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IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF SAINT CROIX AT KINGSHILL ANNETTE CONSTABLE, Plaintiff, vs. KMART CORPORATION, Defendant. Lee J. Rohn, Esq. Law Offices of Lee J. Rohn 1101 King Street, Suite 2 Christiansted, St. Croix U.S. Virgin Islands 00820 (Attorney for Plaintiff) Andrew C. Simpson, Esq. Bryant, Barnes & Simpson, P.C. 47 King Street, 2nd Floor P.O. Box 4589 Christiansted, St. Croix U.S. Virgin Islands 00822 (Attorney for Defendant) CABRET, P.J. CIVIL NO. 936/1995 ACTION FOR DAMAGES NOT FOR PUBLICATION MEMORANDUM OPINION (uly 279000) Annette Constable sued Kmart Corporation ("Kmart") for injuries she sustained when she tripped and fell while shopping at Kmart’s store in Frederiksted, St. Croix. Following a four day trial, a jury awarded Constable $2,937,772 in damages. The matter is now before the Court on Kmart’s Motions for Judgment as a Matter of Law, New Trial or alternatively, Remittitur. In CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER support of its motions, Kmart alleges several errors concerning the sufficiency of evidence, the Court’s failure to exclude certain testimony and the jury instructions. For reasons which follow, the Court will deny Kmart’s Motion for Judgment as a Matter of Law, but concludes that Kmart is entitled to a new trial on the issue of damages. I. MOTION FOR JUDGMENT AS A MATTER OF LAW Kmart asserts that it is entitled to judgment as a matter of law because there was insufficient evidence presented at trial establishing that the accident caused Constable’s injuries. The Court disagrees. A motion for judgment as a matter of law may be granted only were the moving party has established that "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue[.]" Fed. R. Civ. P. 50 (a) (1). When a defendant moves for judgment as a matter of law, the Court must consider the evidence in the light most favorable to the plaintiff and deny the motion "‘if there is evidence reasonably tending to support the recovery by the plaintiff as to any of its theories of liability.’" V.I. Maritime Serv., Inc. v. P.R. Maritime Shipping Auth, 978 F. Supp. 637, 645 (D.V.1. 1997). In determining whether Kmart has met this burden here, the Court will not judge credibility of witnesses or weigh evidence, but only decide whether after giving Constable every fair and reasonable inference, there was sufficient evidence upon which the jury could reasonably find for her. See Couch v. St. Croix Marine, Inc., 667 F.Supp. 223, 225 (D.V.L. 1987). In the instant case, Kmart apparently concedes that Constable initially suffered symptoms related to a lumbar strain or sprain caused by her fall. Several months after the accident, CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER however, Constable complained of other symptoms that Kmart contends were not caused by the fall. Although Constable’s experts attributed these latter symptoms to the accident, Kmart asserts that there was insufficient evidence supporting the experts’ diagnoses. The Court will address each of these assertions following its presentation of the relevant evidence. Viewed in a light most favorable to Constable, the evidence at trial showed that on September 12, 1995, Constable tripped and fell over a shelf which was lying on the floor while she was shopping at Kmart’s store in Frederiksted, St. Croix. Two days later, Constable visited Dr. Marlon Williams, a chiropractor, complaining of low back pain, left hip pain, left thigh pain, left knee pain and severe back pain resulting from her accident. Dr. Williams performed several tests on Constable and found her suffering from low back spasms on both left and right side, irritation of a nerve root that runs along her low back to her left leg and some involvement of a disc or pressure on the spinal cord. Dr. Williams diagnosed Constable’s symptoms as being caused by a sever lumbosacral sprain or strain. After Constable’s initial visit, Dr. Williams began treating her approximately three times per week. Dr. Williams testified that in November of 1995, Constable "developed symptoms of neck pain, upper back pain [and] headaches."' He stated that it is not unusual for symptoms to spread from the lower back to the upper back and neck because individuals will favor their upper back and neck to compensate for the lower back pain. As a result, Dr. Williams explained, the ' Tr. Vol. If] at 24. CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER upper back and neck "are being overworked." Dr. Williams concluded that these latter symptoms were related to the original Kmart injury. Dr. Sylvia Payne, a medical doctor specializing in electromyography,’ also testified on behalf of Constable. Constable visited Dr. Payne on November 18, 1997 with complaints of neck and back pain which had persisted since the accident in addition to difficulties standing or sitting for long periods. Dr. Payne examined Constable and reviewed her prior medical records and the therapy she received. In reviewing Constable’s medical history, Dr. Payne found she had no problems with her neck or back before the accident. Dr. Payne’s review of the accident report showed that Constable "fell in an axial manner, which means she fell straight down so that the injury was delivered across the spine and the back."