Williams v. Lowe's Home Centers, Inc.

• Decision Date: 04 January 2008
• Docket Number: No. 5D06-2067.,5D06-2067.
• Parties: Dale F. WILLIAMS and Julie Williams, Appellant, v. LOWE'S HOME CENTERS, INC., Appellee.
• Court: Florida District Court of Appeals

973 So.2d 1180

Dale F. WILLIAMS and Julie Williams, Appellant, v. LOWE'S HOME CENTERS, INC., Appellee.

No. 5D06-2067.

District Court of Appeal of Florida, Fifth District.

January 4, 2008.

Rehearing Denied February 11, 2008.

Eric H. Faddis of Faddis & Warner, P.A., Casselberry, and Sharon H. Proctor, Lake Saint Louis, MO, for Appellant.

Jamie Billotte Moses and Jonathan C. Hollingshead, of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, PA., Orlando, for Appellee.

MONACO, J.

This is a disturbing case. It is disturbing because the trial lawyers who were involved know better, or at least should have known better. Although we have concluded that we should affirm the final judgment because the errors complained of were not preserved and were not fundamental in nature, we do so with serious misgivings.

The appellants, Dale and Julie Williams, brought suit against the appellee, Lowe's Home Centers, Inc., as a result of an injury to a pinky finger that Mr. Williams incurred while he was using a circular saw that he had purchased at Lowe's. Although he had a number of liability theories, they basically boiled down to the assertion by Mr. Williams that the saw was sold in a defective condition.

Prior to trial, Mr. Williams made an ore tenus motion in limine to preclude testimony regarding a personal injury action that he brought as the result of an automobile accident that he was involved in several years before. Counsel for Lowe's, Mr. Hollingshead, argued in opposition to the motion that there were aspects of the prior accident and trial that were relevant to the present case. He suggested further:

And I think I should be allowed to inquire on that. If there is some particular question at some point in time, I think we can address it then. I don't think it's a subject for a motion in limine.

The court agreed and denied the motion to exclude "all references" to the prior suit, but said in addition: "However, I don't want us to go too far down that road." The court explained that some references to the suit might be relevant, depending on the context, but that he wanted to address it question by question as it arose during Mr. Williams' testimony. At that point Mr. Faddis, the attorney for Mr. and Mrs. Williams, said:

So would that be without prejudice for the plaintiff to again raise an objection?

To which the trial court responded:

If there's a particular question asked and you think there's an objection to be made at that time, go ahead and make it and I'll make a ruling at that time.

During the course of the ensuing jury trial, Mr. Williams testified with respect to how the injury was incurred, as well as to the damages he had suffered. While testifying on direct, his own attorney asked him about his 1995 accident, the injuries he suffered there, and the prescription pain medication that was prescribed for him,

On cross-examination, the attorney for Lowe's attacked various aspects of the plaintiffs' case on liability, and then moved to the matter of damages. In this connection the attorney for Lowe's delved into the earlier accident in which Mr. Williams had herniated two discs, and inquired further about the pain killers that Mr. Williams had been prescribed as part of his treatment regimen. He then asked Mr. Williams whether he had been able to pay Dr. Bosshardt, a physician who had been treating him for his current injury:

Q. You testified that you couldn't pay Dr. Bosshardt because you didn't have any health insurance, right?

A. I personally do not. Yes, sir.

Q. And you just couldn't afford to pay him anything?

A. I could actually afford to pay him a little bit. Yes, I could afford to pay him some. Yes, I could.

Q. In fact, when your previous case went to trial in June of 97, you received from that jury $148,000 for future medical expenses and future lost wages, none of which that you experienced since then. Is that true?

A. No, sir. It's not.

Q. And why is that?

A. I received $29,000 is what I got.

Q. Do you recall them paying for satisfaction of judgment?

A. I don't know what that is.

Q. $166,000?

A. No, sir. I do not. I don't know where $166,000 ever comes in.

Q. Well, let me show you a certified copy of your final judgment.

A. Sure.

Q. What's the figure of your final judgment?

A. It says $166,260 but I'd sure like to see it.

Q. Don't you think Dr. Bosshardt would like to see it too?

A. I would love for Dr. Bosshardt to see it. I would love to have seen it myself.

Mr. Williams then explained that Dr. Bosshardt knew he had a lawsuit that was progressing, and was nice enough to help him out by continuing to treat him without immediate payment. There was no objection to any of this testimony, even though in this case there was absolutely no relevance to the amount of money received by Mr. Williams in his earlier lawsuit.

