$255,383 Judgment for Hot Springs Shopper Who Slipped on Freshly Mopped Kroger Floor and Hurt Her Back
After trial: The jury awarded $260,961.67, and the district court reduced it by medical expenses Kroger had already paid, for a final judgment of $255,382.67. Kroger appealed on the admission of chiropractic causation testimony and a jury instruction, and the Eighth Circuit affirmed on August 4, 2003.
Won by McMath Woods and McMath Woods P.A..
Donna Kudabeck slipped on a recently mopped aisle at a Kroger grocery store in Hot Springs, Arkansas, in April 1995 and fell on the base of her spine. A federal jury found Kroger negligent after a one-day trial and awarded her $260,961.67. The district court entered judgment for $255,382.67 in May 2002 after crediting medical bills Kroger had already paid, and the Eighth Circuit affirmed on August 4, 2003.
What happened
At about 11:00 p.m. on April 13, 1995, Donna Kudabeck, then 44, was shopping with her daughter at a Kroger store in Hot Springs, Arkansas. Walking down an aisle, her legs went out from under her and she landed on the base of her spine. Afterward, she and her daughter noticed that the floor had recently been mopped. They saw no wet floor signs in the area.
She did not go to an emergency room, but a week later the pain had not eased and she saw a chiropractor, Dr. Brian Reilly. His x-rays showed problems in her lumbar and cervical vertebrae, and he tied her pain to the fall. When months of treatment brought little improvement, he referred her to a neurologist, Dr. Paul Tucker. In February 1996 an MRI showed possible disc herniations in her neck and problems in her lower spine, and Dr. Tucker found surprising weakness in all of her major muscle groups. By July 1996 his notes described her as severely handicapped and unable to do much of anything. He treated her until at least November 1998.
The case was not simple on causation. A neurosurgeon, Dr. Steve Cathey, diagnosed advanced degenerative disc disease and arthritis of the spine, conditions Kroger did not dispute she had. Kroger's position was that the fall did not cause her symptoms. Dr. Cathey testified by videotaped deposition that the fall aggravated those existing conditions in her neck, middle back and lower back and set her symptoms in motion.
Kudabeck sued Kroger in the Western District of Arkansas in November 2000, and her husband, Steven, joined with a claim for loss of consortium. Before trial, Kroger asked the court to bar Dr. Reilly's causation testimony as unreliable. U.S. District Judge Robert T. Dawson ruled it admissible if properly grounded, and at trial he let Dr. Reilly testify with limits: no reading of the MRI and no reliance on other doctors' reports. After one day of testimony, the jury found that Kroger acted negligently and that its negligence caused Kudabeck's damages. It awarded her $260,961.67, rejecting much of what her lawyers had asked for in closing, and found against Steven on his consortium claim. The court then subtracted the medical expenses Kroger had already paid, producing a final judgment of $255,382.67. The court's docket shows the case closed on May 23, 2002.
Kroger appealed on two points: that Dr. Reilly should not have been allowed to testify on causation, and that the jury should have been given extra language limiting damages for pain she would have had without the accident. Paul E. Harrison argued the appeal for Donna Kudabeck, with Charles D. Harrison on the brief. In an opinion by Judge Bright, joined by Chief Judge Hansen and Judge Smith, the Eighth Circuit rejected both arguments and affirmed on August 4, 2003. The panel noted that Kroger had called no medical expert of its own and offered no evidence to support the added instruction, and that the evidence showed she had been in extremely good health with no symptoms before the fall.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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