* Although Constable’s medical records showed that she initially only suffered back pain from the accident, as stated above, she later complained to Dr. Williams about neck pain. According to Dr. Payne, this “can happen. You can have low back pain that gets worse and spreads . . . [because] the back is a single unit."’ Based on her examination, Dr. Payne concluded that Constable’s cervical problems were "related to the fall"® 2 Tr. Vol. II] at 26. 3 Dr. Payne described electromyographers have specialized knowledge of the nerves and muscles, their sources, functions and what they do in terms of electricity. 4 Tr. Vol. I at 144. 5 Tr. Vol. Il at 144. ® Tr. Vol. Il at 148. CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER Dr. Payne also found that Constable had nerve damage in both her left and right legs which she attributed to the fall. According to Dr. Payne, during the fall, Constable likely had a contusion to the nerve. Dr. Payne testified that the nerve damage would manifest itself with symptoms such as "pain in the back, pain in the leg, weakness of the leg and/or numbness, and/or difficulty with different activities, climbing stairs, sitting for a long time, standing for along time, any combination of those things.’ Finally, Dr. Payne testified that she did not find any evidence that Constable’s symptoms were caused by anything other than the Kmart accident. 1. Dr. Payne’s Alleged Failure to Render Conclusive Diagnosis. Kmart asserts that Dr. Payne never conclusively stated that Constable’s conditions were caused by the accident. The Court disagrees. The above evidence shows that Dr. Payne conclusively attributed each of Constable’s conditions to the accident. Although Kmart’s own expert disputed these conclusions, this Court will neither judge the credibility of the witnesses or weigh the evidence. Accordingly, this assertion has no merit. 2. Dr. Payne’s Alleged Failure to Consider Uterine Tumor as Cause of Symptoms. Kmart asserts that Dr. Payne erroneously failed to consider uterine tumors as the cause of Constable’s symptoms. According to Kmart, Dr. Payne acknowledged that a large uterine tumor could cause symptoms similar to Constable’s, but she did not consider such a tumor as the cause because Constable never informed her that she had two small uterine tumors. Thus, Kmart argues, Dr. Payne was never even provided the opportunity to consider the relative size of the 7 Tr. Vol. I at 193. CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER two tumors and whether they should be excluded as the cause. The transcript shows that when Constable was pregnant, her physician discovered two benign uterine tumors. According to Constable, he told her they were "not very big."® After she delivered the baby, Constable returned to her physician who informed her that "it went back to its normal sizef,] . .. now it’s small."’ During Kmart’s cross-examination of Dr. Payne, counsel asked whether she ruled out a uterine tumor as the cause of Constable’s symptoms. Dr. Payne responded that Constable "had been to the gynecologist and checked out, and she was normal. There is no reason for me to think of a tumor."'° Dr. Payne stated later in her testimony that for a tumor to cause Constable’s symptoms, “it would have to be extensive and spread throughout the whole pelvis and pushing on the nerve. And that’s not the case.""' This evidence, viewed in a light most favorable to Constable, shows that there was no reason for Dr. Payne to consider a uterine tumor as the cause of Constable’s symptoms. Although Constable’s physician found a uterine tumor during one visit, on a subsequent visit the physician stated that "it went back to its normal size."'? Consistent with the latter diagnosis, Dr. Payne stated that Constable’s gynecologist checked her out and she was normal. Thus, as stated by Dr. Payne, there was no reason for her to consider a tumor as the cause of Constable’s ® Tr. Vol. If at 68. 9 Tr. Vol. II at 68. 10 Tr, Vol. If at 186. "Tr. Vol. II at 199. 2 Tr. Vol. IJ at 68. CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER symptoms, which continued after she was diagnosed by her gynecologist as "normal." In any event, it is clear from Dr. Payne’s testimony that the tumors, which were not extensive and had not spread throughout the pelvis, were never of sufficient size to cause Constable’s symptoms. 3. Insufficient Evidence of Right-Sided Nerve Root Entrapment. Kmart asserts that although Dr. Payne concluded that Constable suffered from right-sided nerve root entrapment, the evidence showed that Constable did not exhibit the symptoms of the condition. The Court disagrees. During Kmart’s cross-examination of Dr. Payne, counsel asked the witness to describe the symptoms associated with the condition. Dr. Payne responded: "pain in the back, pain in the leg, weakness of the leg and/or numbness, and/or difficulty with different activities, climbing wt3 stairs, sitting for a long time, standing for a long time, any combination of those things. (Emphasis supplied). Counsel then asked Dr. Payne: "And the pain, if it’s a right $1 nerve, you feel pain in the right leg, correct?"'* Dr. Payne answered affirmatively. Kmart argues that because there was no evidence Constable suffered pain in her right leg, Dr. Payne erroneously concluded she had right S1 nerve damage. Kmart, however, is reading Dr. Payne’s testimony too narrowly. Dr. Payne presented numerous symptoms a person suffering from right-sided nerve root entrapment could experience; leg pain is only one of the symptoms. It is clear from the testimony that a person with the condition might experience other symptoms 3 Tr. Vol. IL at 193. 