March 7, 1995. She was continued on pain medication and was prescribed a muscle relaxant and an anti-inflammatory medication. She was ordered to continue to rest and to see a neurologist. On March 16, 1995, Dr. Hector Cases Gallardo diagnosed Smith as suffering from a cervical radiculopathy, which is inflammation of the nerve in the cervical root. Dr. Cases ordered a cervical MRI, which revealed ligament inflammation and the swelling and sliding of a posterior disc in her neck. Dr. Cases determined that the resulting compression on the nerve in her cervical spine caused Smith muscle spasms, inflammation and pain in her neck.

Smith continued to experience muscle spasms, pain and movement limitations, so she went to another neurologist, Dr. Angel Chinea, on August 24, 1995. Dr. Chinea diagnosed Smith as suffering from a post-concussion syndrome, cervical whiplash, and a muscular-skeletal injury to her cervical area. Dr. Chinea also made a clinical finding of cervical radiculopathy. In December of 1995, Smith went to the Baylor University Medical Center in Dallas, Texas. She was examined by Dr. Sam Finn and placed on a six-week rehabilitation program. She also began a home therapy program, which she was still engaging in as of the time of trial.

On February 29, 1996, Smith and Orth filed a complaint against Kmart on behalf of themselves and the legal conjugal partnership formed by them. The complaint was premised on diversity jurisdiction, 28 U.S.C. § 1332(a). It alleged that Kmart was negligently responsible for the accident and sought damages in the form of: (1) Smith's physical and emotional pain and suffering; (2) Orth's emotional pain and suffering and loss of consortium; (3) the loss of work that Smith could no longer perform; (4) past and future medical expenses; and (5) attorneys' fees and interest.

Meanwhile, on June 12, 1996, Smith went to see Dr. Fernando Cabrera, a psychiatrist, for the first time. Dr. Cabrera diagnosed Smith with post-traumatic stress disorder ("PTSD"). Dr. Cabrera found that Smith suffered from nightmares, irritability, mood changes, chronic major depression, difficulty sleeping, and impairment in her social and occupational relationships. Dr. Cabrera recommended that Smith continue psychiatric treatments for three to five years.

During the course of discovery, the district court ordered Kmart to produce its loss control manager, Ben Guffy, for deposition on June 13, 1997 in Puerto Rico. Despite the order, Kmart failed to produce Guffy on that day and offered no satisfactory reason for its failure. Plaintiffs moved for sanctions. Although Guffy was later made available for deposition by telephone, the district court issued a September 15, 1997 Order noting Kmart's "reprehensible" conduct during discovery, including its refusal to produce Guffy on the proper day and its refusal to provide other discovery requested by plaintiffs and ordered by the court. The court then stated that it was considering sanctioning Kmart by instructing the jury: (1) that Kmart refused to produce Guffy for deposition; (2) that the jury should infer from that refusal that Guffy's statements would have been harmful to Kmart's case; and (3) that the jury must accept as true that Kmart knew that merchandise in its stores was often stacked in an unsafe manner, frequently causing that merchandise to fall from shelves and severely injure Kmart's customers. Kmart objected to the giving of a sanction instruction, but did not object to the language of the instruction.

Trial commenced the following day. In addition to the medical testimony mentioned above, Dr. Chinea testified at trial that Smith still suffers from many of the symptoms of the whiplash injury, including muscle spasms, nerve damage, severe pain, and decreased functioning of the cervical muscles. Dr. Chinea testified that this condition is permanent, meaning that the symptoms will recur and aggravate whenever Smith engages in physical activity. Dr. Chinea testified that Smith will experience pain intermittently for the rest of her life and at times will be completely disabled for days at a time. Dr. Chinea also testified that Smith will have to continue with her medication and therapy indefinitely.

Smith and Orth testified about the accident and the effect Smith's injury had on their lives. Smith testified that, at the time of her injury, she was forty-three years old and had been married to Orth approximately three years and three months. Smith testified that, due to her injury, she could no longer: (1) travel or continue with her responsibilities in their business; (2) perform normal household chores; or (3) engage in the daily activities of walking, dancing, and taking aerobics classes. She also testified that she experiences constant pain and continually fears additional injury, to the extent that she does not go anywhere, does not allow anyone to stand behind her, does not go into stores like Kmart, and does not drive.

Orth testified that he saw the accident and feared that Smith was dead. He testified to his observations regarding Smith's condition and their multiple visits to various doctors. He testified to the medication Smith has taken and will continue to take and to the therapy that Smith has undergone and will continue to undergo. He testified that he and Smith have had a strained relationship since the accident in that they do not touch, talk, or have a physical relationship any longer. He testified that Smith could no longer meaningfully help with their business and that he now works 18 to 20 hours per day and has no personal life. He testified that he was also forced to do many of the household chores Smith had done previously. He stated that he constantly worries about Smith's condition, but has never seen a psychiatrist or other professional about his mental condition.

Plaintiffs also presented testimony from their friends and neighbors, Arlene and Patrick Fromer. They testified that they met the plaintiffs approximately three years before trial and that Smith became a "different person" after the accident. They testified that Smith no longer engaged in activities such as dancing, walking, and taking aerobics classes. They testified that their once-frequent socializing During his closing argument, plaintiffs'...

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