Morris v. Turnkey Med. Eng'g, Inc.

• Decision Date: 13 July 2012
• Docket Number: No. A12A0199.,A12A0199.
• Citation: 729 S.E.2d 665,12 FCDR 2464,12 FCDR 2596
• Parties: MORRIS v. TURNKEY MEDICAL ENGINEERING, INC.
• Court: Georgia Court of Appeals

729 S.E.2d 665
12 FCDR 2464
12 FCDR 2596

MORRIS
v.
TURNKEY MEDICAL ENGINEERING, INC.

No. A12A0199.

Court of Appeals of Georgia.

July 13, 2012.

[729 S.E.2d 667]

David Neas Schaeffer, Atlanta, for Appellant.

David C. Marshall, Atlanta, for Appellee.

PHIPPS, Presiding Judge.

Following a trial, the jury rendered a verdict in favor of Eric Morris on his claims for negligence against Turnkey Medical Engineering, Inc., and awarded Morris compensatory damages in the amount of $50,000, for injuries he sustained when medical equipment serviced by Turnkey exploded. The trial court entered judgment on the verdict. Morris moved for a new trial, which the trial court denied.

On appeal, Morris contends that the trial court: (1) improperly excluded him from the courtroom during the trial; (2) improperly “appointed” a defense-biased physician to examine him and excluded Morris's counsel from being present during the medical examination; (3) improperly refused to allow certain exhibits that were admitted into evidence to go out with the jury during deliberations; and (4) improperly denied his motion for a new trial because the amount of the verdict was inadequate and contrary to the evidence. For the reasons that follow, we reverse and remand this case to the trial court for a new trial.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that on December 7, 2006, Morris was employed on a rigging crew and was assisting other workers in moving an “MRI” machine to a different location. During the move, the machine exploded and Morris, who was found lying on the floor not far from the machine, did not immediately respond when his supervisor called his name. Just days prior to the explosion, Turnkey had serviced the machine in preparation for it to be decommissioned. The day of the explosion (after the explosion), Morris was treated at an emergency room where he complained of pain in his right ear and wrist. Morris reported that on a pain scale of “zero to ten” his pain level was a “one.”

The emergency room physician, who had been trained in treating traumatic brain injuries, testified that Morris's “appearance was well, psychiatric, he was appropriate; skin, I commented multiple minimal abrasions; his eyes were normal; ear, nose, and throat exam was normal. I also documented a pertinent negative in the fact of his tympanic membranes, his ear drums, were normal.” A neurological exam was conducted and the results were “completely normal.” The following day, Morris was seen at an urgent care facility. The records from that facility showed that Morris was treated there for only an injury to his wrist and that he did not complain of any head injury; Morris denies that he failed to complain of a head injury. In July 2007, Morris was terminated from his place of employment because he refused to take a drug test.

In November 2007, Morris was examined by a neurologist who opined that, to a “reasonable degree of medical certainty,” as a result of the machine's explosion, Morris suffered “a closed-head injury of at least moderate severity. That he had been knocked out. That he was having post-traumatic migraine headaches. That he was having multiple problems with higher cortical thinking and that he might even be having post-traumatic stress disorder with depression....” The neurologist testified that Morris did not state that he had hit his head during the explosion.

[729 S.E.2d 668]

He concluded, among other things, however, that Morris had suffered a concussion, or, in other words, “head-trauma” and was “not thinking right.” He testified that if post-concussive symptoms continued, Morris's injuries could be permanent.

Morris was examined by several other physicians for the brain injury he claimed he had sustained from the explosion. The physicians' opinions varied as to whether Morris had sustained a brain injury.

1. Morris contends that the trial court violated his due process rights by “excluding and restricting [his] presence at trial without an evidentiary hearing, findings of fact, or bifurcation of the damages phase.” We agree that the trial court's exclusion or restriction of Morris's presence in the courtroom during portions of the trial was erroneous and is grounds for a new trial.

The trial transcript shows the following exchange occurred on what appeared to be the second day of trial (the first day being jury selection):

[DEFENDANT'S ATTORNEY]: Judge, this is a little unusual but it is very obvious that Mr. Morris appears to be in a lot of distress here. And, you know, if he is feeling so bad and he is so sick and he has got to keep his head down throughout the whole day I wonder maybe if he needs to leave and go home and get better. But if he is going to be in court, then I just question if that is the appropriate place.

[PLAINTIFF'S ATTORNEY]: Your Honor, he just threw up in the hall.

THE COURT: I know and I feel awful about it.

[PLAINTIFF'S ATTORNEY]: This is one of his symptoms, Your Honor. They say there is nothing wrong with him. He is entitled to be here. The jury is entitled to see—

THE COURT: Well, he is entitled to be here but if he is going to be here he is going to be sitting up. If he is in the courtroom, he is going to be sitting up. This is the way it is going to be.

[PLAINTIFF'S ATTORNEY]: And why is that? He is not entitled to be here?

THE COURT: He is entitled to be here, yes. We are all entitled to be here. But this jury is going to be asked to give him millions of dollars and he is going to sit up and—

[PLAINTIFF'S ATTORNEY]: They are watching every single minute.

THE COURT: Exactly. Which is—

[PLAINTIFF'S ATTORNEY]: If he is sitting up, they may not even notice it. They may not even be able to tell. They are looking at him all the time.

THE COURT: Well, that is too bad. We all may be in pain and they may not be able to tell. But him having his head on the table while the jury is decide is not going to cut it. So, that is just the way it is. If he can be in here and participate, that's fine. If he needs to come and go, fine. But we are not going to engender sympathy in the jury. The jury is going to decide based on the evidence. And, yes, they are going to watch him which is all the more reason that he needs to sit up.

[PLAINTIFF'S ATTORNEY]: Well, Your Honor, if he can't physically sit up because he have such headaches and nausea, what is he supposed to do?

THE COURT: I guess rest and come in. Because we are not going to go through a whole day where he lies his head on the table. He was here yesterday and he sat up.

[PLAINTIFF'S ATTORNEY]: And when he had terrible headaches yesterday, he had to put his head down.

THE COURT: That was fine. That was partially through the day. We are not going to start off at 9:00 a.m.

...

[PLAINTIFF'S ATTORNEY]: I think he has a right to be here.

THE COURT: He does have a right to be here. But we also have a right to behave a certain way in the courtroom. So when he feels better, he can come back in. So go talk to him. If he feels like he can sit up, that's fine. I am not saying he can never put his head down but we are not going through the whole day of trial with him laying his head on the table. We are not

[729 S.E.2d 669]

doing that. So go talk to him and come right back in.

(whereupon [Plaintiff's attorney] exited the courtroom to speak to the plaintiff, Eric Morris)

[PLAINTIFF'S ATTORNEY]: Your Honor, Eric is going to go home and try to come back this afternoon.

THE COURT: Okay.

[PLAINTIFF'S ATTORNEY]: We object to him being excluded from—

THE COURT: I am not excluding him, [Plaintiff's attorney]. Don't even go there.

[PLAINTIFF'S ATTORNEY]: We object to the restrictions placed on his appearance.

THE COURT: Okay. Well, I am sorry you do. That's fine. Bring the jury in.

In Kesterson v. Jarrett,² the Supreme Court of Georgia recently held:

a party may not be excluded from her own trial simply because her physical and...