VINEYARD INDUSTRIES, INC. d/b/a McDONALD'S RESTAURANTS
DESTA BAILEY et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Industries, Inc., d/b/a McDonald's Restaurants
("Vineyard") appeals the judgment entered against
it in a negligence action brought by Desta Bailey, as parent
and guardian for Antonia Bailey, a minor (collectively the
"Baileys").Vineyard argues on appeal that the trial
court erred in (1) allowing the Baileys' counsel to use
story boards with pictures of testifying witnesses and
quotations from their deposition testimony in opening
statement that were inconsistent with their trial testimony;
(2) excluding certain testimony by Vineyard's expert
witness; and (3) entering judgment on the pain and suffering
damages awarded by the jury, which Vineyard asserts was
inconsistent with the evidence at trial. For the following
reasons, we affirm.
appeal, the presumption as to the validity of a jury verdict
requires that all the evidence and every presumption and
inference drawn from the evidence be construed most favorably
to the jury verdict. McIntee v. Deramus, 313 Ga.App.
653, 653 (722 S.E.2d 377) (2012). So construed, the evidence
shows that on the morning of April 18, 2013, before heading
to school, Antonia Bailey ("Antonia") stopped for
breakfast at a McDonald's restaurant owned by Vineyard.
After ordering, Antonia went to the restroom, which was in
the opposite direction from both the door she had entered and
the restaurant's drink machine. After exiting the
restroom, Antonia walked toward the drink machine. She was
watching where she was walking and looking at the drink
machine. She was not on her cell phone or otherwise
distracted. Nevertheless, she slipped in front of the drink
machine and fell.
remembers that after she fell she noticed that the floor
around the drink machine was wet, and a number of witnesses
testified that it appeared that the area had just been
mopped. In fact, when Antonia landed, she was facing a
McDonalds' worker who was mopping another area of the
restaurant. However, Antonia did not see a wet floor sign in
the vicinity of the drink machine or in the direction from
which she had walked, and one of the cashiers, who came to
help her after she fell, told her that the employee was
mopping and should have put out a wet floor sign. The only
wet floor sign anyone remembered seeing was in the vicinity
where the employee was then mopping, which was by the
drive-through entrance that Antonia had used to enter the
restaurant, although neither the employee nor the sign were
there when she entered the building.
February 14, 2014, Desta Bailey filed suit on behalf of her
then-minor daughter, Antonia, against Vineyard for damages
under a negligence theory. A jury trial commenced on January
19, 2016 and was completed two days later with the jury's
return of a verdict in favor of the Baileys. The trial court
entered judgment in accordance with the verdict, awarding
$16, 206.51 to Desta for past medical expenses incurred on
behalf of Antonia and $28, 224.82 for past medical expenses,
$29, 999 for future medical expenses, and $600, 000 for pain
and suffering to Antonia. It also entered judgment for Desta
Bailey in the amount of $10, 928.94 as interest under
Georgia's Unliquidated Damages Act. Following the denial
of its motion for a new trial, Vineyard filed this appeal.
Vineyard's first enumeration of error, it contends that
the Baileys' use of demonstrative exhibits during opening
statement with quotations from witnesses' depositions was
improper and the quotations prejudiced the jury because they
were inconsistent with the evidence presented at trial.
civil trial, "counsel for either party shall be
permitted to use a blackboard and models or similar devices
in connection with his argument for the purpose of
illustrating his contentions with respect to the issues which
are to be decided by the jury, provided that counsel shall
not in writing present any argument that could not properly
be made orally." OCGA § 9-10-183. Counsel are given
wide latitude in the use of demonstratives to assist in the
jury's understanding of the issues to be decided at
trial. Tench v. Galaxy Appliance & Furniture Sales,
Inc., 255 Ga.App. 829, 830-31 (1) (a) (567 S.E.2d 53)
(2002) (physical precedent only); Oglethorpe Power Corp.
v. Sheriff, 210 Ga.App. 299, 303 (6) (436 S.E.2d 14)
(1993). See also Lewyn v. Morris, 135 Ga.App. 289,
290 (1) (217 S.E.2d 642) (1975) ("Counsel for both
parties in either a civil or a criminal case, preliminary to
the introduction of evidence, may state to the jury what each
expects to prove on the trial.") (citation and
punctuation omitted). Upon objection to such evidence, the
trial court has discretion in determining whether such
demonstrative exhibits will be allowed, which we will uphold
absent an abuse of that discretion. Sheriff, 210
Ga.App. at 303 (6) (trial court did not abuse its discretion
in allowing counsel to read law in a civil case during
opening argument and to present "such law by means of
excerpts on charts").
evident from the record that Baileys' counsel used trial
boards in opening statement with quotations from witness
depositions and that Vineyard's counsel objected to their
use. Counsel's stated use for these trial boards was to
assist in clarifying to the jury what he intended the
evidence to show by allowing the jury "to read along so
that it doesn't all stream together and get lost."
However, the trial boards were not included in the record on
appeal nor does it appear that Vineyard requested that they
be preserved for appeal. As the appealing party, Vineyard
"bore the burden of ensuring an accurate and complete
record on appeal and of taking steps to have the record
supplemented with any necessary materials." (Citation
and punctuation omitted.) Central Ga. Women's Health
Center, LLC v. Dean, 342 Ga.App. 127, 133 (1) (a) (800
S.E.2d 594) (2017). See also Griffin Builders v. Synovus
Bank, 320 Ga.App. 307, 309 (739 S.E.2d 760) (2013)
("[I]t is the appellant's duty to include in the
record on appeal the items necessary for the appellate court
to objectively review the evidence and proceedings giving
rise to [the trial court's ruling.]") (citation and
punctuation omitted); Ga.Ct.App. R. 18 (b) ("[I]t is the
burden of the appealing party to ensure that a complete
record is transmitted to this Court on appeal[.]")
Accordingly, we must presume that the evidence supported the
trial court's ruling, and thus we find no abuse of
discretion in permitting the trial boards to be used during
opening statement. See Crawford v. State, 288 Ga.
425, 427 (2) (a) (704 S.E.2d 772) (2011).
Vineyard next argues that the trial court erred in allowing
the Baileys to make a purportedly untimely objection to a
portion of Vineyard's expert's testimony and in
excluding that testimony after a hearing. The trial
court's determination of whether a witness is qualified
as an expert and whether to exclude a portion or the entirety
of an expert's testimony shall not be disturbed absent
manifest abuse of discretion. HNTB Ga., Inc. v.
Hamilton-King, 287 Ga. 641, 642 (1) (697 S.E.2d 770)
(2010); Mason v. Home Depot U.S.A., Inc., 283 Ga.
271, 279 (5) (658 S.E.2d 603) (2008).
morning of trial, the Baileys made a verbal motion in limine
seeking to preclude Vineyard's expert, Dr. Eric
Boulhouwer, Ph.D., from testifying regarding one of his four
proposed opinions, arguing that it was not based upon any
reliable methodology and that it would not be helpful to the
jury. The trial court reserved ruling on this motion until
Vineyard called Dr. Boulhouswer to testify. The trial court
held a hearing shortly before Dr. Boulhouwer was called to
testify, and based upon the voir dire testimony the trial
court determined that although Vineyard could argue the
substance of Dr. Boulhouwer's opinion, he could not
testify to that opinion as an expert.
Vineyard first argues that the Baileys' objection to Dr.
Boulhouwer's testimony was untimely because it was made
after the pretrial order was entered, and the trial court
committed reversible error in allowing such an untimely
OCGA § 24-7-702 (d), the trial court may, upon motion by
one of the parties, hold a pretrial hearing to determine
whether a proposed expert witness qualifies as an expert
under the statute and if his testimony meets the requirements
of OCGA § 24-7-702 (a) and (b) to testify as an expert.
The statute provides that such a hearing and the trial
court's ruling "shall be completed no later than the
final pretrial conference." OCGA § 24-7-702.
case, however, Vineyard did not identify Dr. Boelhouwer as an
expert witness until one business day before the consolidated
pretrial order was filed. The pretrial order reserved the
Baileys' right to file motions to challenge any
late-disclosed experts, and the Baileys, on the morning of
trial, brought their motion to the trial court's
attention several days after Dr. Boelhouwer was presented for
deposition. See OCGA § 9-11-16 (b) ("The order,
when entered, controls the subsequent course of the action
unless modified at the trial to prevent manifest
injustice."). Moreover, the record contains no
indication that the trial court held a final pretrial
conference at which the motion in limine could have been
heard. Accordingly, we find no abuse of the trial court's
discretion to entertain the Baileys' motion.
Giannotti v. Beleza Hair Salon, Inc., 296 Ga.App.
636, 640-41 (1) (675 S.E.2d 544) (2009) (no abuse of
discretion for trial court to consider motion in limine to
exclude expert testimony when expert was identified two years
after interrogatories requesting names and opinions of
experts were served and deposition was not scheduled until
one week before trial); Ga. Dept. of Transp. v.
Baldwin, 292 Ga.App. 816, 818 n.3 (665 S.E.2d 898) ...