Wal-Mart Stores, Inc. v. Johnson, et al.

While stocking merchandise, Monroe Johnson, a Wal-Mart employee, accidentally knocked down at least one decorative reindeer from a high shelf onto his head and arm. At the accident scene, Johnson told Phyllis McClane, a Wal-Mart supervisor, that he was not hurt, and another Wal-Mart employee cleaned and bandaged the cut on his arm. McClane thereafter conducted an investigation during which she took personal notes, photographed the reindeer, and obtained a witness statement. She then recorded the results of her investigation on a Wal-Mart form entitled “Report of Customer Incident.” She attached the photos and the witness statement to the Report, but threw away her personal notes. According to McClane’s Report, Johnson neither threatened to sue nor indicated that Wal-Mart should pay for any medical costs or damages.

Six months after the incident, Johnson sued Wal-Mart for his personal injuries. About a year after filing suit, he underwent an anterior cervical discectomy and fusion. During discovery, Johnson requested the reindeer that fell on him and McClane’s personal notes. Wal-Mart objected to the disclosure of McClane’s personal notes and ultimately informed the court that the notes were not kept as Johnson did not indicate he would bring a claim against Wal-Mart. Wal-Mart also indicated that they no longer had the reindeer which had been innocently disposed of in the natural course of business.

At trial, the parties offered sharply divergent evidence about the composition and weight of the reindeer. Johnson testified that they were made of wood and weighed about 10 pounds. Wal-Mart produced employees who stated the reindeer were made of papermâchè and weighed about 8 ounces each. Wal-Mart further argued the “flimsy” reindeer could not have proximately caused Johnson’s injuries, which, Wal-Mart asserted, resulted from an automobile accident years earlier. The trial court, at Johnson’s urging, charged the jury with a spoliation instruction wherein the jury was to presume that the missing reindeer and McClane’s personal notes would have harmed Wal-Mart’s case if the jury concluded Wal-Mart’s disposed of the reindeer after it knew or should have known that they would be evidence in the case. The Jefferson County jury found Wal-Mart negligent and awarded Johnson $76,000 in damages. The Court of Appeals affirmed.

The Texas Supreme Court reversed the lower courts and remanded the matter to the trial court. The Court began and ended its analysis with the issue of duty, i.e., with the initial inquiry for a discovery abuse complaint. The Court noted before any failure to produce material evidence could be seen by the jury as a discovery abuse, the opposing party must establish that the non-producing party had a duty to preserve the evidence. The Court stated that such a duty only arises when a party knew or reasonably should have known there was a substantial chance that a claim would be filed and that evidence in its possession or control will be material and relevant to the claim.

The Court held that Wal-Mart had no such duty. McClane’s personal notes, which were discarded after the investigation, were not within Wal-Mart’s control and thus, not within the scope of discovery. The Court emphasized that neither Wal-Mart nor Johnson knew on the day of the accident that Johnson’s injury might be serious or that Johnson might pursue legal action. Furthermore, Wal-Mart routinely investigates all incidents on its premises. Also, the Court held Wal-Mart had no duty to preserve the reindeer since Johnson failed to show that Wal-Mart disposed of the reindeer after it knew or should have known that there was a substantial chance there would be litigation and the reindeer would be material to the litigation. Therefore, the Court held the trial court’s spoliation instruction was error because “an unnecessary spoliation instruction is particularly likely to cause harm. Because the instruction itself is given to compensate for the absence of evidence that a party had a duty to preserve, its very purpose is to ‘nudge’ or ‘tilt’ the jury.”