4 Tr. Vol. I at 193. CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER without leg pain. The evidence at trial showed that Constable suffered from a combination of these other symptoms: back pain and difficulty with prolonged sitting and standing. Thus, the fact that Constable did not suffer right leg pain is inconsequential to Dr. Payne’s diagnosis, and this assertion has no merit. 4. Dr. Williams’ Competency to Diagnose Symptoms. Kmart asserts that the Court should have excluded Dr. Williams’ testimony concerning the cause of Constable’s symptoms and that without his testimony there was insufficient evidence of causation to submit the issue to the jury. According to Kmart, Dr. Williams was incompetent to render a medical opinion because Virgin Islands law prohibits chiropractors from diagnosing muscular injuries and all the evidence in this case showed that Constable’s injuries were muscular. The Court disagrees. In support of its argument, Kmart relies on title 27, section 167a of the Virgin Islands Code which defines the chiropractic practice as "the detecting and correcting by manual means of the structural imbalance, distortion, or subluxations in the human body for the purpose of removing nerve interference and effects thereof, where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column." V.I. Code Ann. tit. 27, § 167a (1997). Notwithstanding this definition, the Legislature expressly defined the limitations of chiropractic practice in section 167k which provides: A license to practice chiropractic shall not permit the holder thereof to treat for any infectious or communicable diseases, any of the cardio-vascular-renal or cardio-pulmonary diseases, any surgical condition of the abdomen such as acute appendicitis or diabetes, or any benign or malignant neoplasms; to perform surgical operations; to reduce fractures or dislocations; to prescribe, administer, CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER dispense or use in his practice drugs or medicines; or to use diagnostic or therapeutic methods involving chemical or biological means; or to utilize therapeutic devices except electrical devices approved by the Board as being essential to the practice of chiropractic; or to sign death certificates; or to advise a patient against the use of a drug prescribed by a licensed physician or dentist. Nothing in this section shall be construed as restricting a licensed chiropractor from utilizing standard laboratory procedures as a means to assist in arriving at a diagnosis of the patient's condition for the purpose of chiropractic treatment. VI. Code Ann. tit. 27, §167k (1997). Although section 167k specifically prevents chiropractors from treating several nonskeletal/structural conditions, it does not prohibit chiropractors from diagnosing muscular injuries. Under these circumstances, the Court finds that Dr. Williams was competent to present his diagnosis and this assertion is without merit. II. MOTION FOR A NEW TRIAL Kmart asserts that it is entitled to a new trial on the issue of liability because the Court erred in admitting certain testimony. Kmart also asserts that it is entitled to a new trial on the issue of damages because, inter alia, Constable failed to produce sufficient evidence for the jury to reduce any award of future damages to present value. Although the Court disagrees with the assertion that it erred in admitting the testimony at issue, there is insufficient evidence of present value calculations and a new trial on the issue of damages is therefore warranted. 1. Admission of Testimony. Motions for a new trial are governed by Rule 59 of the Federal Rules of Civil Procedure. Rule 59 (a) (1) provides that "[a] new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER law in the courts of the United States[.]" Fed. R. Civ. P. 59 (a) (1). When a motion for new trial is premised on a ground that some “‘undesirable or pernicious element has occurred or been introduced into the trial,’” the trial judge "‘necessarily must be allowed wide discretion in granting or refusing a new trial.’". Henry v. Hess Oil V.L. Corp., 33 V.I. 163, 171, 163 F.R.D. 237, 244 (D.V.I. 1995). This is the standard that courts follow when a Rule 59 movant claims that evidence presented at trial was inadmissible. Id. In the instant case, Kmart contends a new trial is required because the Court admitted the testimony of Kimlyn James, Isidro Rodriguez and Rosie McKay. James and Rodriguez were Kmart loss control employees at the time of the accident and McKay was an expert in safety engineering. James and Rodriguez testified about Kmart’s policies and practices of inspecting the store for dangerous conditions. McKay testified about Kmart’s violations of various safety regulations, primarily those enacted pursuant to the Occupational Safety and Health Act ("OSHA"). Kmart argues that it essentially admitted it was negligent in its opening statements to the jury and that this testimony was therefore unnecessary and unduly prejudicial. The Court disagrees. Constable had the burden of establishing Kmart’s liability for her injuries by showing that Kmart knew or by the exercise of reasonable care would have discovered the condition that caused her fall and that it involved an unreasonable risk of harm to her. Restatement (Second) of