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Perry v. Winn-Dixie Stores2/28/2002
This lawsuit was filed by Robert Perry ("Plaintiff") against Winn-Dixie Stores, Inc. ("Defendant"). The Trial Court excluded the testimony of Plaintiff's treating physician, presented by deposition at trial, pertaining to expenses for medical treatment provided by other physicians. The basis for this ruling was lack of a proper foundation. Plaintiff claims Defendant's trial objection to lack of proper foundation was waived because it was not made during the doctor's deposition. After the jury returned its verdict, the parties continued to negotiate a settlement in lieu of Plaintiff's filing an appeal. The amount of the judgment, $15,300.00 after the verdict was reduced pursuant to comparative fault principles, was deposited by Defendant's counsel with the Trial Court and later withdrawn by Plaintiff's counsel. After the original defense attorney moved out of state and the case was assigned to new defense counsel, Defendant offered and Plaintiff accepted $20,000.00 in full and final settlement of the claim. A disagreement later arose as to whether this settlement offer was $20,000.00 in "new money" or whether it included the $15,300.00 already paid by Plaintiff. Plaintiff filed a motion to enforce the settlement agreement claiming he was offered and accepted $20,000.00 in "new money." The Trial Court denied enforcement after concluding, among other things, that there was no meeting of the minds. Plaintiff appeals the evidentiary ruling excluding portions of his medical expenses, as well as the denial of his motion to enforce the settlement agreement. We affirm on both issues.
Tenn. R. App. P. 3 Appeal As of Right; Judgment of the Circuit Court Affirmed; Case Remanded.
D. Michael Swiney, J., delivered the opinion of the court, in which Houston M. Goddard, P.J., and Charles D. Susano, Jr., J., joined.
OPINION
Background
This lawsuit arises from Plaintiff's fall in Defendant's store which resulted in personal injury to Plaintiff. There are two issues on appeal. The first issue as stated by Plaintiff is whether the Trial Court erred "in excluding nearly half of the Plaintiff's medical expense evidence by sustaining an objection based on improper foundation which was not made at the deposition taken for proof?" The second issue involves whether a post-trial offer of settlement made by Defendant's counsel is enforceable in accordance with Plaintiff's understanding of the terms of that offer.
While discovery was proceeding and well before trial, Plaintiff served a Notice of Medical, Hospital, or Doctor Bills on Defendant seeking to rely on the presumption created by Tenn. Code Ann. § 24-5-113. The medical bills itemized in this Notice totaled $19,449.22. Defendant responded to the Notice, stating that it was "unclear to defendant whether all of these medical bills are causally related to plaintiff's fall" at the store. According to Defendant, the deposition of Dr. Stephen Natelson cast doubt on whether certain medical treatment was casually related to the accident. Plaintiff later filed a Request to Admit seeking Defendant's admission that all of Plaintiff's medical bills were related to the claimed injury. Defendant generally denied that these medical bills were causally related to the injury.
Approximately 1½ months prior to the trial, Dr. Steven Weissfeld ("Weissfeld") was deposed. The parties stipulated at the beginning of the deposition that: "All objections except to the form of the questions are reserved to on or before the hearing." As pertinent to this appeal, Weissfeld acknowledged that Plaintiff had been treated by other physicians after falling at Defendant's store, including Dr. Mardini, Dr. Natelson, Dr. Fardon, Dr. N
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