Van Bumble, Helen v. Wal-Mart Stores Inc ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2231
HELEN VAN BUMBLE and
DOUGLAS VAN BUMBLE,
Plaintiffs-Appellants,
v.
WAL-MART STORES, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 01 C 968—Kennard P. Foster, Magistrate Judge.
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ARGUED DECEMBER 2, 2004—DECIDED MAY 6, 2005
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Before BAUER, POSNER, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-Appellant Helen Van
Bumble (“Helen”) slipped on a hot dog and fell in the food
service area of a Wal-Mart store, suffering injuries to her
back and tailbone area. Helen sued Defendant-Appellee Wal-
Mart for negligence, and her husband, Douglas Van Bumble
(“Douglas”), sued for loss of consortium. The jury returned
a verdict in favor of Helen on the negligence claim and in
favor of Wal-Mart on the loss of consortium claim. Dissatis-
fied with the jury’s damage award, the Van Bumbles moved
2 No. 04-2231
alternatively for a new trial on the merits, a new trial lim-
ited to damages, or additur. The district court denied these
motions, and we affirm.
I. Background
On November 6, 1999, Helen was working for the
Photographic Corporation of America, which operated a shop
in Wal-Mart. That afternoon, Helen went to Wal-Mart’s food
service area to buy lunch. She had gone to lunch at this snack
bar area each day since she started her job eight days earlier.
Seeing a long line ahead of her and only one clerk working
behind the counter, Helen got out of line and walked around
a group of tables. At this point, she slipped and fell on a hot
dog that was on the floor, landing on her buttocks and left
arm. Helen later testified at trial that she did not look down
toward the ground as she was walking because her former
training as a model taught her to walk with her head up. A
Wal-Mart employee investigated the incident and filed a
written report complete with photographs of the offending
frankfurter. Helen was taken to the emergency room at
Community Hospital on November 6 and was treated by Dr.
Sidebottom. Helen continued to see Dr. Sidebottom for
treatment until January 28, 2000. She was also treated by
Dr. Ronald Sheppard, a chiropractor, and Dr. Edward
Kowlowitz, who specialized in pain management. In January
2003, Helen began treatment with Dr. Palmer Mackie. Dr.
Mackie reported that as much as 65% of Helen’s ongoing
pain could be related to something other than her fall on
November 6, 1999, and also noted that prior to her fall at
Wal-Mart, Helen had sought treatment for chronic pain.
The Van Bumbles filed a complaint for negligence and loss
of consortium on May 30, 2001. After a three-day trial in
April 2004, the jury returned a verdict in favor of Helen on
the negligence claim. Having determined that Wal-Mart was
51% at fault and Helen was 49% at fault for her fall, the jury
No. 04-2231 3
found that Helen’s total damages were $25,537 and there-
fore awarded her $13,024 in accord with the Indiana
Comparative Fault Act. The jury found in favor of Wal-Mart
on the loss of consortium claim. The Van Bumbles appeal the
verdict on the loss of consortium claim and also appeal the
amount of damages awarded on the negligence claim.
II. Discussion
A. Jury Instructions
Plaintiffs claim that they are entitled to a new trial be-
cause the district court’s instructions to the jury regarding
the taxation of an award for damages and Indiana premises
liability law were in error. We review jury instructions as a
whole to determine if they adequately inform the jury of the
applicable law. This requires a two-step process: (1) de-
termining whether the instructions misstate or fail to fully
state the law; and if so, (2) determining if the inadequate
instructions confused or misled the jury, thereby causing
prejudice. Lalvani v. Cook County, 396 F.3d 911, 914 (7th
Cir. 2005).
First, the court’s instruction that any award for damages
would not be subject to taxation was not in error. The in-
struction stated the applicable law correctly and was not
misleading; rather, it clarified for the jury that it need not
award an inflated amount of damages on the faulty premise
that their award would be subject to taxation. See generally
Selby v. Lovecamp, 690 F. Supp. 733 (N.D. Ind. 1988).
Second, the instruction given by the district court regard-
ing premises liability also correctly stated the applicable
law. The Van Bumbles assert that the district court erred,
however, in failing to give two of their proposed instructions
regarding the self-service method of merchandising and
recurring dangerous conditions. We need not concern
ourselves with determining whether the failure to give these
4 No. 04-2231
instructions was error; the jury ultimately determined that
Wal-Mart had breached its duty of care and found in favor
of Helen on her negligence claim. Therefore, any possible
error in failing to give the proposed instructions was harm-
less and did not prejudice the Van Bumbles.
