In this personal injury action, the plaintiff, William R. Stripling, alleged that he received cuts to the inside of his mouth and throat while drinking Coca-Cola Classic from a 20-ounce glass bottle. Stripling alleged that these cuts were caused by glass fragments inside the bottle.
Stripling sued Coca-Cola Bottling Company United, Inc., the bottler; and Anchor Glass Container Corporation, the manufacturer of the glass bottle,
The case was tried before a jury, and after Stripling had presented his evidence, Coca-Cola moved for a directed verdict. This motion was denied. Subsequently, the jury returned a general verdict in favor of Anchor Glass, but against Coca-Cola for compensatory damages of $1 and punitive damages of $34,000, apparently based on a finding that Coca-Cola had been guilty of wanton conduct. Coca-Cola subsequently filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial or a remittitur. Stripling also filed a motion for a new trial against both defendants.
The trial court, after being presented evidence that the jury had returned a quotient verdict against Coca-Cola, granted Coca-Cola's motion for a new trial as to all claims asserted by Stripling against Coca-Cola. The trial court denied Coca-Cola's motion for J.N.O.V., as well as Stripling's motion for a new trial against Anchor Glass.
Coca-Cola appeals the denial of its J.N.O.V. on the wantonness claim. Stripling cross appeals from the denial of a new trial on his claims against Anchor Glass.
We first address Stripling's argument that Coca-Cola's appeal from the denial of its J.N.O.V. motion is premature. We do not agree with Stripling's argument. This Court, in John Crane-Houdaille, Inc. v. Lucas, 534 So.2d 1070 (Ala. 1988), addressed the question of the finality of an order denying a J.N.O.V. when the trial court grants a new trial:
534 So.2d at 1075.
Having resolved the question of Coca-Cola's right to appeal the denial of its motion for J.N.O.V., we now address Coca-Cola's argument that Stripling did not present "clear and convincing evidence"
The standard applied on this Court's review of an order denying a motion for J.N.O.V. is the same standard used on review of an order granting or denying a motion for a directed verdict. Griggs v. Finley, 565 So.2d 154, 159 (Ala.1990). "Granting a motion for JNOV is proper `only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ' and the moving party is entitled to judgment as a matter of law." Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162, (Ala. 1988), quoting Deaton, Inc. v. Burroughs, 456 So.2d 771 (Ala.1984).
The Legislature, in Ala.Code 1975, § 6-11-20(b)(3), has defined "wantonness" as "[c]onduct which is carried on with a reckless disregard of the rights or safety of others." This definition of "wantonness" is similar to what this Court said in Lynn Strickland Sales & Serv., Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142, 145 (Ala. 1987), where the Court emphasized that wantonness requires some degree of consciousness on the part of the defendant that injury is likely to result from an act or omission, and stressed that
(Emphasis in McNeil.) See also Central Alabama Elec. Co-op. v. Tapley, 546 So.2d 371 (Ala.1989).
After a thorough review of the record, we hold that the trial court erred in denying Coca-Cola's motion for J.N.O.V. on Stripling's claim of wantonness. Stripling failed to offer clear and convincing evidence that Coca-Cola acted with reckless or conscious disregard of the rights and safety of persons like Stripling.
In his brief, Stripling argues that the issue of wantonness was properly presented to the jury:
(Appellee's brief at 22-23.)
While Stripling places great emphasis on the fact that the jury sat through more than three days of testimony and on his argument that it could "see through" the evidence presented in favor of Coca-Cola, this alone is insufficient to support Stripling's claim of wantonness on the part of Coca-Cola.
Employees of Coca-Cola testified that Coca-Cola's bottling and distribution process were "state of the art" in the bottling industry. Stripling presented no evidence to dispute this testimony. Furthermore, none of these employees testified as to any
An employee of Coca-Cola testified that the Birmingham, Alabama, bottling facility produces approximately 17 million bottles of Coca-Cola products a year. Testimony also indicated that the standard in the industry is one bottle failure on the line per 10,000 bottles. When a bottle does break on the line, Coca-Cola has a procedure whereby the line is stopped and three bottles ahead of the breakage and six bottles behind the breakage are removed from the line and disposed of.
