Kmart Corp. v. Lee

789 So. 2d 103, 2001 Miss. App. LEXIS 182, 2001 WL 482319
CourtCourt of Appeals of Mississippi
DecidedMay 8, 2001
DocketNo. 1999-CA-02038-COA
StatusPublished
Cited by4 cases

This text of 789 So. 2d 103 (Kmart Corp. v. Lee) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kmart Corp. v. Lee, 789 So. 2d 103, 2001 Miss. App. LEXIS 182, 2001 WL 482319 (Mich. Ct. App. 2001).

Opinion

SOUTHWICK, P.J.,

for the Court:

¶ 1. Yvonne Lee was awarded damages in the amount of $500,000 after a jury trial on her complaint for personal injuries suffered in a fall in a Kmart store in Vicksburg. Kmart appeals, alleging that a video tape of surgical procedures should not have been played for the jury, and that Kmart’s motions for judgment notwithstanding the verdict, a new trial, or at least a remittitur should have been granted. We find no error and affirm.

FACTS

¶ 2. On the day of this incident, a clerk at Kmart was told by a customer that antifreeze had been spilled on the floor in an aisle. The clerk, Grover Sanders, closed his register to investigate. Once he saw the spill, he told two female employees to stay near the spill and warn customers while he went to get cleaning supplies. There was evidence that while the two warned customers, another female employee came up to the two women to show them some flowers that she had received.

¶ 3. At the same time, Yvonne Lee was at the Kmart. She testified that she saw the three women talking, but she did not notice the spill. The clerk, Sanders, and one of the women testified that they saw Lee and yelled to warn her. Lee testified that she did not hear the warning, slipped in the antifreeze and fell. While attempting to get up she fell again on her right shoulder. Lee went to a hospital emergency room. Lee was given some pain medicine and told to return if needed.

¶ 4. Lee returned to the emergency room a few days later after experiencing some pain in her back and being unable to raise her arm. She was referred to another doctor, Dr. Porter. Dr. Porter found that Lee suffered from a herniated disc and prescribed physical therapy. When Lee [106]*106did not achieve any relief, Dr. Porter referred her to a spine specialist, who in turn referred her to Dr. Sidney Berry. Dr. Berry prescribed therapy and cortisone shots. These too did not provide relief. She was next referred to a pain specialist in Memphis, Dr. Steven Gipson. Dr. Gip-son performed a “shunt” procedure that did not alleviate any pain. A diskectomy was then performed after which she suffered a staph infection that required additional surgery.

¶ 5. Still suffering from pain, Dr. Gipson implanted a spinal stimulator in Lee. The device is connected to the damaged nerve to provide a sensation to mask the pain. Although the stimulator did provide some relief to Lee, as she increased her activities her pain increased. At this time, a morphine pump was implanted in order to provide continuous pain medication to the nerve site. The pump along with the stimulator has improved Lee’s condition, but she has not returned fully to work since the date of the accident. As a result of the implantation of the morphine pump, every ninety days, a nurse must remove any remaining medication and refill the pump through an injection. In addition, the battery and pump must be replaced via surgery every four to five years.

¶ 6. Lee filed a complaint in the Warren County Circuit Court against Kmart alleging negligence. A jury found Kmart negligent and awarded Lee $500,000 in damages. Kmart appeals.

DISCUSSION

1. Videotapes of surgical procedures shoum to jury

¶ 7. During the trial, three videotapes were shown to the jury concerning the spinal stimulator and the morphine pump. Kmart alleges that these graphic videotapes of surgical procedures were shown only to inflame the jury.

¶ 8. The first and second videotapes were shown during Lee’s testimony. A small excerpt only was shown from the first video that depicted the spinal stimulator device and its location within the body. During the pretrial motion, the trial judge held that the section of the tape could be shown that was “basically a diagram of where it’s set up on the body and how it goes to a particular area of the body”; the sound could not be played. The excerpt shown from the second video lasted only a few seconds and showed the bulge of the morphine pump under the skin of another patient.

¶ 9. The third videotape was shown during the testimony of Betty Boatner, a nurse who performs the monthly maintenance on the morphine pump and is a representative of the company that manufactures the pump. With a close-up perspective on a patient, that video reveals the process of surgically implanting the pump.

¶ 10. Our only concern is what was actually displayed to the jury. A risk with some of the technology now frequently in use in courtrooms, from something as simple as these videotapes to much more elaborate presentations, is that an adequate record may not easily be made of what was displayed to the jury. Here, the precise excerpts shown to the jury from the longer videotapes have not been separately preserved or identified. A party wishing to object to the admissibility of evidence must make clear that the evidence to which the objection was made can be identified in the record. Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 135 (Miss.1998).

¶ 11. The admissibility of videotapes is within the sound discretion of the trial judge. Jesco, Inc. v. Shannon, 451 [107]*107So.2d 694, 702 (Miss.1984). The exercise of that discretion must be based on normal evidentiary considerations. As with any evidence, a trial judge should determine whether,its probative value outweighs the prejudicial effect upon a jury. M.R.E. 403. Videotapes likely require previewing the evidence outside the presence of the jury. In addition, videotapes or photographs should be excluded when the only purpose is to inflame the jury. Butler v. Chrestman, 264 So.2d 812, 816 (Miss.1972).

¶ 12. The purpose of these videos, whether such a purpose is relevant, and whether the videos had probative value to satisfy that purpose without undue prejudice, all must be decided initially by the trial court and then, based on an adequate record, by an appellate court if the matter is raised.

¶ 13. The trial judge previewed the tapes. At that time Kmart objected to the videotapes on the grounds that they were inadmissible hearsay and that they were the equivalent of expert testimony. The argument that they were so graphic as to inflame the jury was not made. Thus we will not consider it on appeal. Lemon v. Miss. Transp. Comm’n, 735 So.2d 1013, 1024 (Miss.1999).

¶ 14. Only one of the videotapes is the basis of an appellate objection. It is the one displaying the surgical procedure for implanting the morphine pump. Kmart argues that the doctors’ video deposition testimony played for the jury—separate videotapes for which no appellate objection is made—adequately explained the implantation procedures. In addition, the nurse who was a representative of the morphine pump manufacturer testified in a general way about the implantation and maintenance procedure, but she did not detail the actual surgery.

¶ 15. The central question is whether detailed discussion of the implantation procedure is relevant. If it was not, then the videotape depositions describing it and the nurse’s testimony were all irrelevant on what would be a non-issue. No objection is made on appeal that the entirety of the discussion of the surgery that was needed to implant the morphine pump was inadmissible. Absent that issue, then how thoroughly to explain the procedure and with what aids beyond testimony are matters largely for the discretion of the trial judge.

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Bluebook (online)
789 So. 2d 103, 2001 Miss. App. LEXIS 182, 2001 WL 482319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kmart-corp-v-lee-missctapp-2001.