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Filing # 29509540 E-Filed 07/10/2015 02:06:10 PM
IN THE CIRCUIT COURT OF THE
TWELFTH JUDICIAL CIRCUIT IN AND
FOR MANATEE COUNTY, FLORIDA
CASE NO. 12-CA3458
SANDY WITTKE,
Plaintiff,
Vv
WAL-MART STORES, INC.,
Defendant.
RESPONSE TO PLAINTIFF’ S MOTION FOR NEW TRIAL
DEFENDANT, Wal-Mart Stores, Inc., files its Response to the
Plaintiff's Motion for New Trial (certificate date July 2,
2015), and requests that this Court deny the Plaintiff’s Motion
or in the alternative, set the Motion for hearing, and states as
follows:
On July 2, 2015, Plaintiff filed its Motion for New Trial.
The Plaintiff made various assertions for which they believe
merit a new trial. Boiled down, they are the following:
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a) That Plaintiff elicited testimony at
trial that Wal-Mart Stores, Inc.
employees did not follow Wal-Mart
policies and procedures;
b) That the defense closing argument
utilized a Powerpoint slide with 75
stick figures; and
c} That Plaintiff was not able to present
evidence regarding Social Security
Disability.
I. As this Court is aware, a motion for new trial should only
be granted when the manifest weight of the evidence does not
support the verdict. It has been determined by the Courts in
Florida that “manifest” means clearly evident, clear, plain, and
indisputable. Where there is substantial competent evidence to
support the verdict, it should stand. The trial court should
not substitute its conclusions based upon the evidence, in place
of the views and conclusions of the jury. Brown v. Estate of
Stuckey, 749 So. 2d 490 (Fla. 1999). A trial judge should not
grant a motion for new trial unless “the jury has been deceived
as to the force and credibility of the evidence or has been
influenced by considerations outside the record.” Id. at 497.
The 6 selected and agreed upon jurors deliberated for
approximately one hour and returned a Defense Verdict having
weighed the credibility of the fact witnesses in conjunction
with the Court’s jury instructions including those on negligence
and believability of witnesses.
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The Plaintiff‘s argument to this Court that there may have
been testimony regarding Wal-Mart's employees failure to follow
a Wal-Mart mat policy is only part of the evidence the jury
considered. Plaintiff fails to include that two Wal-mart
employees testified that mats were not used in 2009. Both Mr.
Aldrich and Ms. Huntsinger testified that mats were not in use
in 2009.
Further, the jury saw the video of the incident which
depicted the use of fans and large yellow warning cones as
reasonable measures to keep partrons safe. The video evidence
showed Ms. Wittke walking in from the rain and stepping with her
flip flop/sandal in essentially the same spot as Mr. Temple, her
boyfriend. The jury considered all of the evidence and rejected
Plaintiff's claims. The jury’s verdict should be respected.
Florida courts have held that the mere disagreement with a
jury’s verdict will not support a finding that the verdict is
against the manifest weight of the evidence. Becker Vv.
Williams, 652 So. 2d 1182 (Fla. 1995). ‘The weight to be given
conflicting evidence, especially where the credibility of the
witnesses is an issue, is a question for the jury and never one
for the court.” Id. at 1185. “To allow the court to invade
this province of the jury would violate the right to a jury
trial.” Id.
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It.
As it pertains to Plaintiff’s claim regarding a misleading
closing argument, this position fails for two reasons. First,
Plaintiff argues that the use of a Powerpoint containing a
graphic of 75 figures’ was misleading to the jury. Again,
Plaintiff fails to appreciate the evidence that was actually
presented in front of the jury.
When the testimony was elicited from Mr. Aldrich concerning
the 79 patrons that crossed over the threshold after the
scrubber went over the area, the Court will recall that the
undersigned elicited from Mr. Aldrich that the individuals that
crossed over the threshold would have been different shapes
sizes and with different shoe wear. It is a tortured argument by
Plaintiff to suggest that the representation of those 79
individuals in the form of a stick figure “mislead” the jury
into thinking that 79 identical people crossed over the
threshold. The reality is that this issue was covered by defense
counsel in cross-examination and also during the closing
argument. Plus, the jury obviously, as instructed by the Court,
can use its common_sense in evaluating the types of people that
would cross over the threshold. To suggest that the jury was
* plaintiff‘s Motion for New Trial references 75 customers but the testimony
was that 79 customers passed through the area.
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“mislead” by the representation of stick figures is without any
merit.
