Opinion
C.A. No. 98C-09-056-JRS
Date Submitted: March 13, 2001
Date Decided: April 19, 2001
On Plaintiffs' Motion for New Trial: DENIED.
Kenneth M. Roseman, Esquire, Richard D. Abrams, Esquire.
Gentlemen:
As you know, the above-captioned matter was tried to a jury over a period of three days. On February 22, 2001, the jury returned a verdict in favor of the defendant. Plaintiffs have now moved for a new trial. To follow is the Court's decision on this motion.
I. Facts
A. Plaintiffs' Theory of Liability
The case involved a slip and fall injury sustained by plaintiff, Brenda Cofrancesco, while a customer at the defendant, Shop-Rite Supennarkets, Inc.'s ("Shop Rite") Stanton, Delaware store. Ms. Cofrancesco had just entered an aisle lined on either side by refrigeration cases when she slipped on a puddle of water. When she regained her faculties, she noticed a "warning wet floor" sign leaning against the refrigeration case, and another identical sign lying on the floor. These signs were designed to stand erect on the floor in a pedestal-like fashion. Both parties agree that the warning signs were not placed in proximity to the puddle of water in a manner which would allow customers to notice the signs or appreciate the hazardous condition. Plaintiffs' theory of liability going into the trial was that the signs had been improperly placed at the scene of the accident by a Shop-Rite employee. According to the plaintiffs, the improper placement of the signs demonstrated: (a) actual notice of the hazardous condition; and (b) a breach of the store's duty both to warn of and correct the hazardous condition.
B. Discovery
During discovery, plaintiffs propounded certain interrogatories intended to yield the identity of Shop-Rite employees with factual information relating to the accident. Plaintiffs also attempted with their interrogatories to elicit a preview of Shop Rite's liability defense. The interrogatories contained the following relevant queries:
14. Do you claim the accident was caused by the negligence of a third-party or parties.
15. If so, describe in detail: (a) the names and addresses of said party or parties; (b) the factual basis upon which you rely pointing to negligence.
16. Please relate your factual explanation of the accident.
23. With reference to any expert you expect to call to testify as a witness at the trial, state the name and address of such expert and, as to each expert named, state: (a) the subject matter on which the expert is expected to testify; (b) the substance of the facts and opinions to which the expert is expected to testify; (c) a summary of the grounds for each such opinion.
In addition, the Court's Form 30 Interrogatories required Shop Rite to:
2. Give the name and present or last-known residential and employment address and telephone number of each person who has knowledge of the facts relating to the litigation.
In response to the interrogatories, Shop-Rite denied that the accident was caused by the negligence of a third-party. Shop-Rite also declined to describe its version of how the accident occurred stating, instead, that Ms. Cofrancesco was in the best position to recount the events of the accident. Shop-Rite's Assistant Store Manager, Edward Sayers, was the only employee identified as having knowledge of the facts relating to the litigation. No liability experts were identified in response to plaintiffs' expert interrogatory. Significantly, the Shop-Rite employee(s) who first detected the puddle of water and/or placed the warning signs at the scene were not identified.
Mr. Sayers was deposed during discovery. He was not asked about Shop-Rite's procedures with respect to the proper placement of warning signs (at least not in detail), nor was he asked to provide his explanation of how the signs could have been placed inappropriately at the time of Ms. Confrancesco's fall. Needless to say, he did not volunteer this information. According to plaintiffs' counsel, based on the discovery responses he had received from Shop-Rite, he did not anticipate a meaningful liability defense at trial.
The Pretrial Stipulation did identify negligence, causation and damages as disputes for trial.
C. The Trial
During his opening statement, plaintiffs' counsel advised the jury that the liability case was simple and straight forward (to paraphrase): Ms. Cofrancesco was a customer in the defendant's store. She slipped on a puddle of water that was on the floor in one of the aisles. The puddle should not have been there. Shop-Rite was aware of the puddle as evidenced by its warning signs which were placed in the area of the puddle. The warning signs were not placed on the floor in a manner which would warn customers of the dangerous condition. This was negligence. Consequently, Ms. Cofranceso slipped in the puddle of water, fell and, as a proximate result of the fall, was injured. Simple.
