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Hillman v. ALDI, Inc.

Court of Appeals of Georgia, Third Division

March 13, 2019


          GOBEIL, COOMER and HODGES, JJ.

          GOBEIL, JUDGE.

         These companion appeals arise out of a premises liability action brought against ALDI, Inc. by Rubie Hillman for injuries Hillman allegedly sustained while shopping at an ALDI grocery store. Hillman's attorney was found in contempt by the trial court after he twice asserted during his closing argument that ALDI had spoliated video evidence of the incident giving rise to Hillman's claims. The jury thereafter returned a verdict in favor of the defense, and in Case No. A18A1673, Hillman appeals from the order of judgment entered on that verdict. Hillman asserts that the trial court erred in: (1) failing to limit, over Hillman's objection, the cross-examination of Hillman's son and thereafter denying Hillman's motion for a curative instruction; (2) admitting two of ALDI's exhibits without requiring ALDI to lay a proper foundation; (3) limiting Hillman's cross-examination of the ALDI store manager; and (4) refusing to allow Hillman's attorney to argue in closing that ALDI had destroyed video evidence of the incident. In Case No. A18A1672, Hillman appeals the order of contempt entered against her attorney, arguing that the evidence failed to support a finding of contempt. For reasons explained more fully below, we find no reversible error in any of the trial court's evidentiary rulings, and we therefore affirm the judgment entered on the jury's verdict in Case No. A18A1673.

         In Case No. A18A1672, we find that the trial court failed to apply the correct evidentiary standard in imposing summary criminal contempt on Hillman's attorney and also failed to make the factual findings necessary to support its contempt order. Accordingly, in that case, we vacate the order of contempt and remand for reconsideration and, if warranted, entry of a new contempt order that complies with the requirements set forth in In re Jefferson, 283 Ga. 216 (657 S.E.2d 830) (2008).

         On appeal from a judgment entered on a jury's verdict, we construe the evidence in the light most favorable to that verdict. Smith v. Norfolk Southern Railway Co., 337 Ga.App. 604, 605 (788 S.E.2d 508) (2016). So construed, the relevant facts are set forth below.

         The Incident Leading to Hillman's Alleged Injuries

         In August 2014, Hillman, who was then approximately 79 years old, was shopping for groceries at an ALDI store in Conyers. As Hillman was looking at vegetables in the store's produce section, an ALDI employee was re-stocking the produce, taking the new inventory from boxes that were stacked on a wooden pallet. One or more of the empty cardboard boxes fell and struck Hillman, pushing her into the produce display case and leaving a large scrape on her lower left leg. Because she had her back turned, Hillman did not know how the boxes fell.

         The employee from the produce area went to the store manager and reported the incident, and the manager then investigated. By the time the manager spoke with Hillman, Hillman had begun to experience a burning sensation in her leg, describing the sensation as feeling "like fire [being] shoved up my leg." The manager brought Hillman an ice pack for her leg and, based on information provided by Hillman and the produce-area employee, the manager filled out an accident report form for the store.

         The store manager testified that although she did not witness the incident, the scene immediately afterwards led her to conclude that Hillman was hit by empty boxes. She explained that the produce area was clean and that if the boxes had contained produce, items from the boxes would have spilled onto the floor. The manager further testified as to her belief that the boxes that fell had been stacked on the floor and not the pallet. According to the manager, per the store's practice, any employee restocking the area would take a full box from the pallet, empty it, and then set the empty box to the side of the pallet and onto the floor.

         During his cross-examination of the store manager, Hillman's attorney asked her: "Do you think if the ALDI employee . . . had stacked the boxes [in such a way] that they ended up falling over and . . . hitting a customer, do you think that ALDI would be [at fault]?" Defense counsel objected because the question assumed facts not in evidence, and the trial court sustained the objection. Hillman's attorney thereafter began to pose a different question, stating, "if we can assume that an ALDI employee is the one that . . . stacked the boxes," and defense counsel again objected on the grounds that this question also assumed facts not in evidence. Defense counsel made a similar objection when Hillman's attorney asked the manager: "Do you have any reason to believe anybody but an ALDI employee stacked those boxes on the floor?" The trial court sustained both objections.

         The store manager also testified that the store had video surveillance cameras throughout the building and that the cameras were programmed to record "on a loop," meaning that eventually video would be recorded over if not preserved. The manager could not say how much time had to lapse before video was recorded over, and explained that it would be the district manager's job to preserve any video of the incident and forward it to ALDI's counsel. When shown the accident report she completed, the manager acknowledged that she had circled the "yes" response next to the question, "surveillance video of the incident." When shown the report filled out by the district manager regarding Hillman's accident, the store manager acknowledged that a note at the top of the report stated "sending video." The store manager, however, did not know whether any video was in fact preserved or forwarded by the district manager.

         Hillman's Diagnosis and Treatment

         In the weeks after her injury, Hillman's left leg continued to hurt and she developed what she described as "little round knots" that ran down the inner leg, from approximately the knee to the ankle. Hillman testified that the pain in the area was "constant," would travel both upwards and downwards, and involved a stinging or burning sensation. On September 2, 2014, approximately three weeks after the incident, Hillman sought treatment for her leg at the Rockdale Medical Center emergency room. The ER physician made no formal diagnosis and instead referred Hillman to her primary care physician. On September 5, 2014, Hillman saw the physician's assistant in her primary care physician's office, who diagnosed her with varicose veins, neuropathy, general leg pain, a contusion, claudication, [1] peripheral neuritis, and nerve root irritation at the S1, L4, and L5 vertebrae. The PA prescribed a compression hose for the left leg and recommended that Hillman undergo an ultrasound on her varicose veins. Hillman did not wear the support stocking, explaining that it caused the leg too much pain. There is no evidence that Hillman obtained the recommended ultrasound.

