Showan v. Pressdee

• Decision Date: 29 April 2019
• Docket Number: No. 17-15547,17-15547
• Citation: 922 F.3d 1211
• Parties: Galawezh SHOWAN, Plaintiff-Appellant, v. Patrick PRESSDEE, Krispy Kreme Doughnut Corporation, Defendants-Appellees, Penske Truck Leasing Co., L.P., Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

922 F.3d 1211

Galawezh SHOWAN, Plaintiff-Appellant,

v. Patrick PRESSDEE, Krispy Kreme Doughnut Corporation, Defendants-Appellees,Penske Truck Leasing Co., L.P., Defendant.

No. 17-15547

United States Court of Appeals, Eleventh Circuit.

April 29, 2019

James Sadd, Edward M. Wynn, Slappey & Sadd, LLC, ATLANTA, GA, Talal B. Ghosheh, Ghosheh Law Firm, LLC, LAWRENCEVILLE, GA, for Plaintiff-Appellant.

Carrie Lynn Christie, Emily Y. Wang, Rutherford & Christie, LLP, ATLANTA, GA, for Defendants-Appellees.

Before WILLIAM PRYOR, BRANCH, and ANDERSON, Circuit Judges.

BRANCH, Circuit Judge:

Plaintiff Galawezh Showan appeals from her $ 330,000 jury verdict against Defendants Patrick Pressdee and Krispy Kreme Doughnut Corporation ("Krispy Kreme"). For the reasons that follow, we affirm in part, vacate in part, and remand for a new trial.

I. GENERAL BACKGROUND

A. Facts and Procedural History

On April 27, 2015, Pressdee, an employee of Krispy Kreme, was driving in the course of his employment when he rear-ended Showan while she was stopped at a red light. Pressdee was travelling at 35–40 mph when he collided with Showan, causing her vehicle to hit the vehicle in front of it. On May 5, 2015, Krispy Kreme issued Pressdee a corrective action report that acknowledged Pressdee "was at fault" for the accident. Krispy Kreme's insurance claim summary prepared on May 8, 2015, indicates Showan was "0%" negligent.

Showan had serious injuries and was transported by EMS to the emergency room. She sustained a whiplash-type injury to her cervical spine

, wrist swelling, and facial bruising with a minor laceration. Showan also had previous back issues, which she contends the accident exacerbated. Her back issues were "noticeably improved" following back surgery that preceded the accident. However, post-accident, Showan asserts she is "in pain twenty-four hours a day, not only in her back but in her head, neck, wrist, and legs."

Showan works as a cashier at Walmart, as she did before the accident. A Walmart cashier is required to stand and walk to assist customers, although sitting on a stool is sometimes permitted. Showan now needs to use the stool more frequently, which limits her to working only in the "express line" checkout lanes. Cashiers working in the express lanes can sit more often than cashiers who work the self-checkout stations, as the self-checkout cashiers must move around to assist customers as needed. Showan alleges she will be unable to work while recovering from potential future medical treatment.

On October 19, 2015, Showan filed a personal injury action in the State Court of Gwinnett County, Georgia. Defendants removed to the United States District Court for the Northern District of Georgia.¹

When Defendants answered, they asserted that they breached no duty to Showan, that Showan was comparatively negligent, that Showan assumed the risk, and that Showan's alleged injuries "were not foreseeable." Pressdee's response to Showan's request for admissions, dated January 21, 2016, similarly refused to admit that his actions caused or contributed to the collision or that Showan suffered injuries. At his April 27, 2016, deposition, however, Pressdee stated that he was driving at 40 mph when he collided with Showan, who was stopped at a red light and did nothing to contribute to the collision.

It was not until shortly before trial that Defendants moved, on July 25, 2017, to amend their answers "to streamline the issues to be tried." The district court granted the motion, subject to conditions. The court stated that "Defendants' amended answer will not preclude Plaintiff from seeking attorneys' fees and costs pursuant to state law should she prevail at trial." The court explained that the condition was "appropriate because this case is eighteen months old and only now, on the eve of trial, are Defendants willing to admit significant liability of which they have arguably been aware since the collision at issue." Further, the original answers were to remain admissible for impeachment purposes at trial. Defendants then filed their amended answers on August 17, 2017.

B. Issues on Appeal

The case proceeded to a jury trial that resulted in a $ 330,000 verdict for Showan. But Showan appeals, arguing several of the district court's rulings throughout the proceedings were erroneous.² The issues are as follows:

1. Showan alleges that, during Defendants' opening remarks at trial, they improperly insinuated she was the reason the case did not settle. She argues the district court erred in not giving a curative instruction that she requested.

