Thompson v. Wal-Mart Stores, Inc.

60 So. 3d 440, 2011 Fla. App. LEXIS 3472, 2011 WL 904552
CourtDistrict Court of Appeal of Florida
DecidedMarch 16, 2011
DocketNo. 3D10-146
StatusPublished
Cited by3 cases

This text of 60 So. 3d 440 (Thompson v. Wal-Mart Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Wal-Mart Stores, Inc., 60 So. 3d 440, 2011 Fla. App. LEXIS 3472, 2011 WL 904552 (Fla. Ct. App. 2011).

Opinion

RAMIREZ, C.J.

Sabrina Thompson appeals the denial of her motion for a new trial based on: the unreliability of an expert witness’ testimony and use of an undisclosed PowerPoint slide presentation; and the improper admission of Thompson’s prior convictions. We affirm the admission of Thompson’s prior convictions, but reverse and remand for a new trial, because the trial court abused its discretion when it allowed the introduction into evidence of the testimony of the expert witness who changed his testimony and presented PowerPoint slides at trial without prior notice to Thompson.

Thompson slipped and fell in a “puddle of yellowish-green liquid in a housewares aisle at Wal-Mart in Daytona Beach.” There were no warning signs or cones in the area, and Thompson did not see the liquid before she fell. An eye witness saw the liquid and witnessed her fall. A jury found Wal-Mart 100% at fault for the fall, but awarded only minimal damages. Thompson had previously fractured her wrist in 1994 for which she received treatment. Due to her previous injury, Thompson’s ulna was slightly longer than her radius.

About ten days after the fall, she saw Dr. Stephen Wender. Thompson told Dr. Wender that she had “severe pain in her wrist with numbness and tingling in her thumb, index finger and long finger.” Dr. Wender diagnosed Thompson with a tear of the triangular fibrocartilage complex (hereinafter “TFCC”) and carpal tunnel syndrome. After conservative treatment, Dr. Wender referred Thompson to Dr. Jay Dennis, Chief of Hand Surgery at the University of Miami School of Medicine.

Dr. Dennis reviewed Thompson’s medical records and conducted an examination. He concluded that she had suffered an injury that was both recent and acute. He diagnosed Thompson with a TFCC tear and carpal tunnel syndrome. Dr. Dennis also treated her conservatively for two months, and he did not find any changes in her condition.

Five months after the fall, in January 2007, Dr. Dennis performed arthroscopic surgery and a carpal tunnel release. Dr. Dennis believed the surgery showed an unreconstructable tear of the TFCC, and described it as a “trampoline with a hole in the middle” with no possibility of repair. At the same time, Dr. Dennis performed an ulnar shortening osteotomy, in which he broke the ulnar bone and shortened it to bring it down to a level even with the radius. According to Dr. Dennis, the procedure “is one of the salvage reconstruction options for an irreparable, non-recon-struetable, non-fixable TFCC.” The carpal tunnel release performed at that time also involved breaking the bone and inserting a plate which later had to be removed, leaving holes in the bone, which are points of weakness in the wrist. Dr; Dennis had to [442]*442operate a third time, after a screw hole left from the plate caused a new displaced fracture in Thompson’s wrist. Dr. Dennis estimated that Thompson sustained a seven percent permanent impairment. He opined that the fall at Wal-Mart had caused a significant portion of her injury, and exacerbated her wrist condition and brought on all of her symptoms. He believed that as a result of the fall, Thompson required the three surgeries she received. He also stated that the fall also probably aggravated or exacerbated her carpal tunnel syndrome.

The pretrial order required the parties to provide opposing counsel, no later than sixty days before trial, “the names and addresses of all expert witnesses to be called at trial and all information regarding expert testimony (including treating physicians, if any, that is required by rule 1.280(4)(A)).” Wal-Mart filed its first witness and exhibit list in February of 2009, and at that time disclosed that it would call Dr. Felix Freshwater as an expert witness, and provided his address at the Miami Institute of Hand and Microsurgery. In its Disclosure of Experts, Wal-Mart also listed Dr. Freshwater as an expert in hand surgery. Wal-Mart filed a second witness and exhibit list in April of 2009 and gave no additional information.

Thompson’s counsel took Dr. Freshwater’s deposition in March of 2009. Dr. Freshwater never examined Thompson. He based his testimony on a review of medical records and on Dr. Dennis’ deposition. He testified that he had not seen her x-rays, but had reviewed the x-ray reports. He also testified that he could not determine within a reasonable degree whether the tear occurred prior to, or after her fall, or whether the injury was degenerative or traumatic in nature, only that the injury was not as a result of the fall at Wal-Mart. Dr. Freshwater further testified that the MRI taken of plaintiffs .wrist was practically useless, and that he “couldn’t see anything on the MRI about the TFCC tear that the radiologist alluded to.” He also testified that he was only able to measure the amount of the ulnar variance on the MRI, but that it was not a very good study. Dr. Freshwater believed that the procedures performed by Dr. Dennis were unnecessary, except the arthroscopy. After this statement, he terminated the deposition.

On May 8, 2009, Thompson moved to strike Dr. Freshwater on the grounds that his opinion was speculative and based on insufficient data because he was unable to read the MRI, had not personally examined Thompson, and had not reviewed the x-ray films. At the hearing on the motion, defense counsel stated that Dr. Freshwater would testify as to the surgeries being “overkill” and unnecessary, and that the tear could, have occurred before or after the fall but that he did not believe (“within a reasonable degree of medical probability or certainty”) that the fall caused the injury. The trial court denied Thompson’s motion to exclude or limit Dr. Freshwater’s testimony.

The night before the last day of trial, Thompson received a forty-five slide PowerPoint presentation titled “Understanding Wrist Fractures” that Dr. Freshwater was going to use to testify. Thompson objected to Dr. Freshwaters’ testimony, arguing that there would be no time for her own experts to evaluate them. The court overruled the objection.

Dr. Freshwater testified that using the MRI, he was able to tell that the end of Thompson’s radius had collapsed, which gave her a negative volar angle or tilt of twenty-one degrees; a normal volar angle being at eleven degrees, and he would be able to tell that there was a collapse of ten degrees the other way. Dr. Freshwater [443]*443testified that the load on Thompson’s wrist increased to forty-three percent. He also testified that the MRI showed no “white area,” which indicated that there was a recent injury to the wrist. He stated that the cause of the wrist problem was degeneration, and this resulted from her wrist fracture in 1994. Dr. Freshwater stated that he based this opinion partly on the emergency medical records because Thompson did not complain in the emergency room of having any swelling, bruising, oozing or pain in her wrist, as he would expect from a TFCC injury. Also, the records from the North Dade Center where Thompson had a follow-up medical visit days after the fall did not indicate that she had any complaints or pain.

Dr. Freshwater conceded that he changed his opinion as to whether all of the surgeries Dr. Dennis performed were unnecessary, including the arthroscopy which in his deposition he stated was appropriate. Thompson cross examined Dr. Freshwater on his changed opinion but did not present any rebuttal testimony.

The jury returned a verdict for Thompson, awarding damages in the amount of $7,041.44 for the ambulance, hospital emergency room and MRI. There was no award for treatment by Dr. Wender or Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
60 So. 3d 440, 2011 Fla. App. LEXIS 3472, 2011 WL 904552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-wal-mart-stores-inc-fladistctapp-2011.