By the time Ronna Martino's negligence lawsuit against the giant retailer went to trial, neither the videotape nor the shopping cart could be found, and the recollections of an assistant manager as to what had happened were hazy.
Perhaps he had looked for the cart; perhaps he had asked someone else to look for the cart. Either way, the cart was gone, no one could produce a videotape and what was left of Martino's case was not particularly compelling. The judge ruled for Wal-Mart before the case could even get to the jury.
Next month, however, Martino's shopping cart accident will be argued in the Florida Supreme Court, with lawyers lined up on both sides to argue what has become one of the hottest issues in civil litigation: Can a defendant be sued for failing to preserve evidence that would have favored the plaintiff?
The case has drawn briefs from the Academy of Florida Trial Lawyers and the Florida Defense Lawyers Association as well as from a collection of growers accusing E.I. du Pont Nemours & Co. of destroying evidence related to product liability suits over the fungicide Benlate.
Plaintiffs lawyers argue that the system does not do enough to deter big corporate defendants from playing games with evidence, ranging from stonewalling to outright destruction.
Though judges can impose a variety of sanctions if they determine that a litigant has been less than forthcoming, plaintiffs lawyers say the threat of fines or reprimand does not deter defendants who calculate their litigation strategy strictly along the lines of costs and benefits. And though sanctions can go as far as stripping a defendant of its defenses and allowing a jury to assume that the missing evidence favors the plaintiffs, such drastic penalties are rare.
For years, Wal-Mart was the poster child for litigation reform in this area.
In 1999, one judge grew so frustrated with the tactics of the retailer that he imposed $18 million in sanctions. The fine was later withdrawn after Wal-Mart publicly apologized. The company attributed its failings to sloppy record-keeping and pledged improvements.
Clarifying duty
Defense lawyers say the whopping fine is proof that judges have all the powers they need to punish and deter litigation abuses.
Creating a separate cause of action for the loss or destruction of evidence -- known in legal terms as spoliation -- would only add an unnecessary and confusing layer of litigation. Creating such a tort under the circumstances in Martino's case "could easily lead to a claim for the tort of spoliation in virtually every case," argues Coral Gables trial lawyer Rosemary B. Wilder, who is representing Wal-Mart.
"The bottom line is that most courts in the United States simply do not permit litigation on how the case was litigated and have found that litigant wrongdoing is sufficiently handled by trial judges, who have ample power to deal with every situation involving spoliation of evidence," Wilder writes in her brief to the Florida Supreme Court.
The defense, joined by the Defense Lawyers Association, also argues that as a practical matter, spoliation damages would be hard to establish because they would entail speculating as to what a jury would have done if the evidence had been available.
Florida's lower appeals courts are divided on the issue. A few have recognized spoliation as a separate cause of action. The 4th District Court of Appeal in West Palm Beach, which heard Martino's first appeal, does not, except in cases where the evidence was lost or destroyed by someone outside of the lawsuit. The rationale for allowing such third-party spoliation claims is that there is no other remedy against someone who is not a party to the underlying lawsuit.
The case also presents the court with the opportunity to clarify whether Wal-Mart had any duty to preserve potential evidence in the first place.
It's one thing to accuse a defendant of losing or destroying evidence in the middle of litigation. But do retailers have an obligation to preserve a potential piece of evidence before they have even been sued?
Such a ruling would "turn every accident scene into a crime scene," Wilder argues.
"There is absolutely nothing about the circumstances of Martino's injury that put Wal-Mart on notice that she was planning to sue," Wilder says, noting that the company paid Martino's emergency room bill and had no reason to believe that was not the end of the matter.
Benlate revisited
For the more than three dozen growers suing to reopen their settlements with DuPont over damage to their plants and flowers caused by Benlate, the 4th District's opinion in the Martino case sends a "disturbing signal" to defendants considering whether to play straight with damaging evidence. "If the 4th District's view of spoliation becomes the law of this state ... lawyers and their clients can be assured that when the destruction of evidence succeeds, the aggrieved party will have no monetary remedy," West Palm Beach lawyer David J. Sales argues.
The growers have sued to reopen their case against DuPont, alleging that the company destroyed evidence of testing that revealed problems with Benlate.
"One thing, however, is not debatable," Sales writes. "Some lawyers and their clients have concluded that cheating -- despite the risks of getting caught -- pays."
In the News
Former Orange County Chairman Mel Martinez has left his post as secretary of Housing and Urban Development to become of-counsel to the Orlando-based law firm Akerman Senterfitt, where he will provide "strategic advice and counsel" in the area of governmental relations while running for a seat in the U.S. Senate. ... Jim Bacchus, former chairman of the Appellate Body of the World Trade Organization in Geneva, Switzerland, has rejoined Greenberg Traurig's Global Trade Practice Group in Washington, D.C. ... Former Statewide Prosecutor Melanie Ann Hines has joined the Tallahassee office of business law firm Berger Singerman.