2. Defendants' experts testified that Showan's doctor charged too much for one of the surgeries she had following the accident. Showan contends this testimony violated the collateral source rule and Rule 403 of the Federal Rules of Evidence.

3. Showan contends that Defendants misled the jury into believing that Showan's doctor was the only person present in the operating room during the surgery, which may have in turn misled jurors into believing the doctor overcharged for the surgery. Citing the rule of completeness, Showan offered the entire record of treatment at the surgical center where the procedure was performed. The district court disallowed the evidence, which Showan argues was error.

4. During closing argument, Showan's counsel invited the jury to measure Showan's damages on a per-hour basis. The district court interjected, telling him not to make a unit-of-time damages argument. Showan argues that such an argument is allowed and that the district court's admonishment was highly prejudicial.

5. Defendants successfully convinced the district court to grant judgment as a matter of law on Showan's lost future wages damages claim, finding the evidence—to the extent any existed—was too speculative to support the claim. Showan disagrees.

6. Showan argues that the district court erred in denying, as a matter of law, her motion to have the jury assess her attorney's fees under a Georgia statute. She contends the statute required the court to hold a hearing on frivolity.

The sixth issue presented is, as the saying goes, last but not least. As explained below, a new trial is necessary because Georgia law required the district court to submit Showan's motion for fees to the jury. The district court's failure to do so is dispositive and requires us to vacate and remand for a new trial. In the interest of judicial economy, we consider Showan's other arguments. For ease of reference, we address each issue separately, tracking the chronological course of the proceedings in the district court, and include relevant corresponding facts as we do so.

II. REFERENCES TO SETTLEMENT

A. Defendants' Motion in Limine and Opening Statement

Defendants moved in limine to exclude "evidence regarding the manner of litigation up to the time of trial." Specifically, they asked the district court to "exclude reference to disputes before trial, including disputes, motions, and court orders on discovery or motions in limine." Further, they moved in limine, under Rule 609 of the Federal Rules of Evidence (presumably they meant Rule 408),³ to exclude evidence of settlement negotiations or discussions. The district court granted the motions.

Yet at trial, Defendants began their opening statement by referring to settlement:

Most cases don't make it this far. They don't come to trial. The parties work really hard to get their cases resolved before they get to this point. We don't want to waste the time of the jurors. We don't want to waste the time of the court.

...

There are certain things we can agree on, and I'm going to go through those with you quickly, and then the things that are sticking points that we can't agree on.

...

Krispy Kreme Donut Corporation admitted responsibility for the cause of the collision. We admit that Mr. Pressdee was working for us at the time. So no issues regarding that. We also acknowledge that Ms. Showan didn't do anything to cause this collision, not a single thing.

...

We also agree ... this was a serious impact.

Showan objected immediately, and the district court overruled the objection. After Defendants concluded their opening, during a recess, Showan requested a curative instruction. In essence, Showan argued that Defendants had insinuated that she was to blame for the case not settling, in light of their stated willingness to admit liability. She urged the court to inform the jury that Defendants had not admitted liability until shortly before the trial. The district court refused to do so, finding that Defendants' statement was accurate at the time it was made and that an instruction "would be too heavy-handed."

B. Whether the District Court Should Have Given a Curative Instruction

Showan argues on appeal that the trial "proceed[ed] with an improperly influenced or tainted jury."

"We review a district court's evidentiary rulings for abuse of discretion." Proctor v. Fluor Enters., Inc. , 494 F.3d 1337, 1349 n.7 (11th Cir. 2007). "Errors in evidentiary rulings are not grounds for reversal unless substantial prejudice results." Peterson v. Willie , 81 F.3d 1033, 1036 (11th Cir. 1996) (quoting King v. Gulf Oil Co. , 581 F.2d 1184, 1186 (5th Cir. 1978) ). "Statements made in oral arguments must be plainly unwarranted and clearly injurious to constitute reversible error." Id .

The district court did not abuse its discretion in not providing a curative instruction. It is arguable that some of the opening statement was unwarranted—and somewhat disingenuous in light of Defendants' motion in limine on the issue. But the statement was not clearly injurious to Showan. Indeed, although the district court did not give a curative instruction to the jury, it did allow Showan to contradict any insinuation of Defendants' previous graciousness during the litigation. Showan requested, over Defendants' objection, that she be allowed to use Pressdee's initial denial of liability. Notably, the district court granted this request. The ability to mount a...