New testimony ordered by appeals court makes little difference in outcome

By Katheryn Hayes Tucker Daily Report

For the second time in just over a year, a jury has awarded $2 million to a man who slipped on a banana in a Kroger store, hurt his back and claims permanent pain despite surgery. The first trial before Gwinnett County State Court Judge Joseph Iannazzone resulted in a $2.3 million verdict in January 2012. The second verdict, reached March 22, was an even $2 million. The retrial, again before Iannazzone, resulted from December’s decision by the Georgia Court of Appeals directing a do-over. At issue: the judge’s not allowing the defense to include the testimony of the manager of the meat department in the Douglasville Kroger store where the fall took place. The second trial lasted a week—two days longer than the first. The meat manager’s testimony took up about 35 minutes: 15 minutes of direct and 20 minutes of cross examination, according to Bruce Berger, second chair for the plaintiff. The testimony didn’t make a difference to the jury, Berger said. “I was bent on keeping him out” of the first trial, said lead plaintiff’s counsel Lloyd Bell of the meat manager, whose testimony Bell thought was irrelevant. “I wish I’d allowed him to testify the first time.” The dispute is still not over, said Kroger defense counsel Earl “Billy” W. Gunn of Weinberg Wheeler Hudgins Gunn & Dial. Gunn said he is recommending that his client appeal the jury’s award of $500,000, included in the total verdict, for legal fees to Bell and Berger. Gunn said the judge should not have allowed the jury to decide the question behind the attorney fee award—whether Kroger was stubbornly litigious or acted in bad faith by destroying video evidence of the fall. Gunn said he blamed the plaintiff’s lawyers for the extensive fight, adding that he told the jury, “The reason I’m trying this case is Lloyd Bell is stubbornly litigious.” Bell responded by noting that the Court of Appeals had already reviewed the bad faith issue from the first trial, in which the jury awarded $675,782 in attorneys’ fees, and upheld the trial court’s decision to sanction Kroger for spoliation. “It’s time to pay the judgment,” Bell said. Bell agreed that the battle has gone on too long, but he held Kroger accountable, saying the grocer has put his client through nearly five years of “brutal and exhausting” litigation. The story began on May 25, 2008. According to the plaintiff’s portion of the pre-trial order, Charles Walters Jr., then a 49-year-old landscape business owner, was shopping in a Kroger with his teenage daughter. He was near the meat department looking for hot dogs when he slipped and fell on something gooey. An unidentified customer cleaned it off the floor and determined it was a banana. The store manager suggested in the first trial that a baby had dropped the banana, saying that a half-hour after the accident he saw a baby eating the fruit in a shopping cart in the checkout area. During discovery before the first trial, Walters’ attorneys sought video evidence that they believed would show when the banana was dropped, how long it remained on the floor without being cleaned and images of their client’s fall. But Kroger had not maintained the video recordings. Kroger, represented then by solo Douglas Wilde of Tyrone, argued that the video evidence wouldn’t have mattered because the camera was pointed away from the spot where Walters fell. The store even produced a video sample to show that the accident area wouldn’t have been shown. While Walters’ lawyers were in the store for a deposition, they asked a manager to show them the live video feed from the same camera on his computer. To their surprise, although another manager had just sworn the camera had never been moved, the live feed showed exactly where Walters fell. “We couldn’t believe it,” Bell said after the first trial. “The camera had obviously caught everything.” The judge sanctioned Kroger for spoliation by ordering that the company couldn’t defend itself against Walters’ negligence claim. The Court of Appeals upheld the trial court on the spoliation sanction, except for the exclusion of testimony from the meat department manager, David Wiggly. When it finally came his turn to testify in the second trial, the meat manager offered an explanation of why the camera had been moved after Walters’ fall. Wiggly said he moved the camera temporarily to point toward his department to catch shoplifters who were stealing steaks. Bell and Berger said they felt their cross examination of Wiggly established that his explanation made no difference. And they noted he offered no evidence of ever catching any “steak burglars” with the video camera. Bell and Berger said the second trial was challenging because Kroger had been able to review the transcript of the first trial and had filed a long list of motions in limine to restrict what the plaintiff’s counsel could say. For example, Bell had told the first jury to make a statement that could be heard all the way in Cincinnati, where Kroger’s headquarters is located. That encouragement wasn’t allowed at the second trial. Bell said Gunn defended Kroger much more aggressively than Wilde had done in the first trial, preventing the plaintiff’s lawyers from making any statements “that sounded like advocacy.” The second trial also featured another new witness—a medical expert to challenge whether Walters’ fall was the cause of his back injury. The expert, Dr. John Heller, an orthopedic surgeon from Emory Medical Center, suggested Walters would have needed surgery regardless of the accident for pre-existing spinal degeneration. Bell said Heller is one of the best known orthopedic surgeons in the country, and that Kroger spent a total of $24,000 for his testimony—breaking down the cost to $800 an hour. He used that defense expense in his closing arguments regarding the value of time, asking the jury to value Walters’ time for lost wages and pain. Walters also claimed $135,000 in medical bills for back surgery. His treating physicians testified that his back was fine before the fall, Bell said. The case is Walters v. Kroger, No. 09-C-14740-S4.