8th Circuit Affirms Denial of Plaintiff’s Motion for New Trial in Wal-Mart Trip and Fall

Bonnie Rodrick v. Wal-Mart Stores East, L.P., Case No. 11-1085 (8th Circuit, January 20, 2012)

On April 2, 2004, Bonnie Rodrick tripped on a rug at a Wal-Mart store in Maryville, Missouri, fracturing her left hip and requiring surgery, rehabilitation, and subsequently, a total hip replacement.  Invoking diversity jurisdiction, Rodrick sued Wal-Mart in 2007 in the United States District Court for the Western District of Missouri, asserting tort claims.  When the jury returned a verdict in favor or Wal-Mart, Rodrick filed a motion for new trial, which was denied.

On appeal to the 8th Circuit, Rodrick argued that the district court erred in denying her motion for a new trial, challenging: (1) the court’s admission of the testimony and “expert” report of Dr. Simon, a physician who conducted an independent medical examination, who testified based upon his own personal observations of Rodrick; (2) the court’s exclusion of evidence regarding prior falls on the same rug, which Rodrick sought to introduce by way of cross-examination; and (3) statements from defense counsel during closing arguments regarding the good character of the Wal-Mart store manager, which had been discussed during voir dire.

First, regarding the “expert” report of Dr. Simon, Rodrick argued that it should not have been admitted at trial because it did not comply with Fed. R. Civ. P. 26(a)(2), which dictates the form and framework of disclosed expert reports.  Although the report did not comply with Rule 26, Dr. Simon was still allowed to testify at trial regarding his personal observations of Rodrick during his independent medical examination.

The court found that the use of Dr. Simon’s report at trial was harmless because there was no surprise or prejudice to Rodrick.  Wal-Mart disclosed Dr. Simon and his report a year and a half prior to trial.  Rodrick made no objections to Dr. Simon’s report or requests for supplementation until the day he was to testify at trial.  Dr. Simon was not allowed to testify as an expert, but rather, he testified only about his own observations, as specifically directed by the district court.  Although Dr. Simon’s report was discussed during trial, it was never admitted into evidence.  Based on the foregoing, the 8th Circuit declined to reverse based on the admission of Dr. Simon’s testimony, finding that it could only have had only a slight impact, if any at all, on the jury’s verdict.

Second, regarding prior incidents, Rodrick obtained a copy of written notes from a Wal-Mart “Risk Control Weekly Team Meeting” that was held five days after Rodrick’s fall.  These notes referenced that Wal-Mart pulled up the rug that Rodrick tripped on because it was the second incident involving that rug at that location.  Rodrick sought to use this evidence to impeach the Wal-Mart store manager who testified that it was standard protocol when an accident like this occurs to “take pictures, do the incident report, and then [in a case like Rodick’s], store the mat away.”

Outside the presence of the jury, the parties discussed the first incident at length.  The prior incident involved a Wal-Mart customer who had recently undergone knee surgery.  The customer put his foot down on the rug and pushed it forward, causing stress to the customer’s knee, which apparently led to a fall.  According to the testimony of the store manager, there was nothing wrong with the rug at that point, nor was the rug the cause of the fall.  Rather, the customer pushed the rug, which is the reason it was not picked up.  The district court found that although the two incidents involved the same rug at the same location, they were too dissimilar to allow use of the prior incident evidence for impeachment purposes at Rodrick’s trial, assuming the evidence was proper impeachment evidence in the first place.  The 8th Circuit held that the district court did not abuse its discretion in denying use of the prior incident evidence, finding that the two incidents were not similar – one a slip because a customer pushed a rug and became off-balance, and one a trip.

Third, regarding improper statements of counsel during closing arguments, Wal-Mart’s counsel referenced statements made by potential jurors during voir dire, stating, in effect, that the jury heard other potential jurors talk about the good character of Wal-Mart’s store manager.  Rodrick’s counsel objected to these statements, which were sustained by the district court with an instruction to the jury to disregard them.  The 8th Circuit stated that a new trial can only be granted based on improper statements made during closing arguments if the statements are “plainly unwarranted and clearly injurious” and “cause prejudice to the opposing party and unfairly influence a jury’s verdict.”  The 8th Circuit found that Rodrick had failed to meet this burden, finding that the comments were not clearly injurious, given the context in which they were made, the immediate objection, which was sustained, and the court’s immediate curing instruction.


Author: Philip V. Sumner, (816) 460-2811 (direct)

About the Author

Philip Sumner

Philip Sumner is an experienced litigator representing local, national and international companies in the areas of commercial litigation, product liability, and insurance defense. He... More about Philip Sumner

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