As for the "protective sensors" referred to by Stripling in his brief, he offered no evidence that such sensors were necessary or readily available for use in this particular high-speed bottling process. In addition, Stripling offered no evidence that Coca-Cola had any knowledge of glass getting into bottles that were reaching consumers and he offered no evidence that other consumers had ingested glass from bottles filled at Coca-Cola's plant. Finally, Stripling offered no evidence by expert or by literature, or otherwise, that any method utilized in the bottling process, or the absence of any particular method, was inappropriate or was known to create a hazard to consumers.
While there was evidence of injury to Stripling, the jury initially returned a verdict of $0 compensatory damages, and it changed its verdict to $1 only after the trial judge told the jurors they would have to find at least nominal damages in order to award punitive damages.
Because the plaintiff Stripling failed to present clear and convincing evidence that Coca-Cola was guilty of wantonness, the trial erred in denying Coca-Cola's motion for J.N.O.V. on the wantonness claim. Accordingly, as to that claim, the judgment is due to be reversed and the cause remanded for an order or proceedings consistent with this opinion.
II. Stripling's Motion for a New Trial as to Claims Against Anchor Glass
We now address the plaintiff Stripling's cross appeal from the denial of his motion for a new trial against Anchor Glass.
Stripling first argues that the granting of a new trial to the defendant Coca-Cola requires that Stripling be granted a new trial against Anchor Glass. That argument is not supported by the law. Rule 59(a), Ala.R.Civ.P., states that "[a] new trial may be granted to all or any of the parties." Furthermore, in Trimble v. Bramco Products, Inc., 351 So.2d 1357, 1359 (Ala.1977), this Court stated the general rule: "Under Alabama practice, it has long been permissible in proper cases to grant a new trial as to one or more defendants and deny a new trial motion as to the others." As the Trimble Court further stated:
"It would be manifestly unfair to require [the defendant in whose favor the jury had found] to defend the suit
351 So.2d at 1360.
This case was tried to a jury, which found that Anchor was not liable under any theory advanced against it by the plaintiff. Stripling offered no proof concerning the source of the glass fragments that were found in the bottle in question. Conversely, Anchor offered testimony that the glass fragments were probably not from glass being manufactured by Anchor at the time the bottle was made. Additionally, the parties stipulated that at the time of the incident the bottle was completely intact, with no cracks, chips, or other damage. The jury could logically have inferred that any chips of glass found in the bottle had no connection with Anchor, and the jury evidently did just that. After a jury verdict, when the trial court denies a motion for a new trial, this Court, upon appellate review, does not, and should not, disturb the verdict "unless it is plainly erroneous or manifestly unjust." Williamson v. United Farm Agency, Inc., 401 So.2d 759, 763 (Ala.1981). We cannot find this verdict "plainly erroneous or manifestly unjust."
Stripling next argues that he is entitled to a new trial against Anchor Glass because, he says, the trial court erred by excluding Stripling's rebuttal expert on the basis that Stripling had not disclosed the existence of the expert.
On August 28, 1991, after a hearing on the employment of experts to examine the bottle in question, the trial court entered a scheduling order, which stated in part:
"(5) That, by January 15, 1992, plaintiff shall disclose to defendants any and all expert witnesses to be used at trial."
Anchor elected to have an employee, Keith Painter, examine the bottle and the glass fragments inside the bottle. More specifically, Mr. Painter took two fragments found inside the bottle for further testing. On February 6, 1992, Anchor produced a "Product Liability Examination" report, which contained an analysis of the density of the glass fragments. This report was received by Stripling on February 20, 1992.
On April 2 or 3, 1992, Stripling received a "Supplemental Report" from Anchor Glass. This report was dated March 25, 1992, and it compared the differences in the density of the glass fragments and that of the bottle and concluded that "[the] large difference in values reduces greatly any consideration on our part the fragments in question are of Anchor Glass Container origin."