Plaintiffs' counsel did not preview any facts which would suggest that a Shop-Rite employee had improperly placed the signs at the accident scene. His theory of liability, apparently, envisioned that the jury could infer that a Shop-Rite employee was responsible for the improper placement of the signs in the absence of evidence to the contrary. Significantly, plaintiffs did not plead, nor did they argue, Res Ipsa Loquitor. See D.R.E. 304. Absent this, or some other court sanctioned presumption of culpability, it is not clear to the Court whether plaintiffs' theory of liability actually equated to a prima facie case of negligence. Indeed, Shop-Rite moved for a directed verdict at the close of plaintiffs' case. The Court reserved decision on the motion. In light of the jury's verdict, and the Court's decision on this motion for new trial, the issue is moot and will not be addressed by the Court.
Counsel for Shop-Rite advised the jury in his opening remarks that the case was not as simple as plaintiffs' counsel had suggested. He claimed that a Shop-Rite witness (Mr. Sayers) would offer a credible explanation as to why the warning signs were found propped up against the refrigeration case and lying on the floor. He further stated that Mr. Sayers' explanation would convince the jury that Shop-Rite was not at fault.
Plaintiffs' counsel did not offer a contemporaneous objection to his opponent's opening statement. Instead, at the conclusion of defense counsel's opening statement, plaintiffs' counsel requested a side-bar conference during which he advised the Court of his concern that any liability defense offered on behalf of Shop-Rite would constitute an improper "sandbagging." In plaintiffs' counsel's retrospective view, Shop-Rite's discovery responses were clearly deficient, particularly with respect to the identity of persons with knowledge of the accident and the identity of any liability defense which would be offered at trial.
It was proffered that Mr. Sayers would testify that Shop-Rite employees were trained how to respond to spills, including how properly to place warning signs at the scene of a spill. Accordingly, it was his opinion that a Shop-Rite employee could/would not have placed the warning signs in the manner described by plaintiffs' counsel. Moreover, Mr. Sayers would describe how he had seen customers knock over properly-placed warning signs and then fail to return them to their proper position. He would opine that this scenario probably occurred in this case.
Plaintiffs' counsel objected to this proposed testimony on two grounds: first, the opinion testimony was not based upon an adequate foundation since Mr. Sayers would acknowledge that he did not know for certain what happened in this case; second, the failure properly to respond to discovery precluded adequate preparation for this defense. The Court ordered that Mr. Sayers could describe the manner in which Shop-Rite trained its employees to respond to spills and could describe his past observations of customers knocking over properly placed warning signs. Mr. Sayers was not permitted, however, to opine that the signs were properly placed in this case or that a customer had displaced the signs.
When Mr. Sayers testified, he acknowledged that the warning signs were not properly placed when he arrived at the scene. He was unable to identify the Shop-Rite employee(s) who first detected the water on the floor and/or placed the warning signs in the aisle around the spill. And he conceded that he did not know whether the signs had been properly placed in the aisle by a Shop-Rite employee.
During the "cross examination" of Mr. Sayers by Shop-Rite's counsel, he was asked to describe Shop-Rite's policies with respect to the placement of warning signs after a spill. In response, Mr. Sayers arguably violated the limitations placed upon his testimony by the Court when he testified:
Q: And if I understand your testimony, the only time that you have ever seen signs set up that way is where after the signs were set up, someone had come along and knocked them over?
A: Correct.
Q: You don't know if that is what happened in this case, though?
A: No, I do not, I have seen it in the past, but I don't know what's happened in here.
Q: But no one from Shop-Rite would have set them up like that?
A: Absolutely not. (Emphasis supplied)
Once again, plaintiffs' counsel did not offer a contemporaneous objection to Mr. Sayers' testimony. Instead, after Mr. Sayers' testimony was complete, plaintiff moved for a mistrial. The Court denied the motion. The Court did offer to provide a curative instruction to the jury to the effect that they are not to speculate as to what did or did not occur, but they could draw reasonable inferences from the evidence. Plaintiffs' counsel declined the Court's invitation. Instead, plaintiffs' counsel prepared a jury instruction which, according to counsel, "deal[t] with the issue to [his] satisfaction." The proffered jury instruction amounted to a so-called "missing witness" instruction. The instruction read:
Where relevant evidence or witnesses are within the control of the party in whose interest it would naturally be to produce them, and that party fails to do so, without satisfactory explanation, the jury may draw an inference that such evidence or witnesses would have been unfavorable to the party who failed to produce such evidence or witnesses.