Mr. Williams also testified on cross-examination that he was seeing a second doctor on a monthly basis, and that he was paying approximately $300 a month for his office visits and for oxycontin and other prescription medications. Counsel for Lowe's then pointed out that as a result of his earlier automobile accident, Mr. Williams had sought counseling from a mental health counselor and had told her that when he was younger he had difficulty with drug addiction. The records that counsel for Lowe's was reading from stated that at age fourteen—many, many years before—Mr. Williams was addicted to crack cocaine. Mr. Williams was asked whether he shared the fact that as a fourteen year old he was drug addicted with any of his current prescribing doctors.

No. I did not. That's a life that I have left behind over eleven or twelve years ago or more. Actually fourteen. That's a life I've left behind over-I can't even say how long it's been.

There was once again no objection to any of this testimony. After redirect, Mr. Williams rested.

Lowe's unsuccessfully moved for directed verdicts on various counts, and eventually rested. After the charge conference counsel for Mr. and Mrs. Williams moved for a mistrial, asserting that he felt awkward finding out about his client's juvenile cocaine addiction during the cross-examination of Mr. Williams. He argued:

It just struck like a ton of bricks. In reality I was torn between making an objection and moving for a mistrial at that point in time which would have highlighted the fact to the jury on matters that were completely and extremely prejudicial to this case. I attempted to originally move that any and all reference to the personal injury claim that he made in 1995 be precluded from being in front of the jury. Not only do we now have the fact that he made a personal injury claim, but we have evidence of a judgment in the amount of $166,000. I'm not sure how I would explain that sufficiently to remove the taint. We have the jury knowing that my client is a crack cocaine addict, which the probative value of that is none as far as I'm concerned and the prejudicial effect is going to be so great that the taint could not even be removed by a curative instruction.

And so at this point in time reluctantly I have to move for a mistrial. I don't want to do it. I know we've spent a lot of time and resources. I don't believe a curative instruction would work. I think that it would highlight again something that should never have been introduced before the jury. And reluctantly I'm moving for a mistrial.

Counsel for Lowe's claimed that his cross-examination was a result of matters that were brought out on direct, specifically, the oxycontin use and the fact that he couldn't pay his doctors because he did not have sufficient funds. Lowe's counsel felt the crack cocaine addiction was pertinent because Mr. Williams admitted that his doctor questioned him on numerous occasions about the addictive properties of oxycontin and the dangers of addiction to that drug. Counsel for Lowe's argued that Mr. Williams never volunteered to his doctor that he had any prior addiction issues that the doctor needed to address.

And Dr. Bosshardt yesterday testified that that would be the type of information that he would want to be considered if he was prescribing oxycontin and that he would inquire about that. The plaintiff admitted that Dr. Khodor inquired about that.

The court denied the motion for mistrial but noted that the crack cocaine testimony bothered him more than the other matters raised because it was so remote in time to anything that occurred in this case, even though there might have been some tenuous relevance with respect to his treatment by his present physician. The court then said:

I believe what I'll do is give the jurors a curative instruction as to the crack cocaine addiction that they are to disregard that and not make that part of any of the consideration they give in this case. I will give that curative instruction only as to the crack cocaine addiction.

When the jury returned it was instructed to disregard any evidence of the plaintiffs addiction to crack cocaine in that it was not to be considered in any part of their deliberations nor as part of their verdict.

In just under an hour the jury came back with a verdict. The jury found that Lowe's was not negligent and that it's actions were not a legal cause of injury to Mr. Williams. In addition, the jury either found that the circular saw was not defective, or if it was, it was not a legal cause of damage to Mr. Williams. Finally, the jury answered "no" .to the following special verdict question.

Was the circular saw when sold to plaintiff Dale F. Williams in a defective condition reasonably dangerous without substantial change and, if so, was such defective condition a legal cause of damage to plaintiff Dale F. Williams?

Mr. Williams moved post trial for a new trial, and renewed his motion for a mistrial. According to Mr. Williams, the jury's verdict was rendered upon inadmissible and highly prejudicial evidence attacking his character in a case that...