B. Laura Whitson’s Testimony
Helen testified at trial that she did not have any chronic
pain problems before her fall at Wal-Mart, nor was she reg-
ularly taking any prescription pain medication. The district
court allowed testimony by Laura Whitson, a pharmacist,
who authenticated Helen’s prescription records and stated
that Helen regularly filled prescriptions for pain medications,
including Celebrex and Vioxx, prior to her fall. Plaintiffs
contend that it was error to allow this rebuttal testimony. A
district court’s decision to admit rebuttal testimony is
reviewed for an abuse of discretion.
There was no abuse of discretion in the instant case.
Helen’s testimony regarding her medication is subject to a
credibility determination. She specifically testified that she
was not regularly taking any prescription pain medication
prior to her fall. The rebuttal evidence simply put her credi-
bility to the test. Such is the nature of rebuttal testimony; it
was appropriate for the jury to receive this evidence.
C. Exclusion of Testimony Regarding Medical
Insurance
Wal-Mart filed a motion in limine, which the district court
granted, to preclude plaintiffs from testifying as to their lack
of medical insurance and their financial situation. During
trial the plaintiffs moved the court to reconsider its ruling,
but were denied. Plaintiffs now assert that the court erred
in excluding this testimony. Again, we review for an abuse
of discretion. Heft v. Moore, 351 F.3d 278, 283-84 (7th Cir.
No. 04-2231 5
2003). Evidence regarding the Van Bumbles’ insurance
status and relative wealth or poverty is irrelevant and would
have been prejudicial to the jury’s determination of dam-
ages. The exclusion of this evidence was not an abuse of
discretion. The Van Bumbles moved the court to reconsider
the motion in limine at trial because they were concerned
that Wal-Mart would attempt to argue that Helen did not
really suffer any pain during the two-year period that she
did not seek medical treatment. The district court stated
that if Wal-Mart opened the door by eliciting testimony as
to why Helen did not seek treatment for that two-year
period, then plaintiffs would be given the opportunity to
explain their insurance situation. Wal-Mart never opened
the door. Consequently, the district court’s refusal to lift the
motion in limine at trial was also correct.
D. Jury Verdicts
The Van Bumbles also challenge the jury’s verdict in favor
of Wal-Mart on Douglas’s loss of consortium claim, the jury’s
finding that Helen was 49% contributorily negligent, and the
sufficiency of the damages awarded. We will address each of
these claims in turn.
First, plaintiffs seem to take the position that, having found
for Helen on her negligence claim, the jury was required to
find for Douglas on his loss of consortium claim, and that
failure to do so requires a new trial. This is not the law. The
jury was required to determine whether Douglas suffered
any loss as a result of Helen’s injuries; they found that he
did not. A new trial may be granted only if the jury’s verdict
is against the manifest weight of the evidence. ABM Mark-
ing, Inc. v. Zanasi Fratelli, S.R.L., 353 F.3d 541, 545 (7th
Cir. 2003). Douglas was impeached several times at trial
regarding who performed the housework before Helen’s
injury and the extent of Helen’s pain issues prior to her fall.
The jury was free to find Douglas’ testimony lacking in
credibility, and it apparently did.
6 No. 04-2231
Second, plaintiffs assert that the evidence was insufficient
to support the jury’s finding that Helen was 49% contribu-
torily negligent. However, the jury’s determination on this
issue is not reviewable on appeal since the Van Bumbles
failed to move for judgment as a matter of law pursuant to
Fed. R. Civ. P. 50(a) or make any other motions challenging
the sufficiency of the evidence. Hudak v. Jepsen of Ill., 982
F.2d 249, 250 (7th Cir. 1992).
Finally, the plaintiffs challenge the amount of damages
awarded by the jury as inadequate. “A motion for a new trial
on the ground of inadequate or excessive damages is ad-
dressed to the discretion of the trial court.” Galard v.
Johnson, 504 F.2d 1198, 1199 (7th Cir. 1974). There was no
abuse of discretion here; the damages awarded by the jury in
this case are rationally connected to the evidence presented
at trial. Helen was ultimately awarded $13,024. Since she
was found to be 49% at fault, the jury must have found
Helen’s total damages to be $25,537; that figure was then
reduced according to the Indiana Comparative Fault Act.
The total damage figure of $25,537 could have been deter-
mined any number of ways. The jury may have awarded
Helen all of her medical expenses plus an amount for pain
and suffering, they may have reduced her medical expenses
but awarded money for lost wages, and so forth. Regarding
Helen’s medical expenses, Wal-Mart stipulated only to the
authenticity and admissibility of the total amount of medical
expenses incurred by Helen, not that these expenses were
reasonable or incurred as a result of Helen’s fall. The jury
was free to find some of these medical expenses either
unreasonable or unnecessary and calculate damages accord-
ingly.
III. Conclusion
As the district court succinctly noted, the mere fact that
the jury awarded less to the plaintiffs than they would have
No. 04-2231 7
liked does not entitle them to a new trial or additur. For the
reasons stated herein, we AFFIRM.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-6-05