Plaintiffs' counsel argued that the instruction was appropriate because defendant had "sandbagged" the plaintiffs with Mr. Sayers' testimony. Based on the discovery deficiencies, and the violation (albeit minor) of the Court's order limiting Mr. Sayers' testimony, the Court agreed to give the instruction. The Court was particularly concerned that Shop-Rite had not identified the porter who responded to the spill and placed the warning signs at the scene of the accident. Failure to identify this individual precluded plaintiffs' counsel from deposing this individual and, arguably, left plaintiffs' counsel to conclude that Shop-Rite would not offer a substantive liability defense. The missing witness instruction cured the problem to the Court's satisfaction and, at least at the time, to plaintiffs satisfaction as well.
See Del. Super. Ct. Civ. R. 26(e)(1); ("a party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matter . . .")
The Court is compelled to observe that plaintiffs' counsel did not aggressively pursue this information. He did not file a motion to compel nor did he raise any concerns at the Pretrial Conference even in the face of defendant's statement in the Pretrial Stipulation that fault for the accident would be contested at trial. Nevertheless, the discovery responses were not complete and plaintiffs were, in the Court's view, entitled to remedial relief.
During his closing arguments to the jury, plaintiffs' counsel argued extensively from the missing witness instruction which the Court had already read to the jury. Specifically, counsel argued that the jury should infer that Shop-Rite's failure to call its porter indicated that the porter would not provide testimony favorable to Shop-Rite. In the context of this case, plaintiffs' counsel asked the jury to infer that the porter would testify that he did not place the warning signs in an appropriate position at the scene of the accident. Consequently, according to plaintiffs' counsel, Shop-Rite had not discharged its duty of care to the plaintiff. Notwithstanding counsel's argument, the jury returned a verdict in favor of the defendant.
The Court read its jury instructions in advance of closing arguments.
D. The Motion for New Trial
Plaintiffs have moved for a new trial. They argue that the Court committed error when it allowed Mr. Sayers to testify regarding the training of store employees with respect to the placement of warning signs and his prior observation of customers knocking over these signs after they had been properly placed by store employees. The bases for the claims of error are: (1) the testimony was not disclosed in response to properly propounded interrogatories; and (2) the testimony amounted to improper expert testimony. For the reasons that follow, the Court will deny the motion.
II. Discussion
The Court's standard of review on a motion for new trial is well-settled. The jury's verdict is presumed to be correct. Barring exceptional circumstances, the Court should not set aside a jury's verdict unless it contradicts the great weight of the evidence, or the Court is convinced that the jury disregarded the applicable rules of law. Delaware courts will also order a new trial when the jury's verdict is tainted by legal error committed by the trial court during the trial.
Mills v. Telenczak, Del. Super., 345 A.2d 424, 426 (1975).
Storey v. Camper, Del. Super., 401 A.2d 458, 465 (1979).
Storey v. Castner, Del. Supr., 314 A.2d 187, 193 (1973).
e.g. DuPhilly v. Delaware Electric Cooperative, Inc., Del. Supr., 662 A.2d 821, 833-34 (1995).
A. The Relevance of Mr. Sayers' Testimony
Turning first to plaintiffs' contention that the Court erred when it allowed Mr. Sayers to testify regarding Shop-Rite's policies and training with respect to the placement of warning signs, the Court must reject this contention outright. As an initial matter, the Court notes that plaintiffs' counsel attempted to use the store's policy with respect to proper placement of warning signs as a standard of care by which the improper placement of the warning signs in this case should be measured. Specifically, plaintiffs' counsel asked several questions of Mr. Sayers regarding Shop-Rite's response to spills which occur within its stores, including the training of Shop-Rite employees to respond to such spills. He then secured an admission from Mr. Sayers that the placement of the signs as he observed them at the scene of Ms. Cofrancesco's accident violated Shop-Rite's own policies. The questioning of Mr. Sayers with respect to store policies on cross examination simply took him further through a door which had already been opened by plaintiffs' counsel.
Moreover, Mr. Sayers' recitation of store policy was clearly relevant to the discharge of its duty of care to Ms. Cofrancesco. The jury was entitled to know that Shop-Rite maintains policies with respect to addressing hazardous conditions within its store, and that it trains its employees accordingly. The store's policies and training procedures are rendered no less relevant simply because Mr. Sayers could not state whether or not Shop-Rite employees followed the procedures or acted in accordance with their training in this case.