Further, Plaintiff's counsel both in the one hour and 40
minute initial closing argument or the 15 minute rebuttal
argument was free to address these issues with the jury
concerning the shapes sizes and types of people wearing all
types of shoes that would have crossed the threshold. The fact
that Plaintiff chose not to do so in her argument shows that
this is an argument without any merit.
Additionally, Plaintiff did not raise any contemporaneous
objection to this argument in closing. As this Court is well
aware the Florida Supreme Court decision of Murphy v.
International Robotics System, Inc., 766 So.2a 1010 (Fla. 2000)
governs unobjected to closing arguments. In this matter,
Plaintiff made no objection to the now complained of remarks.
Murphy mandates that the challenged argument must be improper,
harmful, incurable and be such that it so damages the fairness
of trial, that the public’s interests in our system of justice
requires a new trial Murphy at 1031. Plaintiff cannot meet any
of the standards under Murphy.
The argument was completely proper as it was based on
evidence placed before the jury. Plaintiff can in no way argue
that it so damaged the fairness of the trial that the public's
interest in our system of justice requires a new trial. Rather,
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Plaintiff made the decision to argue in her opening statement
that the scrubber went over the exact same place where Ms.
Wittke fell. The evidence that nearly one hour passed and 79
people crossed over the threshold in the general area that she
fell was relevant and undermined the credibility of the argument
advanced by Plaintiff. To suggest that the defense would not be
permitted to make these arguments to a jury based on the
evidence that was admitted at trial, would have unfairly
prejudiced the defense. This evidence was admitted for the
jury’s consideration and it was appropriate for defense counsel
to comment on that evidence in closing argument.
Imr.
Lastly, Plaintiff argues that the Trial Court erred in
failing to allow the Plaintiff to tell the jury that the
Plaintiff was collecting social security disability benefits.
Again, this argument is wholly without merit.
The Florida courts are clear that collateral sources are
inadmissible at trial and this court correctly ruled prior to
trial that evidence that Ms. wittke was receiving social
security disability payments was inadmissible. Gormley v. GTE
Products Corp., 587 So.2d 455 (Fla. 1991).
This argument fails to require a new trial for two reasons.
First, this argument addresses the issue of damages, an issue
the jury never reached. The jury in this case made a decision on
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the issue of liability finding that there was no negligence on
the part of Wal-Mart. The issue complained of by Plaintiff as it
pertained to disability payments in her Motion for New Trial
only would address an issue as_to error of damages. Since the
jury never reached that issue when it found that Wal-Mart was
not negligent, the Motion should be denied on this basis alone.
Additionally, even if the Court were to consider this
issue, it should be denied because the Plaintiff failed to prove
her case by presenting any evidence for this Court to consider
(or for the jury to consider for that matter). The defense
closing argument was appropriate based on the evidence. The
Plaintiff put on two medical physicians to testify and neither
of those physicians testified that the Plaintiff was unable to
work. Plaintiff's treating physician, Dr. Harvey Bishow,
specifically stated that when he last saw her nearly 3 years
ago, she was free to return to full activity. Dr. Arroyo who
testified also did not provide any testimony that Ms. Wittke was
unable to work. As such, the closing argument by defense counsel
was factually accurate and based upon the evidence.
Plaintiff now tries to argue that she should have been
permitted to put in evidence of SSDI payments. It has already
been established that evidence of those payments is irrelevant
and not admissible. What Plaintiff should have done was call any
physician to present testimony that in his or her opinion the
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Plaintiff was disabled. If there was a physician who supported
Ms. Wittke’s claim for SSDI benefits, Plaintiff could have
called that physician to indicate via testimony for the jury’s
consideration that Ms. Wittke was disabled. Plaintiff failed to
do so. Plaintiff now wants to complain post trial about the
Plaintiff's failure to call a witness to support the wage loss
claim. This Court has no basis to determine why social security
disability benefits were awarded to Ms. Wittke. Again, because
there was no evidence presented to the Court or to the jury
about Ms. Wittke’s “disability.” The jury is not free to
speculate without evidence as to why Ms. Wittke was determined
to be disabled. Her disability could relate to many things none
of which was presented to this jury for its consideration The
standard for the award of those disability benefits also was not
placed before this Court.
The point of all of this is that the Plaintiff had the
burden of putting forth evidence to support the wage loss claim.
