Anderson v. Wal-Mart Stores, Inc.

Filing 80

ORDER denying Defendant's 74 Motion for Sanctions Against Plaintiff for Spoilation of Evidence. Signed by Magistrate Judge George Foley, Jr on 2/1/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JUDITH ANN ANDERSON, Administrator of the )
Estate of JEAN C. BRIDGE,
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Plaintiff,
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vs.
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WAL-MART STORES, INC., et al.,
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Defendants.
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__________________________________________)

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Case No. 2:10-cv-02235-GMN-GWF
ORDER
Motion for Sanctions for
Spoliation of Evidence - #74

This matter is before the Court on Defendant’s Motion for Sanctions Against Plaintiff for

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Spoliation of Evidence (#74), filed on January 7, 2012; Plaintiff’s Opposition to the Motion for

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Sanctions (#77), filed on January 19, 2012; and Defendant’s Reply to Plaintiff’s Opposition (#79),

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filed on January 30, 2012.

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BACKGROUND

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On December 5, 2008, Plaintiff’s decedent Jean C. Bridge, who was 84 years old, was

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shopping in the Wal-Mart Department Store located at 5200 S. Fort Apache Road in Las Vegas,

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Nevada. Ms. Bridge was pushing a shopping cart in the vicinity of the pharmacy department when

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her right shin made contact with a metal step stool that had apparently been placed against a wall.

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Ms. Bridge suffered a laceration to her right leg and was later hospitalized because of the injury and

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other health problems. Ms. Bridge died in August 2010, prior to the filing of this lawsuit, and her

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sworn testimony was never obtained. There were no other eyewitnesses to the accident and the

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store area in which the accident occurred was reportedly not viewable on the store’s video

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camera(s).

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...

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Ms. Bridge made three brief statements about how the accident occurred prior to leaving the

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Wal-Mart Store on December 5, 2008. Betty Tang, a Wal-Mart employee, testified that Ms. Bridge

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asked her for a paper towel. Ms. Tang asked her what happened and Ms. Bridge said she hit the

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ladder with her cart. Ms. Tang then saw the blood on her leg. It appears from the context that this

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exchange occurred shortly after the accident happened. Motion (#74), Exhibit K, Deposition of

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Betty Tang. Wal-Mart employee Julie Dillman testified that she presented Ms. Bridge with a

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“Customer Statement” form. Ms. Bridge was unable to fill out the form, so Ms. Dillman allegedly

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wrote down what Ms. Bridge told her. According to this statement, Ms. Bridge stated that she “was

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walking by front of pharmacy hit right leg (shin) on step stool leaned against wall.” Defendant’s

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Opposition to Plaintiff’s Motion for Sanctions (#34), Exhibits G and H. Sherwin Trinidad, a store

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customer, provided a written statement to Wal-Mart and later testified at deposition that he heard

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Ms. Bridge tell the ambulance paramedic that while moving her cart she hit the step stool which

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was folded on the wall. Motion (#74), Exhibit L. In addition to the foregoing statements, Wal-

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Mart’s claims adjuster interviewed Ms. Bridge by telephone on December 12, 2008. Opposition

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(#77), Exhibit 4. During this interview, Ms. Bridge reportedly stated that the step stool or “folded

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up chair” was against the wall and that it fell and hit her right leg as she was leaving the pharmacy

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area.

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DISCUSSION
The Plaintiff previously filed a motion for sanctions against Defendant Wal-Mart based on

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its failure to preserve the step stool involved in Ms. Bridge’s accident. Plaintiff requested that Wal-

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Mart’s answer be stricken and that its default be entered as sanction for its willful misconduct.

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Motion Regarding Spoliation of Evidence (#31). The Court concluded that Wal-Mart was

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negligent in failing to preserve the step stool, but that its conduct did not warrant the severe

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sanction of default. Order (#47). The Court did, however, impose lesser evidentiary sanctions to

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alleviate any prejudice caused by Defendant’s failure to preserve the step stool. Id.

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Defendant now moves for sanctions against Plaintiff based on her alleged failure to timely

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file suit against Wal-Mart or take other measures which would have ensured Ms. Bridge’s

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availability as a witness at deposition or trial. Defendant argues that it has been materially
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prejudiced by Ms. Bridge’s unavailability and that Plaintiff’s complaint should therefore be

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dismissed. Alternatively, Defendant requests a rebuttable presumption instruction that Ms.

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Bridge’s testimony would have been adverse to Plaintiff. Defendant also requests that Plaintiff be

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barred from introducing Ms. Bridge’s alleged statements about how the accident occurred.

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As previously stated in Order (#41), the court has the inherent authority to impose sanctions

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based on a party’s failure to preserve relevant evidence. Sanctions may be imposed if the party was

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on notice that the evidence was potentially relevant to pending or reasonably foreseeable litigation

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and failed to take reasonable steps to preserve it. United States v. $40,955.00 In U.S. Currency,

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554 F.3d 752, 758 (9th Cir.2009); Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir.2006); and

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United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir.1992). See also Anderson v.

