Third Circuit denies appeal motion for new trial in Marshalls slip-and-fall

By Nicholas Malfitano | Apr 6, 2016

TJX Companies  

PHILADELPHIA – Appellants seeking a new trial for recovery of damages connected to a slip-and-fall accident in a Marshalls department store have been denied that opportunity.

On behalf of colleagues Theodore A. McKee and Kent A. Jordan, Judge Thomas I. Vanaskie of the U.S. Court of Appeals for the Third Circuit ruled March 15 that Marie and Alex Arnez would not receive a new trial against the TJX Companies and Marmaxx Operating Corp.

The Arnezes contended the jury’s verdict was “inadequate and its failure to award pain and suffering damages was against the weight of the evidence, requiring a new trial”, and further contended the District Court “erred in admitting the testimony of a defense biomechanics expert.”

On Jan. 8, 2011, while shopping in a Marshalls department store in Bethlehem, owned and operated by the appellees, Marie Arnez tripped and fell over an empty flatbed cart. Marie reported the injury to a store manager, but walked out of the store without assistance or requesting medical treatment.

Marie claimed to suffer a series of injuries due to the fall, including ones to her neck, both hands, wrists, shoulders, right knee, right ankle, and her low and mid-back, but did not seek treatment until more than a week later, when she went to a chiropractor on Jan. 19, 2011. Thereafter, Marie treated regularly with the chiropractor and underwent several other forms of therapy for her physical and psychological injuries.

The Arnezes’ lawsuit was initially filed in the Philadelphia County Court of Common Pleas, but removed to the U.S. District Court for the Eastern District of Pennsylvania for reasons of diversity jurisdiction.

The Arnezes filed a motion in limine to exclude certain portions of the testimony and report of the appellees’ biomechanics expert, Dr. Kirk L. Thibault, but the District Court denied the motion after a lengthy hearing.

At trial, the appellees admitted the flatbed cart was a trip hazard they should have removed prior to the accident, but contended Marie was also comparatively negligent in failing to see and avoid tripping on the cart and provided medical experts who argued the severity of her injuries was exaggerated.

The jury found that appellees and Marie equally shared fault and awarded $5,000 in medical expenses. The jury declined to award Marie any money for pain and suffering, embarrassment and humiliation, loss of enjoyment of life, and disfigurement. The jury also declined to award Alex Arnez any money for loss of consortium, then the District Court then entered judgment for appellants in the amount of $2,500.

The Arnezes motioned for a new trial on damages on the rationale that “the jury verdict was against the weight of the evidence, and the appellees’ biomechanical expert was improperly permitted to testify as to his biomechanical analysis and areas of medical opinion testimony beyond his qualifications, and that his testimony prejudiced their case.”

The District Court denied the motion for a new trial on Dec. 18, 2014, and the Arnezes appealed this decision. The Third Circuit first turned their view to the issue of damages.

“After reviewing the evidence, the jury awarded only $5,000 in medical expenses, far less than the $45,000 claimed by the appellants. It is evident that the jury doubted Marie’s credibility as to the extent or causation of her injuries,” Vanaskie said. “The jury had a reasonable basis for finding that Marie did not suffer any compensable pain, and the District Court did not abuse its discretion in denying a new trial on the issue of damages.”

As to Thibault’s testimony, Vanaskie felt the Arnezes did not illustrate how they were maligned by his testimony.

“Regardless of whether or not Thibault’s testimony was properly admitted, appellants failed to show that they were prejudiced by his testimony,” Vanaskie said.

Vanaskie added, “Based on the volume of evidence the jury had to consider, the jury’s award showing that it credited at least some of Marie’s medical expenses, and appellants’ inability to point to anything on the record suggesting that Thibault’s testimony prejudiced them, we find that the District Court’s holding that appellants failed to meet the burden of showing that Thibault’s testimony prejudiced their case was not an abuse of discretion.”

The appellants are represented by Charles Jay Schleifer, James C. Haggerty and Scott J. Schleifer of Haggerty Goldberg Schleifer & Kupersmith, in Philadelphia.

The appellees are represented by Mark Allen Lockett and Kevin Monastra of Bonner Kiernan Trebach & Crociata, also in Philadelphia.

U.S. Court of Appeals for the Third Circuit 14-4828

U.S. District Court for the Eastern District of Pennsylvania case 5:13-cv-02548

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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