The two expert witnesses that Plaintiff called that were capable
ef offering that testimony not only failed to offer it, but one
of them testified affirmatively that she could return to work.
If Plaintiff had other witnesses, including any witnesses that
supported Ms. Wittke’s application for benefits, Plaintiff was
free to call those witnesses in her case in chief. That witness
would not have to disclose anything about SSDI payments but
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rather could have testified that based on an examination or
review of medical records that he or she felt that she was
disabled. Plaintiff simply failed to call that witness. That
does not require a new trial.
CONCLUSION
The jury's verdict in this case after 4 days of trial and
approximately 1 hour of jury deliberations resulted in a defense
verdict in favor of Wal-Mart. That verdict should not be
disturbed by this Court based on the arguments advanced by
Plaintiff's counsel. There was evidence including the viewing of
the video tape of the incident from which the jury’s
determination that Wal-Mart was not negligent was reasonable and
not contrary to the manifest weight of the evidence. Rather,
there was ample evidence at trial supporting the jury’s verdict
and defense counsel’s closing argument. It is requested that
this Court deny Plaintiff's Motion for New Trial and enter the
Final Judgment previously provided to the Court.
WHEREFORE, Defendant, WAL-MART STORES, INC., requests that
this Court deny the Plaintiff's Motion for New Trial and enter
the proposed Final Judgment previously provided.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 10, 2015, I electronically
filed the foregoing with the Clerk of the Court using the ECF
system. I further certify that a true and correct copy hereof has
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been furnished by ECF/email to Melton Harry Little, Esquire,
mlittle@kallinsandlittle.com and service@kallinsandlittle.com.
(CL
RICHARD B. MANGAN\ ‘SR., ESQUIRE
Florida Bar No. 0947156
Email: rbm,.service@rissman.com
PAUL B. FULMER IIT, ESQUIRE
Florida Bar No. 0125857
Email: pbf.service@rissman.com
RISSMAN, BARRETT, HURT
DONAHUE & MCLAIN, P.A.
1 North Dale Mabry Highway
llth Floor
Tampa, FL 33609
Telephone (813) 221-3114
Facsimile (813) 221-3033
Attorneys for Defendant
10
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Filing # 29509540 E-Filed 07/10/2015 02:06:10 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR MANATEE COUNTY, FLORIDA CASE NO. 12-CA3458 SANDY WITTKE, Plaintiff, Vv WAL-MART STORES, INC., Defendant. RESPONSE TO PLAINTIFF’ S MOTION FOR NEW TRIAL DEFENDANT, Wal-Mart Stores, Inc., files its Response to the Plaintiff's Motion for New Trial (certificate date July 2, 2015), and requests that this Court deny the Plaintiff’s Motion or in the alternative, set the Motion for hearing, and states as follows: On July 2, 2015, Plaintiff filed its Motion for New Trial. The Plaintiff made various assertions for which they believe merit a new trial. Boiled down, they are the following: E-Filed with MCCC - 2012CA003458AX- 7/10/2015 2:06 PM - PG 1 of 10 a) That Plaintiff elicited testimony at trial that Wal-Mart Stores, Inc. employees did not follow Wal-Mart policies and procedures; b) That the defense closing argument utilized a Powerpoint slide with 75 stick figures; and c} That Plaintiff was not able to present evidence regarding Social Security Disability. I. As this Court is aware, a motion for new trial should only be granted when the manifest weight of the evidence does not support the verdict. It has been determined by the Courts in Florida that “manifest” means clearly evident, clear, plain, and indisputable. Where there is substantial competent evidence to support the verdict, it should stand. The trial court should not substitute its conclusions based upon the evidence, in place of the views and conclusions of the jury. Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999). A trial judge should not grant a motion for new trial unless “the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.” Id. at 497. The 6 selected and agreed upon jurors deliberated for approximately one hour and returned a Defense Verdict having weighed the credibility of the fact witnesses in conjunction with the Court’s jury instructions including those on negligence and believability of witnesses. E-Filed with MCCC - 2012CA003458AX- 7/10/2015 2:06 PM - PG 2 of 10 The Plaintiff‘s argument to this Court that there may have been testimony regarding Wal-Mart's employees failure to follow a Wal-Mart mat policy is only part of the evidence the jury considered. Plaintiff fails to include that two Wal-mart employees testified that mats were not used in 2009. Both Mr. Aldrich and Ms. Huntsinger testified that mats were not in use in 2009. Further, the jury saw the video of the incident which depicted the use of fans and large yellow warning cones as reasonable measures to keep partrons