Wal-Mart Stores, Inc. v. Frierson

• Decision Date: 06 June 2002
• Docket Number: No. 2000-CA-00364-SCT.,2000-CA-00364-SCT.
• Citation: 818 So.2d 1135
• Parties: WAL-MART STORES, INC. v. Turner FRIERSON, Jr. and Pinkie Mae Frierson.
• Court: Mississippi Supreme Court

818 So.2d 1135

WAL-MART STORES, INC. v. Turner FRIERSON, Jr. and Pinkie Mae Frierson.

No. 2000-CA-00364-SCT.

Supreme Court of Mississippi.

June 6, 2002.

Lawrence D. Wade, R. Brittain Virden, Greenville, attorneys for appellant.

Richard Benz, Jr., Greenwood, attorney for appellees.

EN BANC.

DIAZ, J., for the Court.

¶ 1. Turner Frierson, Jr. filed suit against Wal-Mart Stores, Inc. (Wal-Mart) for injuries he sustained when he slipped and fell in the vestibule of the Wal-Mart in Indianola, Mississippi. Frierson's wife, Pinkie Mae, joined this suit by asserting a claim for loss of consortium. The jury returned a verdict in favor of Turner Frierson for $100,000.00, and in favor of Pinkie Mae Frierson for $25,000.00. Judgment was entered on that verdict. Aggrieved, Wal-Mart has perfected its appeal.

FACTS

¶ 2. As Turner Frierson was leaving Wal-Mart on August 30, 1996, he slipped and fell in the vestibule. Testimony at trial established that it had rained that afternoon. Wal-Mart employees had left an outside door, which led to the vestibule, open for other employees to return shopping carts inside the store. Frierson asserted that rain blew through the open door into the vestibule and that the rain, combined with water dripping off of the shopping carts, made the tile floor slippery. Wal-Mart alleged it was Frierson's own negligence which contributed to his fall, and in any event, that the Wal-Mart employees had not acted negligently.

¶ 3. Prior to trial, the parties disagreed as to the proof Frierson could present to the jury with respect to the extent of his injuries. The Friersons had no private health insurance. Medicaid and Medicare paid a portion of Frierson's medical expenses. Pursuant to Medicaid/Medicare regulations, that portion of Frierson's expenses not paid by Medicaid or Medicare was "written off," or eradicated, by those who had provided medical assistance to him. The Friersons made no independent payments. Wal-Mart filed a motion in limine attempting to prevent the Friersons from introducing evidence of any of the medical expenses which had been eradicated. Wal-Mart argued that allowing the introduction of these expenses would allow the Friersons to realize an impermissible windfall as no one would ever be required to pay the amounts written off. Judge Gray Evans overruled Wal-Mart's motion based on a court case involving his own mother.

¶ 4. The case proceeded to trial. After judgment was entered on the jury's verdict in favor of the Friersons, Wal-Mart moved for judgment notwithstanding the verdict, for a new trial, and alternatively for a remittitur. This motion was denied. Wal-Mart now appeals to this Court and requests that we reverse the judgment of the trial court and remand this action for a new trial. Wal-Mart assigns the following three points as error:

I. WHETHER THE TRIAL COURT ERRED BY PERMITTING FRIERSON TO INTRODUCE EVIDENCE OF THE AMOUNTS OF HIS MEDICAL EXPENSES "WRITTEN OFF" BY HIS VARIOUS MEDICAL PROVIDERS AFTER PARTIAL PAYMENT OF SUCH EXPENSES BY MEDICAID AND MEDICARE.

II. WHETHER THE TRIAL JUDGE FAILED TO ACT IMPARTIALLY SO AS TO PREJUDICE WAL-MART WHEN HE BASED HIS DENIAL OF WAL-MART'S MOTION IN LIMINE TO EXCLUDE THE AMOUNTS OF THE MEDICAL EXPENSES "WRITTEN OFF" BY MEDICAID AND MEDICARE ON A CASE INVOLVING THE SAME ISSUES TO WHICH HIS MOTHER WAS A PARTY.

III. WHETHER THE JURY'S VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE TO INDICATE THAT IT WAS BASED ON IMPROPER BIAS, PASSION, AND PREJUDICE.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY PERMITTING FRIERSON TO INTRODUCE EVIDENCE OF THE AMOUNTS OF HIS MEDICAL EXPENSES "WRITTEN OFF" BY HIS VARIOUS MEDICAL PROVIDERS AFTER PARTIAL PAYMENT OF SUCH EXPENSES BY MEDICAID AND MEDICARE.

¶ 5. Wal-Mart argues that the trial court erred by allowing the jury to consider evidence of medical expenses which were later written off by Frierson's medical providers pursuant to Medicare and Medicaid regulations. Thus, Wal-Mart concludes the Friersons were permitted to realize an impermissible profit and windfall in the action.

