Giant Food Inc. v. Satterfield

• Decision Date: 01 September 1991
• Docket Number: No. 167,167
• Parties: GIANT FOOD INCORPORATED v. Regina E. SATTERFIELD. ,
• Court: Court of Special Appeals of Maryland

Page 660

90 Md.App. 660

603 A.2d 877

GIANT FOOD INCORPORATED v. Regina E. SATTERFIELD.

No. 167, Sept. Term, 1991.

Court of Special Appeals of Maryland.

April 1, 1992.

Christopher R. Dunn (William B. Spellbring, Jr., Timothy E. Howie and O'Malley & Miles, on the brief), Upper Marlboro, for appellant.

Robert L. Siems (John R. Francomano, Keith L. Arnold and Cohan & Francomano, P.C., on the brief), Baltimore, for appellee.

Argued before ROSALYN B. BELL, FISCHER and DAVIS, JJ.

FISCHER, Judge.

Giant Food, Incorporated (Giant) appeals an adverse ruling entered in the Circuit Court for Baltimore County. Regina E. Satterfield cross-appeals the court's decision. This dispute stems from Ms. Satterfield's slip and fall which occurred in Giant Store Number 77 on July 6, 1987. Ms. Satterfield filed a complaint against Giant alleging that she sustained injuries as a result of the accident. At trial, the court granted Giant's motion to dismiss Ms. Satterfield's punitive damages claim. The case proceeded, and the jury found Giant negligent and awarded Ms. Satterfield $2,500 for past medical expenses and $40,000 in non-economic compensatory damages. Giant immediately filed a motion for new trial and an alternative motion for remittitur. The court subsequently denied both motions. Giant poses the following questions on appeal:

1. Did the trial court commit reversible error in refusing to give a limiting jury instruction after Ms. Satterfield's counsel made a per diem damages argument?

2. Did the trial court commit reversible error by allowing testimony about Dr. Kanner's treatment of Ms. Satterfield since Ms. Satterfield failed to identify Dr. Kanner in answers to Giant's interrogatories until one week before trial?

3. Did the trial court commit reversible error by allowing witness Judy Glass to testify for Ms. Satterfield, since Ms. Satterfield failed to identify Ms. Glass in amended answers to interrogatories until just one week before trial?

Ms. Satterfield postures the following question in her cross-appeal:

Did the trial court commit reversible error by refusing to submit the issue of punitive damages to the jury since there was sufficient evidence?

The genesis of this case occurred on July 6, 1987, when Ms. Satterfield stopped in Giant store number 77 to purchase a few items. As she walked through the produce section, she slipped on a puddle of water and fell to the floor landing on her left side. Ms. Satterfield alleges that the pain she feels in her shoulders, neck, elbow and fingers is a direct result of her fall. A former employee of Giant testified that, when the produce stands were cleaned, the drains would occasionally back up and water would collect in puddles on the floor.

I.

Giant avers that the trial court committed reversible error by denying Giant's request for a particular jury instruction. Giant's request followed a statement made by Ms. Satterfield's counsel during closing argument. Ms. Satterfield's counsel suggested that the jury use a per diem calculation to award pain and suffering damages:

I suggest that for your consideration--is fair compensation to be in pain, to suffer, to have permanent injuries, to have lost your right to enjoyment of life and have lost your ability to participate in the things that you enjoyed so much? Seven dollars and fifty cents a day is two thousand seven hundred dollars a year. You multiply that by 43 and you will have a significant number that is about one hundred and thirteen thousand dollars. And it is a large gross number. But I want you to think about each and every day that is involved in those 43 years and see if that is a reasonable number. I suggest that to you for your consideration. Obviously you are free to make whatever decision that you deem appropriate.

Giant objected and the following bench conference ensued:

Giant: Your honor, plaintiff's counsel made what is popularly called a per diem argument. I believe that when that argument is made I am entitled to a cautionary instruction to the jury.

Satterfield: I believe counsel is saying the golden rule.

Giant: No, you made a per diem argument when you asked for seven fifty a day. That argument is within the discretion of the court as to whether to permit it or not. Once it is given the defense is entitled to a cautionary instruction that the argument of counsel is not evidence in the case and ...

Satterfield: You told them that.

The Court: Wait just a second.

Giant: And it's the jury's function if they find liability to set damages.

The Court: I believe that I have instructed this jury on at least two occasions, including within the instructions of law in that regard, and in addition to when [Ms. Satterfield's counsel] made his argument to the jury, he indicated that this is not a hard, fast rule but that it is for the jury to then determine what amount of compensation is fair and reasonable. And I decline to give any cautionary instruction.