safe. The video evidence showed Ms. Wittke walking in from the rain and stepping with her flip flop/sandal in essentially the same spot as Mr. Temple, her boyfriend. The jury considered all of the evidence and rejected Plaintiff's claims. The jury’s verdict should be respected. Florida courts have held that the mere disagreement with a jury’s verdict will not support a finding that the verdict is against the manifest weight of the evidence. Becker Vv. Williams, 652 So. 2d 1182 (Fla. 1995). ‘The weight to be given conflicting evidence, especially where the credibility of the witnesses is an issue, is a question for the jury and never one for the court.” Id. at 1185. “To allow the court to invade this province of the jury would violate the right to a jury trial.” Id. E-Filed with MCCC - 2012CA003458AX- 7/10/2015 2:06 PM - PG 3 of 10 It. As it pertains to Plaintiff’s claim regarding a misleading closing argument, this position fails for two reasons. First, Plaintiff argues that the use of a Powerpoint containing a graphic of 75 figures’ was misleading to the jury. Again, Plaintiff fails to appreciate the evidence that was actually presented in front of the jury. When the testimony was elicited from Mr. Aldrich concerning the 79 patrons that crossed over the threshold after the scrubber went over the area, the Court will recall that the undersigned elicited from Mr. Aldrich that the individuals that crossed over the threshold would have been different shapes sizes and with different shoe wear. It is a tortured argument by Plaintiff to suggest that the representation of those 79 individuals in the form of a stick figure “mislead” the jury into thinking that 79 identical people crossed over the threshold. The reality is that this issue was covered by defense counsel in cross-examination and also during the closing argument. Plus, the jury obviously, as instructed by the Court, can use its common_sense in evaluating the types of people that would cross over the threshold. To suggest that the jury was * plaintiff‘s Motion for New Trial references 75 customers but the testimony was that 79 customers passed through the area. E-Filed with MCCC - 2012CA003458AX- 7/10/2015 2:06 PM - PG 4 of 10 “mislead” by the representation of stick figures is without any merit. Further, Plaintiff's counsel both in the one hour and 40 minute initial closing argument or the 15 minute rebuttal argument was free to address these issues with the jury concerning the shapes sizes and types of people wearing all types of shoes that would have crossed the threshold. The fact that Plaintiff chose not to do so in her argument shows that this is an argument without any merit. Additionally, Plaintiff did not raise any contemporaneous objection to this argument in closing. As this Court is well aware the Florida Supreme Court decision of Murphy v. International Robotics System, Inc., 766 So.2a 1010 (Fla. 2000) governs unobjected to closing arguments. In this matter, Plaintiff made no objection to the now complained of remarks. Murphy mandates that the challenged argument must be improper, harmful, incurable and be such that it so damages the fairness of trial, that the public’s interests in our system of justice requires a new trial Murphy at 1031. Plaintiff cannot meet any of the standards under Murphy. The argument was completely proper as it was based on evidence placed before the jury. Plaintiff can in no way argue that it so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial. Rather, E-Filed with MCCC - 2012CA003458AX- 7/10/2015 2:06 PM - PG 5 of 10 Plaintiff made the decision to argue in her opening statement that the scrubber went over the exact same place where Ms. Wittke fell. The evidence that nearly one hour passed and 79 people crossed over the threshold in the general area that she fell was relevant and undermined the credibility of the argument advanced by Plaintiff. To suggest that the defense would not be permitted to make these arguments to a jury based on the evidence that was admitted at trial, would have unfairly prejudiced the defense. This evidence was admitted for the jury’s consideration and it was appropriate for defense counsel to comment on that evidence in closing argument. Imr. Lastly, Plaintiff argues that the Trial Court erred in failing to allow the Plaintiff to tell the jury that the Plaintiff was collecting social security disability benefits. Again, this argument is wholly without merit. The Florida courts are clear that collateral sources are inadmissible at trial and this court correctly ruled prior to trial that evidence that Ms. wittke was receiving social security disability payments was inadmissible. Gormley v. GTE Products Corp., 587 So.2d 455 (Fla. 1991). This argument fails to require a new trial for two reasons. First, this argument addresses the issue of damages, an issue the jury never reached. The jury in this case made a decision on E-Filed with MCCC - 2012CA003458AX- 7/10/2015 2:06 PM - PG 6 of 