White Consolidated Industries, Inc. v. Billy Ray Thompson

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

CA00-945

April 25, 2001

WHITE CONSOLIDATED

INDUSTRIES, INC.

APPELLANT AN APPEAL FROM DREW COUNTY

CIRCUIT COURT

V. NO. CIV99-56-3

HONORABLE BYNUM GIBSON

BILLY RAY THOMPSON CIRCUIT JUDGE

APPELLEE

AFFIRMED

This is a negligence case involving a Poulan gas-powered lawn trimmer designed by appellant. Appellee Billy Ray Thompson sustained injuries in 1996 while using the trimmer. He sued appellant for negligent design, seeking damages for medical expenses, lost wages, pain and suffering, permanent scarring, and loss of earning capacity. The jury agreed that appellant had negligently designed the trimmer and awarded appellee $166,803. On appeal, appellant contends that 1) the trial judge erred in allowing appellee's expert to offer certain opinions at trial; 2) the trial judge erred in instructing the jury on loss of future earning capacity; and 3) the verdict was excessive. We find no error on any of these points and therefore affirm.

The accident in which appellee was injured occurred on June 6, 1996. He was weedeating around his property with a Poulan trimmer when it came apart in his hands. When the unit separated, the clutch shoes were ejected from the machine and struck appellee, seriously injuring his ankles. John Morse, a mechanical engineer hired by appellee, issued a preliminary report in 1997 stating that the trimmer was defective because it was designed in such a way that, if the trimmer sections separated while the machine was running, the clutch shoes, which are part of a centrifugal clutch mechanism, became exposed and unrestrained, thus allowing them to be ejected from the machine. Morse also stated in his report that "the initial event was the failure of the screws holding the two main sections of the unit together."

Morse was named as appellee's expert witness prior to trial. In his deposition taken on February 3, 2000, eleven days before trial, he restated his opinion that the trimmer was defective because the clutch shoes were not restrained in any way. He said that he did not know, however, what caused the trimmer to come apart. The night before trial though, Morse developed the opinion that the unit came apart because the screw-holes for the screws holding the unit together were stripped. Over appellant's objection, Morse was allowed to offer that testimony at trial. Appellant's first argument on appeal is that the trial court erred in allowing Morse to so testify because that opinion was not provided during pretrial discovery.

A party who has responded to a request for discovery with a response that was complete when made is under a duty to seasonably supplement his response with respect to the subject matter on which an expert is expected to testify and the substance of the expert'stestimony. See Ark. R. Civ. P. 26(e)(1). A trial court's decision to allow supplementation of a discovery response is reviewed under the abuse-of-discretion standard. See generally Dunlap v. Buchanan, 293 Ark. 179, 735 S.W.2d 705 (1987).

Prior to trial, appellant's counsel became aware that Morse would testify that the machine came apart due to defective screw-holes. Although the in-chambers hearing on this matter is not contained in the record, we are able to determine from the context of other colloquies that appellant initially objected to Morse's proposed testimony. The trial court decided to allow Morse to testify regarding the stripped screw-holes on rebuttal and to allow appellant the opportunity for surrebuttal. The record does not indicate whether appellant agreed or disagreed with that ruling.

On direct exam, Morse offered only his opinion that the trimmer's design was negligent for the following reason:

[T]he clutch shoes are not retained in any way. And it's obvious that if the unit comes apart, for whatever reason...those shoes are going to come out of there.

He did not mention his theory as to why the trimmer came apart. On cross-examination, however, in response to appellant's questioning, the subject of whether Morse knew why the unit came apart was broached:

Q: At the time of your report and your deposition you did not know what caused the clutch shroud to become removed from the rest of the facing, correct?

A: That's correct.

Q: All right. And you've not offered any opinion today as to what caused the unit to open up, correct?

A: That's correct.

....

Q: Did you determine in your initial report that there was anything defective about these screws?

A: No.

Q: And you're not offering any opinion today that there is a defective screw here?

A: That's correct.

Thus, to this point, Morse had not offered an opinion as to why the trimmer came apart. Yet, upon further questioning by appellant, he said the following:

Q: But you do not know what caused [the separation of the clutch shroud from the unit]?

A: As of right now?

Q: Right.

A: Yes.

Q: When you gave your testimony under oath February 3rd, did you tell me `I do not know what caused the driven face of the clutch to become removed?'

A: That's correct.