         After experiencing no improvement in her symptoms, Hillman went to the emergency room at the Newton Medical Center, on September 25, 2014. When she presented at Newton Medical Center, Hillman complained of pain in both legs and her lower back. She underwent an x-ray of both her lumbar spine and her left leg, was diagnosed with neuropathy, and was referred back to her primary care physician. Additionally, Hillman was given several prescriptions for pain and inflammation. Hillman, however, did not take any of those medications, as she was concerned about side effects. Hillman further explained that she never takes medicine, as she prefers to treat herself using herbs.

         Approximately four weeks after the incident, Hillman retained counsel, who referred her for treatment at Regional Medical Group ("RMG"), where Hillman was treated by two different doctors. In October 2014, Hillman saw Dr. Srihari Malempati at RMG. In the paperwork she filled out at her initial visit to RMG, Hillman listed back pain as one of her chief complaints. During its case, ALDI offered the testimony of Dr. Malempati through his video deposition, taken in advance of trial. Although Dr. Malempati did not discuss Hillman's back pain with her, he did examine her lower spine, which showed a normal range of motion with some tenderness on the left side. He also ordered an EMG nerve study, which showed nerve root irritation at the left L4 and L5 and bilateral S1 levels and therefore indicated that Hillman had pinched nerves in her lower back. Dr. Malempati acknowledged that the nerves located at L4, L5, and S1 run down the legs, so pinched nerves in those areas could cause leg pain. Despite these facts, Dr. Malempati did not order an MRI of Hillman's lower back because, given Hillman's description of her left leg pain, he did not believe it was related to the lower back.[2] . Based on his exam, Hillman's description of her symptoms, and the EMG study, Dr. Malempati diagnosed Hillman with a laceration, contusion, chronic pain, radiculopathy, and peripheral neuritis due to what he thought was an injury to the saphenous nerve.[3] Dr. Malempati explained that his diagnosis was consistent with Hillman's complaint of back pain, as an injury to the nerves in the calf could cause referred pain in the lower back.

         Dr. Malempati referred Hillman to physical therapy and prescribed an anti-inflammatory, but Hillman did not take the prescribed medication. After 15 sessions of physical therapy, Hillman experienced some improvement in her symptoms, but still continued to suffer pain, especially when she engaged in physical activity. Unable to diagnose Hillman further, Dr. Malempati referred her to a second doctor at RMG, Angela Ashley.

         At trial, Hillman offered the testimony of Dr. Ashley through her video deposition, taken in advance of trial. Hillman first saw Dr. Ashley in January 2015, and reported that her pain had continued to worsen over time. Based on Hillman's symptoms and history since the incident, Dr. Ashley, who is a neurologist, made a preliminary diagnosis of Complex Regional Pain Syndrome ("CRPS"). Dr. Ashley explained that CRPS involves pain that is disproportionate to a patient's injury, changes in motor function, changes in skin thickness and color, and abnormal sweating in the area. It is a "diagnosis of exclusion," meaning that other potential causes of the pain had to be ruled out before the diagnosis could be made. The symptoms that Dr. Ashley relied on to reach Hillman's CRPS diagnosis included Hillman's report that even light touch to the leg was painful; an area of abnormal discoloration on Hillman's left leg; and Hillman's report of multiple types of "abnormal sensations," such as burning, a deep aching, and the feeling that something was "inside her leg." Additionally, Dr. Ashley opined that varicose veins generally do not cause the type of pain Hillman was experiencing, and the area in which Hillman was experiencing pain was inconsistent with her areas of nerve root irritation.

         Dr. Ashley saw Hillman six times between January and August 2015, and during that time, Hillman's symptoms fluctuated. As long as Hillman refrained from physical activity, "she did pretty well," but her symptoms would worsen with increased activity, including squatting or bending down. Although Hillman continued to refuse oral medications, in June 2015 she agreed to try Lidoderm patches, which contained an anesthetic medication and were applied to the skin. At her August 2015 visit to Dr. Ashley, Hillman reported "profound improvement" with the use of the Lidoderm patches. Dr. Ashley then discharged Hillman from the practice and directed her to follow up with her primary care physician or neurologist for further Lidoderm patches.

         There was no evidence that Hillman sought any further treatment for her symptoms until May 2017, when she returned to Dr. Ashley. According to Dr. Ashley, Hillman returned because she was continuing to experience symptoms, more than two years after the accident. Dr. Ashley ordered a second EMG study, which again showed Hillman had nerve root irritation at the left L5 and S1 level.

         Expert Testimony for the Defense

         The defense presented the expert medical testimony of a physiatrist, meaning the expert was a physician with specialty training in physical medicine and rehabilitation. Having reviewed Hillman's medical records, the expert testified that in his opinion, Hillman did not suffer from CRPS, but instead suffered from pinched nerves in her lower back, an injury to the saphenous nerve, and/or varicose veins. The physician explained that these diagnoses were consistent with Hillman's symptoms, and that CRPS was not consistent with those symptoms. The expert further testified that Hillman's improvement with the use of Lidoderm patches and without oral medication or injections indicated that she did not have CRPS. Additionally, the fact that Hillman did not experience pain when she refrained from physical activity was also inconsistent with CRPS, as a patient with that syndrome "would have significant pain just from the simplest of things, such as wearing a sock, or something rubbing up against the leg." The expert also explained that a patient suffering from CRPS could not go 22 months without receiving any type of treatment, as Hillman had done. Finally, the expert noted that both of the EMG studies performed on Hillman indicated pinched nerves in Hillman's lower back, in an area ...

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