Torts §343 (a) (1965). In addition, Constable was required to show that Kmart should have expected that she would not discover or realize the danger presented by the condition or that she would fail to protect herself against the condition. Id. at §343 (b). Even if Kmart admitted CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER liability in its opening statement, this was not evidence and the jury was instructed accordingly. Thus, Constable was still required to present evidence establishing liability and the testimony of Kmart’s employees concerning the store’s inspection practices was relevant to the issue of whether Kmart exercised reasonable care in discovering the condition. The testimony of Constable’s expert safety engineer was likewise relevant to establish violations of the applicable standard of care. And, although Constable was not a Kmart employee, the admission of McKay’s testimony concerning OSHA standards was not erroneous. The fact that a legislative enactment requires a particular act to be done for the protection of the interests of a particular class of individuals does not preclude the possibility that, .. . in a proper case, the requirements of the statute may be considered as evidence bearing on the reasonableness of the actor’s conduct. Restatement (Second) of Torts § 286, cmt. g (1965). The Restatement elaborates: This is true particularly where the provision in question prescribes standard precautions for a purpose other than the protection of the person who is injured, or for protection against a hazard other than that from which the harm has resulted. The fact that such precautions have been prescribed for another purpose may be a relevant fact for the consideration of the triers of fact, as indicating that a reasonable man would have taken the same precautions in the particular case. Id. at § 288B, cmt. d. The Third Circuit has adopted a similar view towards the admissibility of legislative enactments under similar circumstances. See Rolick v. Collins Pine Co., 975 F.2d 1009 (3d Cir. 1992). In Rolick, the court said: We can think of no reason under the Federal Rules of Evidence why the OSHA regulation is not relevant evidence of the standard of care once it is determined, as we have done, that under [state law] the defendants could owe plaintiff a duty of care. It is important to reiterate that to use the OSHA regulation as evidence here is not to apply the OSHA itself to this case. Rather, it is to ‘borrow’ the OSHA regulation for use as evidence of the standard of care owed to plaintiff. CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER Id, at 1014.'* See also Encarnacion v. Kmart Corp., Civ. No. 1997-063, Order (D.V.I. St. Croix Div. July 14, 1999) (ruling that evidence of OSHA standards was relevant even though plaintiff was not an employee of defendant at time of accident). But see Saldana v. Kmart Corp., 84 F.Supp.2d 629, 634 (D.V.I. 1999) (ruling that evidence of OSHA standards is irrelevant and inadmissible where plaintiff was not an employee of Kmart at time of accident). Notwithstanding the court’s decision in Saldana, in light of the applicable Restatement comments and the Third Circuit’s opinion in Rolick, the Court concludes that it did not err in permitting evidence of OSHA standards to assist the jurors in determining whether Kmart’s conduct was reasonable. 2. Reduction to Present Value In support of her claim for damages, Constable presented evidence showing that, because of her injuries, she will be unable to perform future housekeeping and childcare tasks. In its Motion for New Trial on damages, Kmart asserts, among other challenges, that Constable presented insufficient evidence to guide the jury in determining how to reduce future damages to present value. The Court agrees. To assist the jury in computing the value of her future damages, Constable presented the testimony of an expert economist, Dr. Bernard Pettingill. Dr. Pettingill first testified concerning Constable’s damages for loss of ability to perform housekeeping chores, which he stated includes 5 The Federal Rules of Evidence are applicable in proceedings before the Territorial Court, to the extent they are not inconsistent with the Rules of the Territorial Court. Terr. Ct. R. 7, 12. CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER "services inside the house, services outside the house, and services for the baby, the child, until the child would reach age five."'® To establish the future value of future services, Dr. Pettingill stated he would consider what services Constable could not perform due to the accident, the number of hours Constable previously performed those services annually and the hourly cost of the services. In addition, Dr. Pettingill testified that he would consider "Ms. Constable’s life expectancy, but adjust it down a few years because after about age 70, she is going to need help with heavy services. She is 30 years of age today, at 70 would give us 40 years of services.""” Finally, Dr. Pettingill stated after the total value of the future services is established, the jury needed to reduce the amount to a present value. Specifically, Dr. Pettingill stated: "{i]f the jury was to award some amount of money today the money could be invested. In other words, she can go to the bank and purchase some government bonds or government notes and the yields on those notes or the interest on those notes balance around 5 percent today.""