A Territorial Court judge has ordered a new trial in the case of a woman who tripped and fell in the Frederiksted Kmart in 1995 and was awarded $2.9 million in damages.
Last week, Judge Maria Cabret denied two motions filed by Kmart lawyers concerning sufficiency of evidence, but granted a third calling for a new trial on the issue of damages. Cabret said the evidence given by an expert witness, economist Dr. Bernard Pettingill, concerning the plaintiff's loss of future earnings had been "very limited and confusing."
In 1995 the plaintiff, Annette Constable, then 30 years old, was shopping in the Frederiksted Kmart when she tripped and fell over a shelf left lying on the floor. Constable’s lawyer, Lee Rohn, argued in court that her client had developed neck pain, upper-back pain and headaches as a result of the fall and that the injuries would keep her from work as a housekeeper and in child care.
After four days of testimony in the 1998 trial, the jury awarded Constable $2,937,772 in damages.
In seeking a new trial, Kmart, represented by the Christiansted firm of Bryant, Barnes and Simpson, argued that Rohn presented insufficient evidence to guide the jury in determining the amount of damages. Rohn was off island Tuesday and unavailable for comment.
In her order, Cabret referred to a Third Circuit Court of Appeals decision which said that "the application of the present-worth rule is generally conceded to be beyond the understanding and capabilities of most lay persons serving on juries… The involved process of reducing future losses to present worth has, undoubtedly, led to confusion and guesswork verdicts."
Because of the factual issues not answered by Constable’s expert witness, Cabret said "the jury was left to speculate concerning what are unquestionably complex calculations involving rates of return, life expectancy and discounts.
"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… and a new trial is in order."
Cabret said the case will be scheduled for a new trial at the earliest available trial date.