10 the issue of liability finding that there was no negligence on the part of Wal-Mart. The issue complained of by Plaintiff as it pertained to disability payments in her Motion for New Trial only would address an issue as_to error of damages. Since the jury never reached that issue when it found that Wal-Mart was not negligent, the Motion should be denied on this basis alone. Additionally, even if the Court were to consider this issue, it should be denied because the Plaintiff failed to prove her case by presenting any evidence for this Court to consider (or for the jury to consider for that matter). The defense closing argument was appropriate based on the evidence. The Plaintiff put on two medical physicians to testify and neither of those physicians testified that the Plaintiff was unable to work. Plaintiff's treating physician, Dr. Harvey Bishow, specifically stated that when he last saw her nearly 3 years ago, she was free to return to full activity. Dr. Arroyo who testified also did not provide any testimony that Ms. Wittke was unable to work. As such, the closing argument by defense counsel was factually accurate and based upon the evidence. Plaintiff now tries to argue that she should have been permitted to put in evidence of SSDI payments. It has already been established that evidence of those payments is irrelevant and not admissible. What Plaintiff should have done was call any physician to present testimony that in his or her opinion the E-Filed with MCCC - 2012CA003458AX- 7/10/2015 2:06 PM - PG 7 of 10 Plaintiff was disabled. If there was a physician who supported Ms. Wittke’s claim for SSDI benefits, Plaintiff could have called that physician to indicate via testimony for the jury’s consideration that Ms. Wittke was disabled. Plaintiff failed to do so. Plaintiff now wants to complain post trial about the Plaintiff's failure to call a witness to support the wage loss claim. This Court has no basis to determine why social security disability benefits were awarded to Ms. Wittke. Again, because there was no evidence presented to the Court or to the jury about Ms. Wittke’s “disability.” The jury is not free to speculate without evidence as to why Ms. Wittke was determined to be disabled. Her disability could relate to many things none of which was presented to this jury for its consideration The standard for the award of those disability benefits also was not placed before this Court. The point of all of this is that the Plaintiff had the burden of putting forth evidence to support the wage loss claim. The two expert witnesses that Plaintiff called that were capable ef offering that testimony not only failed to offer it, but one of them testified affirmatively that she could return to work. If Plaintiff had other witnesses, including any witnesses that supported Ms. Wittke’s application for benefits, Plaintiff was free to call those witnesses in her case in chief. That witness would not have to disclose anything about SSDI payments but E-Filed with MCCC - 2012CA003458AX- 7/10/2015 2:06 PM - PG 8 of 10 rather could have testified that based on an examination or review of medical records that he or she felt that she was disabled. Plaintiff simply failed to call that witness. That does not require a new trial. CONCLUSION The jury's verdict in this case after 4 days of trial and approximately 1 hour of jury deliberations resulted in a defense verdict in favor of Wal-Mart. That verdict should not be disturbed by this Court based on the arguments advanced by Plaintiff's counsel. There was evidence including the viewing of the video tape of the incident from which the jury’s determination that Wal-Mart was not negligent was reasonable and not contrary to the manifest weight of the evidence. Rather, there was ample evidence at trial supporting the jury’s verdict and defense counsel’s closing argument. It is requested that this Court deny Plaintiff's Motion for New Trial and enter the Final Judgment previously provided to the Court. WHEREFORE, Defendant, WAL-MART STORES, INC., requests that this Court deny the Plaintiff's Motion for New Trial and enter the proposed Final Judgment previously provided. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 10, 2015, I electronically filed the foregoing with the Clerk of the Court using the ECF system. I further certify that a true and correct copy hereof has E-Filed with MCCC - 2012CA003458AX- 7/10/2015 2:06 PM - PG 9 of 10 been furnished by ECF/email to Melton Harry Little, Esquire, mlittle@kallinsandlittle.com and service@kallinsandlittle.com. (CL RICHARD B. MANGAN\ ‘SR., ESQUIRE Florida Bar No. 0947156 Email: rbm,.service@rissman.com PAUL B. FULMER IIT, ESQUIRE Florida Bar No. 0125857 Email: pbf.service@rissman.com RISSMAN, BARRETT, HURT DONAHUE & MCLAIN, P.A. 1 North Dale Mabry Highway llth Floor Tampa, FL 33609 Telephone (813) 221-3114 Facsimile (813) 221-3033 Attorneys for Defendant 10 E-Filed with MCCC - 2012CA003458AX- 7/10/2015 2:06 PM - PG 10 of 10