Giant contends that the use of a specific dollar amount per unit of time and reference to a predicted life expectancy constitutes a per diem damages argument. Most states have deemed the use of a mathematical formula in determining an award for pain and suffering to be a per diem argument. They have distinguished, however, arguments which only include a lump sum payment that is not derived from multiplication of a unit of time and a dollar amount. See 3 A.L.R. 4th 940 (1981), "Per Diem or Similar Mathematical Basis for Fixing Damages for Pain and Suffering." Although we have not specifically addressed the definition of a per diem argument, we can infer from other cases that Ms. Satterfield's counsel's remarks were representative of a per diem formula. In Harper v. Higgs, 225 Md. 24, 169 A.2d 661 (1960), the Court of Appeals considered the request of a stated amount of dollars for each day of suffering to be a per diem argument. Also, the Court, in Eastern Shore P.S.C. v. Corbett, 227 Md. 411, 177 A.2d 701 (1961), labeled an argument that included a specific dollar amount per hour and the total number of hours to be a per diem argument. Ms. Satterfield's counsel broke down Ms. Satterfield's predicted life expectancy from years into days and arbitrarily assigned a dollar amount to be associated with her daily pain and suffering. Her counsel even went so far as to multiply the days and the dollar amount and then suggested to the jury that this product should equal the amount awarded. Clearly, this formula meets the definition of a per diem argument.

There are numerous arguments both in favor and against the use of per diem arguments. The reasons against allowing the use of per diem argument include: the lack of an evidentiary basis for converting pain and suffering into monetary terms; suggestion of monetary equivalents for pain and suffering amounts to the giving of testimony or to the expression of opinions not disclosed by the evidence; juries are frequently misled into making larger awards; admonitions of the trial court that the argument is not evidence do not erase the prejudice; the defendant is disadvantaged by being required to rebut an argument that has no basis in evidence. Harper v. Higgs, 225 Md. 24, 40 n. 2, 169 A.2d 661 (1960). The arguments in support of a per diem argument include: the jury should be guided by some reasonable and practical considerations; the trier of fact should not be led to make a guess; the absence of any evidentiary yardstick makes it unlikely that counsel's argument will mislead the jury; the argument only suggests one method for the trier of fact to employ in its estimation of damages; the argument is merely suggestive and is not meant as evidence particularly when accompanied by a jury instruction to that effect; when counsel for one side has made such an argument, the opposing counsel is equally free to suggest his own amounts. Harper, 225 Md. at 40, 169 A.2d 661.

The propriety and legality of the per diem argument has been greatly debated in the courts. Many states support the view that it is wholly improper for counsel to suggest a per diem argument to the jury and that such an argument will not be allowed as a matter of law. Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989); Henne v. Balick, 51 Del. 369, 146 A.2d 394 (1958); Ferry v. Checker Taxi Co., 165 Ill.App.3d 744, 117 Ill.Dec. 382, 520 N.E.2d 733 (1987), appeal denied, 119 Ill.2d 556, 119 Ill.Dec. 384, 522 N.E.2d 1243 (1987); Steel v. Bemis, 121 N.H. 425, 431 A.2d 113 (1981); Cox v. Valley Fair Corp., 83 N.J. 381, 416 A.2d 809 (1980); Tate v. Colabello, 58 N.Y.2d 84, 459 N.Y.S.2d 422, 445 N.E.2d 1101 (1983); Ilosky v. Michelin Tire Corp., 172 W.Va. 435, 307 S.E.2d 603 (1983). To the contrary, other states have decided that the argument is wholly appropriate and may be used by counsel at any time. Beagle v. Vasold, 65 Cal.2d 166, 53 Cal.Rptr. 129, 417 P.2d 673 (1966); Paducah Area Public Library v. Terry, 655 S.W.2d 19 (Ky.App.1983); Streeter v. Sears, Roebuck & Co., 533 So.2d 54 (La.App.1988) cert. denied, 536 So.2d 1255 (La.1989); Cafferty v. Monson, 360 N.W.2d 414 (Minn.App.1985); Higgins v. Hermes, 89 N.M. 379, 552 P.2d 1227 (1976). Still other states have decided that the use of the per diem argument by counsel is within the sole discretion of the trial court judge. Vanlandingham v. Gartman, 236 Ark. 504, 367 S.W.2d 111 (1963); Wyant v. Dunn, 140 Mont. 181, 368 P.2d 917 (1962); Johnson v. Brown, 75 Nev. 437, 345 P.2d 754 (1959).

The federal courts are not as divided in their treatment of per diem arguments. Most of the federal courts of appeal follow the Fifth Circuit and allow the use of mathematical formulations for damages when the trial court takes safeguards to assure that the argument will not inflame the jury or result in an excessive verdict. Baron Tube Company v. Transport Insurance Company, 365 F.2d 858 (5th Cir.1966). The Second and Eighth Circuits also allow the per diem argument with broad discretion given to the trial judge....