On April 13, 1992, immediately before the trial, Stripling, in effect, announced that he had an expert witness who would testify in opposition to Mr. Painter's supplemental report and that that witness would be designated a rebuttal witness. Stripling had, before that time, consistently stated that he would use no expert witness at trial. The trial court disallowed Stripling's use of the expert witness, stating that, whereas the testimony of a rebuttal witness is in fact properly allowed in some cases, "when you are talking about an expert who will give a history and nature of this case, ... it's not fair to do so." We agree.
It has long been a rule in Alabama litigation practice that a party's counsel can rely on the answers to interrogatories of an adverse party to determine the identity of any expert witness expected to be called, as well as "the subject matter on which the expert is expected to testify, and ... the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Rule 26(b)(4)(A), Ala.R.Civ.P. When interrogatories are used to discover information about experts who will testify at
In addition, in this case, as in many others, the parties were subject to a "scheduling order"; the scheduling order in this case stated the following requirement, which was agreed to by counsel for Stripling at a scheduling conference: "(5) That by January 15, 1992, plaintiff shall disclose to defendants any and all expert witnesses to be used at trial."
In Electrolux Motor AB v. Chancellor, 486 So.2d 414 (Ala. 1986), also a products liability case, but involving a chain saw, the defendant, Electrolux, failed to furnish the information required by the trial court's pretrial order. In its answer to interrogatories from the plaintiff, Electrolux stated that it would have a manufacturer's representative at trial who "may be called to give expert opinions about the state of the art at the time this chain saw was manufactured. If any additional experts are going to be used we will supplement the record." 486 So.2d at 415.
In this case, at the time of Stripling's deposition, his counsel stated, "If we had an expert, we would tell you; but we do not anticipate at this time bringing in any experts." Counsel for Stripling also stated: "Of course, as soon as we determine an expert, we are required by your interrogatories to let you know."
In Electrolux, at trial, when Electrolux attempted to elicit expert testimony from the manufacturer's representative, whose name had never been furnished, as the answer to the interrogatory had suggested it would be, the court sustained the plaintiff's objection and refused to the let the representative testify as an expert. 486 So.2d at 416. Additionally, the court did not allow Electrolux to take the testimony of its outside expert, after the plaintiff advised the court that he had not received a witness list. 486 So.2d at 415.
On appeal, Electrolux contended that it had been "denied due process by the trial court's refusal to allow it to present its own expert to rebut the testimony of Chancellor's expert as to the defectiveness of the chain saw." 486 So.2d at 416. (Emphasis added.) This Court did not agree.
Citing Rule 16, Ala.R.Civ.P., for the proposition that the parties are bound by the pretrial order, the Court held that the trial court had not abused its discretion in disallowing the testimony of the two expert witnesses. Id. Also, citing Rule 26(e)(1)(B), Ala.R.Civ.P., the Court noted that Electrolux had a duty to supplement its response to the plaintiff's interrogatories with the names of each expert it expected to use, as well as the name of its own representative from whom it expected to elicit expert testimony. The Alabama Rules of Civil Procedure "placed upon Electrolux the burden of supplementing its answer when it decided who it would use as an expert witness at trial, rather than requiring that [the plaintiff] again request the name of the expert witness from Electrolux." Id. at 417. Thus, this Court held that the trial court did not deprive Electrolux of "that fundamental fairness to which it was entitled." Id. at 418.
Stripling argues that if a witness is to be used as a rebuttal witness, the witness is somehow exempt from the requirements of Rule 26(b)(4)(A) regarding expert witnesses. However, in Super Valu Stores, Inc. v. Peterson, 506 So.2d 317 (Ala.1987), in a similar procedural context, this Court addressed that question. Super Valu, the appellant, made in its brief an argument very similar to that made by Stripling in this case. Super Valu argued:
The Court rejected this assertion, citing Rule 16, Ala.R.Civ.P., and reiterating the virtue of the pretrial order in controlling
We hold that the trial court did not abuse its discretion in precluding Stripling's expert witness from testifying because that expert's identity and the substance of his expected testimony had not been revealed before trial, as required by the pretrial order and by Rule 26(b)(4)(A), Ala.R.Civ.P.
Based on the foregoing, as to this issue the judgment is affirmed.
HORNSBY, C.J., and ADAMS, HOUSTON and STEAGALL, JJ., concur.