¶ 6. The Friersons respond only that Wal-Mart waived this issue for appeal. The Friersons assert that because Wal-Mart did not file a motion to revise the verdict, did not seek a jury instruction that would have categorized the damages, or put on proof concerning the write offs, this issue is barred before this Court. We disagree. Wal-Mart initially filed a motion in limine specifically targeted to prevent any mention of the amounts of Frierson's medical expenses which were written-off by the various medical providers. During the trial itself, the deposition of one of Frierson's doctors was read into evidence. Counsel for the Friersons objected to the mention of Medicare and Medicaid. Counsel for Wal-Mart responded: "Well then if Your Honor wants to strike every reference to Medicaid, which we still sincerely believe is what the limit should be, we'd like to go ahead and make sure that a copy of this deposition is attached for the record as an offer of proof related to the same thing." The trial judge sustained the Friersons' objection. Later, during Turner Frierson's direct examination, counsel for the Friersons sought to introduce Frierson's medical expenses, and counsel for Wal-Mart restated the objection. The same occurred during discussion of the proposed jury instructions. Finally, Wal-Mart also filed a motion for a judgment notwithstanding the verdict, for a new trial, and alternatively, for a remittitur. This motion was denied. Thus, it can hardly be said that Wal-Mart waived its right to object before this Court. Wal-Mart clearly objected to any proof of the written off portion of the medical expenses before, during, and after the trial. Therefore, we will review this issue on its merits.

¶ 7. We utilize an abuse of discretion standard when reviewing evidentiary rulings by a trial judge. Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 210 (Miss.1998). In order to reverse a case on the admission or exclusion of evidence, the ruling must result in prejudice and adversely affect a substantial right of the aggrieved party. Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995). Thus, not only must the trial judge abuse his discretion, the harm must be severe enough to harm a party's substantial right. We reject Wal-Mart's assignment of error in light of this Court's recent opinion in Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611 (Miss.2001). As Wal-Mart argues in the case at bar, Brandon also argued that compensatory damages are a "windfall" in cases where a plaintiff has been reimbursed by medical insurance. In Brandon HMA, we found that Medicaid payments are subject to the collateral source rule, which states that a tortfeasor cannot mitigate its damages by factoring in compensation the plaintiff received from a collateral source other than the tortfeasor, such as insurance. Id. at 618-20 citing Coker v. Five-Two Taxi Serv., Inc., 211 Miss. 820, 826, 52 So.2d 356, 357 (1951). We went on to find that

Although this Court has never expressly decided whether Medicaid patients can introduce into evidence the full amount of their bills since the Legislature modified the statute, many other jurisdictions have dealt with the question (sometimes as relates to state-run medical assistance programs but the arguments are the same) and applied the collateral source rule. (citations omitted). There is no reason why Medicaid benefits should be treated any differently than insurance payments, and they should be subject to the collateral source rule.

Brandon HMA, Inc., 809 So.2d at 618.

¶ 8. The rationale employed in Brandon HMA to Medicaid payments applies equally to Medicare payments. The trial court did not abuse its discretion in admitting proof of the written off portion of the medical expenses.

II. WHETHER THE TRIAL JUDGE FAILED TO ACT IMPARTIALLY SO AS TO PREJUDICE DEFENDANT WHEN HE BASED HIS DENIAL OF WAL-MART'S MOTION IN LIMINE TO EXCLUDE THE AMOUNTS OF PLAINTIFF'S MEDICAL EXPENSES "WRITTEN OFF" BY MEDICAID AND MEDICARE ON A CASE INVOLVING THE SAME ISSUES TO WHICH HIS MOTHER WAS A PARTY.

¶ 9. Wal-Mart next asserts that Judge Evans strayed from Canon 2(B) of the Code of Judicial Conduct because he based his decision of Wal-Mart's motion in limine on a case involving his own mother. Canon 2(B) states in pertinent part that "judges shall not allow their family, social, or other relationships to influence the judges' judicial conduct or judgment." The comments to Canon 2(A) further state:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restriction on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

Wal-Mart contends the result of Judge Evans's bias was to prejudice the trial. Wal-Mart directs our attention to the following:

BY THE COURT: All right, what have the Appellant [sic] Courts said about this?

BY MR. VIRDEN: My research reveals no Mississippi cases ...

BY THE COURT: I think I can pull up one [case]. You can't cite it though. It's Evans v. Clark County Hospital [sic]. It involves my mother (emphasis added). The 5th Circuit—Judge Lee refused to let the jury hear the full amount of the medical expenses at the trial in Meridian. The judgment we got was extremely low. We appealed it to the 5th Circuit, and they said he was in error. Now, it's a case that's just about that long (Indicating). It says, "This case may not be cited." [sic] So, it is not binding law, so there may not be anything. Mr. Benz, were you able to find anything?

BY MR. BENZ: Well, no, sir. We haven't found anything.

BY THE COURT: By the way, we settled our case for a considerable

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