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Wal-Mart Stores, Inc., 2011 WL 4621286, at *3-*4 (D.Nev. 2011). The forms of sanction may

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include (1) an instruction to the jury that it may draw an inference adverse to the party or witness

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responsible for destroying the evidence, (2) an order excluding witness testimony proffered by the

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party responsible for destroying the evidence, or (3) a dispositive order dismissing the complaint or

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entering a default judgment. In re Napster, 462 F.Supp.2d 1060, 1066 (N.D.Cal.2006). See also

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Powell v. Texvans, Inc., 2011 WL 1099120, *4 (D.Nev.2011) and Morford v. Wal–Mart Stores,

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Inc., 2011 WL 635220, *3 (D.Nev.2011). While a finding of bad fath is not required for the

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imposition of sanctions, “a party’s motive or degree of fault in destroying evidence is relevant to

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what sanction, if any, is imposed.” In re Napster, 464 F.Supp.2d at 1066–67, citing Baliotis v.

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McNeil, 870 F.Supp. 1285, 1291 (M.D.Pa.1994). Courts should choose “the least onerous sanction

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corresponding to the willfulness of the destructive act and the prejudice suffered by the victim.”

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Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76, 79 (3rd Cir.1994); Dillon v. Nissan Motor

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Co., Ltd., 986 F.2d 263 (8th Cir.1993). See also Leon v. IDX Systems Corp., 464 F.3d 951, 959

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(9th Cir. 2006).

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Plaintiff has the burden of establishing that Ms. Bridge’s injury was caused by the

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negligence of the Defendant. An owner or occupier of premises is liable for an injury to its invitee

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that was caused by an unreasonably dangerous condition on its premises, if the owner had actual or

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constructive notice of its presence. Asmussen v. New Golden Hotel Co., 80 Nev. 260, 262, 392
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P.2d 49, 50 (1964); Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250, 849 P.2d 320, 322-23 (1993).

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The owner is not liable, however, for injuries caused by a dangerous condition that was open and

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obvious and could have been avoided by the plaintiff in the exercise of reasonable care. Gunlock v.

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New Frontier Hotel, 78 Nev. 182, 185, 370 P.2d 682, 684 (1962). Plaintiff’s theory of liability is

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that Wal-Mart was negligent in placing or allowing the step stool to be placed against the wall, and

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that it does not matter whether Ms. Bridge hit the step stool with her cart or it simply fell on its own

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as she passed by. Opposition (#77), pg. 20. If Ms. Bridge had been available to testify, however,

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direct or cross-examination of her may have revealed whether she reasonably could or should have

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avoided contact with the step stool. Her testimony obviously could have been an important factor

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in determining liability for the subject accident.
The issue here is whether the alleged delay in filing this lawsuit deprived Defendant of the

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opportunity or ability to obtain Ms. Bridge’s testimony. The Court concludes that it did not.

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Sanctions may be warranted if a person, with knowledge that an action will likely be filed and that

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an important or material witness may to be unavailable at a later date, fails to disclose that

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information to the expected adversary so that it can take measures to preserve the witness’s

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testimony if it so desires. In this case, Defendant was aware of Ms. Bridge’s December 5, 2008

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accident shortly after it occurred. Defendant’s employee obtained a brief statement from Ms.

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Bridge before she left the store. Defendant’s claims adjuster also interviewed Ms. Bridge on

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December 12, 2008 and obtained additional information from her about how the accident occurred.

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Defendant was notified within a relatively short period after that accident that Ms. Bridge had

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retained counsel and would be pursuing a personal injury claim. Defendant was also aware of Ms.

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Bridge’s advanced age and was informed by Ms. Bridge’s counsel about her medical condition.

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If Defendant believed that it did not have sufficient information or that Ms. Bridge’s

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testimony would be helpful to its defense, it could have requested that Ms. Bridge voluntarily

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submit to a deposition in advance of suit. Defendant also could have petitioned the Court for leave

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to perpetuate Ms. Bridge’s testimony pursuant to Rule 27 of the Federal Rules of Civil Procedure

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or Rule 27 of the Nevada Rules of Civil Procedure. Although generally available to a potential

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plaintiff or defendant, Rule 27 is particularly available to a person who expects to be made a
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defendant because the petitioning party is required to show that it cannot presently bring or cause

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the action to be brought. Rule 27(a)(1)(A). See Martin v. Reynolds Metals Corp., 297 F.2d 49, 54

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(9th Cir. 1961).

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Defendant Wal-Mart was clearly on notice that Ms. Bridge was pursuing a claim against it

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and that, due to her age and physical condition, she might not be available at a later date after suit

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was filed. Under these circumstances, Plaintiff was under no duty to take any further action to

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preserve Ms. Bridge’s testimony for the benefit of Defendant. Accordingly,

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IT IS HEREBY ORDERED that Defendant’s Motion for Sanctions Against Plaintiff for
Spoliation of Evidence (#74) is denied.
DATED this 1st day of February, 2012.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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