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In the latest in a series of rulings blasting the discovery practices of Wal-Mart, an appellate court in Albany, N.Y. has found that the retail giant blatantly disregarded the legitimate demands of a slip-and-fall victim. It reinstated a $125,000 verdict in favor of the plaintiff. The Appellate Division, Third Department, holding in Osterhoudt v. Wal-Mart, 86433, comes on the heels of several other cases around the country in which the firm’s discovery abuses have been condemned. In this case, the company stonewalled the plaintiff’s repeated requests for discoverable information until the day of trial. Osterhoudt arises from an Aug. 12, 1994, accident at a Wal-Mart store in Hudson, Columbia County, N.Y. After slipping on a spilled substance in an aisle, Virginia Osterhoudt suffered an injury that ultimately required knee surgery. She commenced a negligence action in October 1996. In December 1996, counsel for Osterhoudt, John P. Kingsley of Catskill, N.Y., served a notice of discovery seeking the names of witnesses, copies of reports and statements and information on maintenance procedures. Wal-Mart claimed it did not have the information at that time, and promised to continue to compile the documents demanded and forward them to the plaintiff. Seven months later, Kingsley asked for additional information, and Wal-Mart again said it was searching for the documents and would provide them when found. The following month, Osterhoudt’s attorney requested more information and Wal-Mart refused to respond. At trial, the store manager appeared under a subpoena by Kingsley, who expected him to say that he could not locate the information requested. Instead, the manager brought with him the documents that had been demanded months earlier. Kingsley moved to strike Wal-Mart’s answer, but Acting Supreme Court Justice Daniel K. Lalor denied the motion. At the close of testimony, the plaintiff moved for a mistrial and Wal-Mart moved for dismissal on the grounds that Osterhoudt failed to prove either actual or constructive notice, and therefore, could not sustain a prima facie case. Lalor reserved a ruling on the motions and sent the case to the jury, which returned with a verdict of $125,000 in favor of Osterhoudt. SANCTIONS CONSIDERED Subsequently, Lalor held a hearing to consider the outstanding motions, plus his own motion to consider sanctions against Wal-Mart for failure to comply with discovery. He ultimately found that Wal-Mart had willfully frustrated discovery, and he granted the plaintiff’s motion for a mistrial. Lalor declined to impose sanctions, reasoning that any sum “levied against a behemoth of the bulk of corporate defendant Wal-Mart Stores Inc. would represent only paltry penance and deliver a sting unlikely to penetrate in proportion to its purpose.” On appeal, the Third Department generally upheld Lalor, but criticized his remedy — a mistrial — because “it wastes judicial resources and saddles plaintiff with the financial constraints of a retrial which may not yield remuneration in the kind or degree rendered here.” Rather, the court said, the judge should have stricken the defendant’s answer. Justice Karen K. Peters wrote for the court, joined by Justices Thomas E. Mercure, D. Bruce Crew III, Edward O. Spain and Carl J. Mugglin. Wal-Mart was represented on the appeal by S. David Devaprasad, of O’Connor, O’Connor, Mayberger & First of Albany.

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