* Dr. Pettingill then gave several examples of how to calculate the present value of the future cost of housekeeping assistance and child care services. After it was determined that Dr. Pettingill’s examples contained erroneous calculations, the example testimony was stricken and the Court instructed the jury to disregard the testimony. During cross-examination, however, Kmart’s counsel asked Dr. Pettingill to present the formula he used to establish the present value of Constable’s future damages, and Dr. Pettingill responded: "[fjuture formula is the number of 16 Ty, Vol. I] at 110. 17 Tr, Vol. ITI at 124. 8 Tr. Vol. WI at 125 CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER years, times the costs, again, times the hours and because we discounted the present value, we reduced it to 25 percent times .75 would give us the present value."” This evidence did not provide the jury with sufficient guidance to determine the present value of Constable’s future damages. Both the United States Supreme Court and the Third Circuit have recognized the complex nature of present value calculations and the resulting difficulties juries face computing future damages. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983); Ballantine v. Central R. of N.J., 460 F.2d 540, 544 (3rd Cir. 1972). In Ballantine, the Third Circuit found that "{t]he application of the present worth rule is generally conceded to be beyond the understanding and capabilities of most lay persons serving on juries. At the very least, it is a tedious and laborious task. The involved process of reducing future losses to present worth has, undoubtedly, led to confusion and guesswork verdicts. Reason, logic and fairness would, therefore, dictate that enlightenment is necessary." Id. at 543. “Jurors [are] entitled to receive evidence and appropriate mathematical guidance with respect to these matters if they [are] to act rationally and not upon mere conjecture and guess.” Id. (Citing Russell v. City of Wildwood, 428 F.2d 1176 (3rd Cir.1970). In this case, the evidence concerning the calculations of present value was very limited and confusing. When Dr. Pettingill initially testified concerning present value calculations, he merely attempted to explain the concept that future damages needed to be reduced to a present value because Constable could invest an award and earn five percent interest on that investment. "9 Tr. Vol. Hl at 137. CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER This testimony did not inform the jurors what calculations they needed to perform to discount the future damages in accounting for the five percent interest. In his only other attempt to explain the formula he used to calculate present value, Dr. Pettingill stated "we discounted the present value, we reduced it to 25 percent times .75 would give us the present value."”° It is unclear from this testimony whether the jury was instructed to reduce the future damages by 25 percent and then multiply that figure by .75, or whether Dr. Pettingill was being redundant when he referred to the 25 percent reduction and the .75 multiplier. Assuming that Dr. Pettingill intended to inform the jurors that they should merely reduce the future award by 25 percent, it is unclear from his testimony whether they should apply this same discount rate regardless of the term for which they are awarding future damages. Under the evidence presented, the jury was left to speculate about the use of this discount rate. For example, the jury was left to speculate whether an award for 40 years of future housekeeping services is discounted at the same rate as an award for five years of future childcare services. Furthermore, there is no testimony explaining how these discounts relate to the five percent projected interest Dr. Pettingill testified Constable could earn from investing an award. Thus, the jury had to guess whether the 25 percent discount accounted for a five percent return on an investment and what discount to apply if they found Constable would earn a different rate of return. These are factual issues that cannot be answered by resort to Plaintiff's evidence. Accordingly, the jury was left to speculate concerning what are unquestionably complex calculations involving rates of return, life expectancy and discounts. 20 Tr. Vol. III at 137. CONSTABLE v. KMART CORP. Civ. No. 936/1995 OPINION AND ORDER Under these Circumstances, Kmart is entitled to a new trial on the issue of damages. Ballantine v. Central R. of N.J., 460 F.2d at 544; Russell, 428 F.2d at 1180-81. CONCLUSION After a careful review of the trial proceedings and the evidence presented in this case, the Court concludes that Kmart is not entitled to judgment as a matter of law, but is entitled to a new trial on the issue of damages. Although there was sufficient evidence for the jury to find that the accident caused Constable's injuries. Constable failed to provide the jury with sufficient guidance concerning its reduction of future damages to present value. Accordingly, the jury was left to speculate concerning its award of future damages and a new trial is in order. The court does not reach at this time the other issues raised by Kmart, but will address such matters on motion prior to retrial. The case wil] be scheduled for a new trial on the issue of damages at the earliest available trial date. x i, : Ie a M. CABRET { Territorial Courtd udge ATTEST: