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An Ohio woman can sue Wal-Mart Stores Inc. for allegedly hiding evidence that the company knew about accidents similar to the one that killed her husband, according to an Oct. 31 decision of the Ohio Supreme Court. Davis v. Wal-Mart Stores Inc., No. 00-1145. The Davis case is the latest involving damning documents that the company allegedly failed to turn over in lawsuits, which lawyers and others later dug up on their own. In September, The National Law Journal reported on a secret company document suggesting security precautions that, according to plaintiffs’ lawyers, could have prevented the abduction and rape of a Texas woman. In September 1992, Tom Davis was unloading a produce truck at a Sam’s Club store in Oakwood, Ohio, when the truck pulled away too soon, causing the forklift Davis was operating to fall off the loading dock, pinning him underneath and killing him. (Sam’s Club is a division of Arkansas-based Wal-Mart Stores.) Before filing the complaint, Davis’ widow hired a private investigator, who turned up a crucial Sam’s Club memorandum, written eight months before her husband was killed. “Recently we have had several incidents where trucks have prematurely pulled away from our dock while an associate and/or lift equipment was still on the truck,” said the memorandum. To fix the problem, Sam’s Club required that truck drivers hand over their keys while their trucks were being unloaded, to ensure they wouldn’t be driven away, possibly injuring workers. FIRST LAWSUIT Davis sued, claiming that Wal-Mart failed to follow its own procedures, creating a “substantial certainty” that the accident would occur — a higher standard than a simple negligence action, which would have been barred under Ohio’s workers’ compensation law. During discovery, Wal-Mart failed to turn the document over, despite discovery requests that, according to Davis’ lawyer Brian N. Eisen, were tailored to cover a document that Wal-Mart didn’t know Davis had already found. (See the document online at http://www.nlj.com/). At trial, Eisen’s partner William Greene argued that Wal-Mart tried to hide evidence that the company knew would sink its case. The jury awarded Davis $2 million. Then, while the lawyers were litigating over prejudgment interest, which would add another $600,000 to the verdict, Davis’ lawyers learned there were accident reports, which Wal-Mart had claimed it could not locate, providing additional information about the other, similar accidents. Davis sued again, this time claiming that Wal-Mart had violated a duty to preserve the evidence. The trial judge dismissed the case on the ground that the spoliation claim had already been raised — with apparent success — at trial and that Davis should not be allowed to litigate it a second time, a point that Wal-Mart took up on appeal. Wal-Mart also urged Ohio to abandon its spoliation tort, which creates a cause of action for destruction of evidence. The company argued that courts already have ample power to punish parties that lose or destroy evidence and that few states recognize the spoliation tort. Eisen said that Wal-Mart’s liability in the tort case and its failure to turn over evidence are separate issues. “Killing a man is one thing. Cheating his widow is another,” said Eisen. “We’re going to ask a jury to punish them, and punish them good, so they’ll stop cheating.” In a plurality opinion, the Ohio Supreme Court ruled that Davis can go ahead with the separate spoliation claim, although it was unclear whether she could recover punitive damages without proving specific harm to her original case. “What this case illustrated and what other cases illustrated is that Wal-Mart failed to keep its records in a diligent manner,” said Wal-Mart spokesman Bill Wertz. The company has taken steps to ensure that Wal-Mart’s legal department and its local stores respond properly to discovery requests, he said. Jeffrey S. Sutton of Jones, Day, Reavis & Pogue represented Wal-Mart before the Ohio Supreme Court. A former Ohio solicitor general, he was nominated in May to the 6th U.S. Circuit Court of Appeals. The Davis case is set to return to a Cleveland state court for trial of the spoliation claim. Wal-Mart has not yet determined how it will proceed, according to Wertz, the company spokesman.

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