Q: All right. And did you also say you do not know why the screws failed to hold it together?

A: At that time, yes.

Q: And did you meet with plaintiff's counsel yesterday and decide, `I've got to come up with some explanation for why this unit separated?'

At this point appellee objected to the argumentative nature of the exchange, and another line of questioning was pursued.

On redirect, appellee's counsel began his examination of Morse by stating, "we were going to get into this on rebuttal but since it was brought up during cross, I'll go ahead and get into it now." Appellant, knowing that Morse was about to testify regarding the stripped screw-holes, objected. The trial court resolved the issue by allowing Morse to offer his opinion regarding the screw-holes on redirect and allowing appellant to rebut them on recross. Thus, on redirect, Morse testified that, upon closer examination of the screw-holes in the starter housing, he determined that they were stripped. Appellant's counsel questioned Morse about his opinion on re-cross, and appellant's expert, who was seated in the courtroom during Morse's testimony, subsequently offered his opinion that Morse's theory was incorrect.

We hold that the trial court did not abuse its discretion in allowing Morse's testimony. In Morse's initial report, prepared over two years before trial, he stated that, "It is also a known fact that screws can be stripped or otherwise damaged and have only a fraction of their design holding strength.... In the Poulan Weedeater trimmer, one possible hazard mode is failure of the main unit retaining screws." In light of that language, it should not have come as a total surprise to appellant that Morse was of the opinion that the screws holding the unit together failed due to stripping. Additionally, appellant's expert heard Morse's testimony as it was given, and there is no showing that his rebuttal of the testimony was impaired. We also note that the manner in which appellant developed its cross-examination of Morse virtually invited Morse to testify about his "new" opinion on redirect rather thanrebuttal. Appellant asked Morse numerous times if he had formed an opinion about what caused the unit to come apart. When Morse finally answered, in response to questioning, that he had now formed such an opinion, appellant intimated that the opinion was fabricated the night before trial. In that situation, we cannot say that the trial judge abused his discretion in allowing Morse to proceed with his testimony.

The second issue on appeal is whether the trial judge erred in instructing the jury that it could award appellee damages for loss of future earning capacity. A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in evidence to support the giving of it. See Pettus v. McDonald, 343 Ark. 507, 36 S.W.3d 745 (2001). Loss of earning capacity is the loss of the ability to earn in the future. See Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). A serious or permanent injury may sustain the submission of the issue of loss of earning capacity to the jury. Id. Proof of the impairment of the capacity to earn does not, however, require the same specificity or detail as does proof of loss of future wages. Id. The reason is that the jury can observe the appearance of the plaintiff, his age, and the nature of the injuries that will impair his capacity to earn. Id.

The evidence in this case showed that appellee sustained serious, debilitating injuries to both ankles as a result of the accident. According to him, he had permanent nerve damage to both ankles. Although he has tried to return to work, he is unable to do any type of work that requires him to stand. At the time of trial, he was still receiving pain injections, had difficulty standing up, and still had to wear a brace on his right ankle. Such evidence is sufficient to show serious or permanent injury and therefore sufficient to support the giving of a jury instruction on the element of loss of earning capacity.

The final issue concerns appellant's argument that the $166,803 verdict awarded by the jury was excessive. When an award of damages is alleged on appeal to be excessive, we review the proof and all reasonable inferences therefrom in a light most favorable to the appellee and determine whether the verdict is so great as to shock our conscience or demonstrate passion or prejudice on the part of the jury. See Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999). In determining whether the amount of damages is so great as to shock the conscience, we consider such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Builder's Transp., Inc. v. Wilson, 323 Ark. 327, 914 S.W.2d 742 (1996). The determination is made on a case-by-case basis with the understanding that a jury has much discretion in awarding damages in personal injury cases. Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997).

Appellant argues that the damages awarded were excessive in light of the fact that appellee proved only about $18,000 in out-of-pocket expenses. However, appellee, who was a healthy twenty-seven-year-old man at the time of the accident, was unable to walk unassisted for fourteen weeks after the accident. He was in a wheelchair for seven of those weeks. He underwent surgery and suffered great pain both after surgery and during rehabilitation. He still suffered pain over three years later at trial. Further, he was unable to pursue recreational activities and unable to find the kind of work he had previously performed. In light of these facts, we are not shocked at the jury's award.

Affirmed.

Stroud, C.J., and Roaf, J., agree.