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Vineyard Industries, Inc. v. Bailey

Court of Appeals of Georgia, First Division

October 27, 2017



          McMillian, Judge.

         Vineyard 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.

         On 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.

         Antonia 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.

         On 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.

         1. In 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.

          In a 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").

         It is 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.[1] See Crawford v. State, 288 Ga. 425, 427 (2) (a) (704 S.E.2d 772) (2011).

         2. 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).

         On the 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.[2]

         (a) 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 objection.

         Under 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.

         In this 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) ...

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