Similarly, the Court rejects plaintiffs' argument that Mr. Sayers' testimony regarding his past observations of customers knocking over properly placed signs was irrelevant. Clearly, Mr. Sayers' testimony in this regard tended to make plaintiffs' assertion that Shop-Rite improperly placed the warning signs at the scene of the accident "less probable." While the testimony clearly was prejudicial to the plaintiffs, the Court cannot conclude that such prejudice "substantially outweighed" the probative value of this evidence. In this regard, the Court is particularly comforted by the fact that it did not allow Mr. Sayers to testify to that which he admittedly did not know: he was prohibited from testifying that a Shop-Rite employee in fact properly placed the signs at the accident scene and was prohibited from testifying that a customer in fact knocked the signs over. Accordingly, the Court is satisfied that Mr. Sayers' testimony was relevant.
See D.R.E. 401 (defining "relevant evidence").
With respect to plaintiffs argument that Mr. Sayers overstepped the boundaries set by the Court for his testimony when he stated that a Shop-Rite employee would not have set the signs up in the manner in which they were found at the scene of Ms. Confrancesco's accident, the missing witness instruction was proposed by plaintiffs' counsel and accepted by the Court in order to address this problem as well as the problem created by the unfair surprise. Thus, for the same reasons the Court concludes that the curative instruction adequately responded to the "discovery problem", the Court likewise concludes that it cured any problems created by Mr. Sayers' "slip of the tongue."
B. Mr. Sayers Did Not Offer Expert Testimony
Plaintiffs have also argued (for the first time) in their motion that the Court allowed Mr. Sayers to offer expert testimony even though he was not designated by the defendant as an expert in advance of trial. The Court disagrees. "Testimony by a person who has expertise in a certain area is not ipso facto expert testimony." "A distinction is drawn between testimony based upon one's personal knowledge of the facts of the case, and testimony by a witness, who has been properly qualified as an expert, in the form of "an opinion or otherwise' concerning a subject area relevant to the case." "In short, a witness may testify as to his or her own experience, knowledge or observation about the facts of the case without giving "expert testimony' as defined in the rules of evidence." This is precisely what Mr. Sayers — the fact witness — did in this case.
McLain v. General Motors Corp., Del. Supr., 569 A.2d 579, 584 (1990).
Duphily v. Delaware Elec. Co-op, Inc., Del. Supr., 662 A.2d 821, 835 (1995) (citing McClain, 569 A.2d at 584 and comparing D.R.E. 602 and D.R.E. 702).
Id. (emphasis in original).
C. The Deficient Discovery
The more troublesome aspect of this case arises from the fallout of incomplete discovery responses and the appropriate redress when a party falls victim to a discovery violation during trial. The Court was satisfied during trial that Shop-Rite had not provided complete responses to plaintiffs' discovery. The Court was then confronted with an obligation to "balance its duty to admit all relevant and material evidence with its duty to enforce standards of fairness and the Rules of Court." The discovery violation — boiled to its essence — was a failure to identify the Shop-Rite employee who placed the warning signs at the scene of the accident. To address this problem, plaintiffs prepared a curative instruction to be read to the jury which was tantamount to a missing witness instruction. Defendant objected to the proposed instruction.
The Court takes this opportunity to highlight an ever-present and unfortunate fact of life in Superior Court civil practice. All too often, particularly in personal injury litigation, parties do not take seriously enough their obligation to respond to written discovery. There are probably several explanations for this problem. Written discovery in personal injury actions often derives from "boilerplate" forms not specifically tailored to the facts of a given case. The boilerplate discovery casts a wide net for information. Opposing parties respond to broad discovery with broad answers or with a commitment to provide the information at a later date. The supplemental responses envisioned by Rule 26(e) are often forgotten. It also appears over the years that depositions have taken the place of written discovery. Lawyers generally (and probably correctly) perceive that they will secure more responsive information by propounding questions directly to a party at deposition when the filter of an attorneys' review is removed from the process. In any event, whatever the explanation, it is not at all unusual for a party to appear on the first day of trial with incomplete answers to his or her written discovery. Fortunately, in most cases, the problem does not surface during trial. Unfortunately, in this case, the inadequate discovery responses took center stage during the presentation of Mr. Sayers' testimony. Nothing in the Court's decision today is intended to suggest, even implicitly, that the Court will countenance half-hearted efforts to respond to written discovery. On the contrary, the events of this case, and the Court's response during trial to the inadequate discovery responses, hopefully will underscore the importance of complete written discovery responses.
Concord Towers, Inc. v. Long, Del. Supr., 348 A.2d 325, 326 (1975) (concluding that the trial court committed reversible error when it admitted evidence at trial which had not been disclosed in response to properly propounded discovery).
The Court performed the balancing test required by Concord Towers and determined that the case could be submitted to the jury with Mr. Sayers' arguably objectionable testimony but that the jury would be instructed that they may infer from Shop-Rite's failure to call the employee who actually placed the signs at the scene of the accident that he/she would not have testified favorably to Shop-Rite. The Court agreed to give this jury instruction upon concluding that the porter's testimony was material, that he was under the control of Shop-Rite, and that it would have been to Shop-Rite's advantage to call him as a witness if his testimony was favorable to Shop-Rite. The Court's instruction bears repeating:
See 29 Am. Jur.2d, Evidence, § 180, at 224-25; 31a C.J.S., Evidence, § 156(1) at 397.
Wheatley v. State, Del. Super., 465 A.2d 1110, 1111 (1983).
Where relevant evidence or witnesses are within the control of the party in whose interest it would naturally be to produce them, and that party fails to do so, without satisfactory explanation, the jury may draw an inference that such evidence or witnesses would have been unfavorable to the party who failed to produce such evidence or witnesses.
The Court must digress for a moment to discuss the propriety of a missing witness instruction. Although the matter has not been firmly decided in Delaware, some Delaware courts have suggested that a missing witness or missing evidence instruction violates Article IV § 19 of the Delaware Constitution because "the instruction amounts to an impermissible comment on the evidence." This issue was not raised by the defendant and the Court will not address the question today except to note that the missing witness instruction given to the jury in this case was generic in the sense that it did not identify a witness or party to which it applied. The instruction indicated that the evidentiary inference of which it spoke was permissive; the jury could infer that the missing witness would testify unfavorably to the party who naturally would have called the witness or the jury could draw no inference whatsoever. Moreover, later in the jury instructions, the Court emphasized that "it intended no favoritism" by any instruction it read to the jury.
Id. (citing Boyer v. State, Del. Supr., 436 A.2d 1118, 1124 (1981)).
Indeed, the jury's verdict for the defendant reveals that the jury rejected the notion that Shop-Rite's failure to call the porter indicated that the porter would provide unfavorable testimony. This verdict was consistent with the permissive nature of the instruction. Compare Wheatley, 465 A.2d at 1111 (proposed missing witness instruction directed the jury to presume unfavorable testimony from the missing witness).
See Haas v. United Technologies, Inc., Del. Supr., 450 A.2d 1173, 1179 (1982) (jury instructions must be considered as a whole with no one statement to be viewed out of context in judging the propriety of the instruction).
The Court is also mindful of the general reluctance of most courts to give a missing witness instruction, particularly in civil cases. At the heart of this reluctance is the recognition that "a litigant may use modern discovery procedures to ascertain the identity and proposed testimony of witnesses identified with her opponent." The Court endorses this reasoning and agrees that the use of missing witness instructions must be carefully circumscribed. In this case, however, plaintiffs employed appropriate discovery to unearth the information they sought, including the identity of Shop-Rite witnesses, and the defendant did not adequately respond. Thus, the use of the missing witness instruction took the form of a remedial sanction akin to a sanction authorized by the Court's rules of discovery. Exercising its discretion, and with plaintiffs' blessing, the Court determined that the instruction cured any prejudice caused by the discovery deficiency or Mr. Sayers' objectionable testimony.
E.g. Jackson v. Rotach, Del. Super., C.A. No. 99C-01-001, Stokes, J. (June 8, 2000), Mem. Op. at 20.
Id. (citing Herbert v. Wal-Mart Stores, Inc., 5th Cir., 911 F.2d 1044, 1048 (1990)).
Del. Super. Ct. Civ. R. 37(b).
See Smith v. State, Del. Supr., 560 A.2d 1004, 1007 (1989)("Trial judges possess wide discretion in determining the admissibility and the maimer of presentation of evidence before the court and jury").
III. Conclusion
The Court wrestled with this motion long and hard. The impact of Mr. Sayers' testimony was difficult to determine in the context of plaintiffs' burden of proof in this case. Plaintiffs intended to present their case without direct evidence of the allegedly negligent act (improper placement of the warning signs). The only person who could address the issue directly was not presented to the jury by either party. Because the Court agreed that plaintiffs were hindered in their efforts to identify this key witness, the Court addressed the prejudice with a curative instruction to the jury which, perhaps, gave the plaintiffs more than they would have achieved had they actually called the "missing witness." Nevertheless, the jury rejected plaintiffs' theory of liability. This verdict, in the Court's view, was not contrary to the great weight of the evidence. Accordingly, plaintiffs' motion for new trial or for judgment notwithstanding the verdict is DENIED.
IT IS SO ORDERED.