Congratulations to trial lawyers Evan Anders and Jim Cole of Cole, Cole, Easley & Sciba, P.C. for securing a $4 million verdict against Walmart, Inc. in a premises liability case involving improperly stacked merchandise. The team drew heavily from the lessons of Jesse Wilson, as well as Keith Mitnik and Sari de la Motte, to achieve this phenomenal verdict.
The Accident
A 56-year-old woman was shopping at a Texas Wal-Mart when a tower of plastic tubs stacked 36 units high fell on top of her. Weighing over 140 pounds, the tubs had been improperly stacked and weren't sitting squarely on the base, which was how they toppled. The plaintiff had been a bystander at the moment of the collapse.
The accident resulted in a serious neck injury and bulging disc that required a four-level cervical fusion. The injury limited her range of motion, leaving her with numbness and tingling throughout her upper body. The woman had an extensive history of chronic pain, though most of her prior pain was unrelated to her neck.
The plaintiff team filed a case against Wal-Mart Stores Texas, LLC, claiming that they did not fulfill their responsibility to protect their customers.
Establishing Liability
A premises liability case requires that the defendant both knew, or should have known, of an unreasonably dangerous condition, and that they failed to remedy it. Wal-Mart argued that there was no evidence of the danger, and that therefore there was nothing for them to have known in the first place. (They initially argued, unsuccessfully, about whether or not the tower of plastic tubs qualified as a dangerous condition.)
Early evidence showed that even the Walmart team leader on duty acknowledged that the merchandise should have never been stacked as it was. This acknowledgement was made to both the plaintiff and the plaintiff’s husband moments after the accident. The employee later denied saying this.
Additionally, Walmart’s own training materials strongly suggested that the towers were stacked incorrectly. One of the tips in the training materials encouraged employees to ask themselves, while looking at a display, “If a child or an electric cart bumped into your display, would it stay standing?” On this standard alone, the tower of plastic tubs presented an unreasonably dangerous and unaddressed condition.
Wal-Mart’s Pretrial Offer
“We did not expect the case to settle,” says Jim Cole; indeed, Walmart offered just $1.25 million shortly before trial. The case was tried in Victoria County, a conservative Texas community of ranchers and oil-industry workers. Wal-Mart may have assumed that a conservative jury would be resistant to a full, fair verdict. Knowing that their case was worth substantially more, however, the plaintiffs denied the offer.
“We had a client that had a lot of courage, and we were expecting that it would go to trial,” explains Jim. “We were happy to have had the opportunity.”
The Trial
After a late start due to weather, the trial began January 27 , in Victoria County TX. It lasted three days.
Voir Dire
Knowing that their client had been surveilled by the defense, the plaintiff team used a classic Rick Friedman technique called “polarizing the case” where they called attention to the defense's subtext that their client was malingering. During voir dire, the plaintiff team asked the jury if they'd known anyone who had suffered an injury or an illness, but who didn't want people to know about it or feel sorry for them. This was a concept that resonated with several jurors.
Witnesses
Neither side called a liability expert, but the plaintiffs called a pain specialist, as well as a neurosurgeon who testified by deposition. For lay witnesses, the plaintiff team called their client's husband, the client's lifelong friend, and her adult daughter.
The defense called an orthopedic surgeon who regularly testifies for the defense, and does not regularly treat necks or perform neck surgery. The defense also presented a medical billing expert who argued that the medical bills—most of which were covered under letters of protection—were “excessive.”
Visual Aids
In some cases, video evidence is enough to resolve the claim; in this case, however, surveillance video offered poor resolution from too great a distance, and did not bring value to the plaintiff’s case. In place of video footage, the plaintiff team brought an eye-catching visual of their own: a full palette of the plastic tubs that had fallen on her, demonstrating both their size and their inherent danger when stacked precariously.
The plaintiff team also used an animation of the herniated disc surgery: a visual aid that they felt was the most compelling element of their presentation. The spinal surgery, a four-level fusion, involved five vertebrae, as well as the use of a saw, screws, and rods on the spine. The animation showed the graphic nature of the procedure, and the magnitude of the injury.
The Verdict
The jury found the defendant 100 percent liable for the plaintiff’s injuries. They awarded $4 million in past and future medical costs, physical pain and mental anguish, and physical impairment to the plaintiff:
Trial Guides Titles in Action
“Jesse Wilson was instrumental in our case framing, voir dire, and closing and rebuttal preparation,” says Jim. The trial team hired Jesse a bit later in the case, after discovery had concluded.
“Jesse helped [us] frame the case favorably in light of the fact that Walmart had hired investigators to follow [our client], getting pictures of moments when she's smiling and living a normal life,” Jim says. “He helped us lean into this element instead of shying away from it.” The team also employed Wilson’s “dead body in the water” approach in their opening: a technique described in Wilson’s second book, The Most Important Juror.
The plaintiff is a woman of deep faith. “We categorized her—I think rightly—as a helper, both before and after [the injury]. Her desire to help was hindered by the injuries that she suffered, but we were able to talk about how she was able to manage to still pursue that goal of being a helper for those around her.” The team used the “Victim to Victor” approach in accordance with Wilson’s framing and coaching.
Keith Mitnik’s work also factored into the plaintiff’s approach during trial, particularly the concept of “full justice.” They also employed Mitnik’s techniques of not anchoring low when asking for damages, keeping one consistent model for both economic and noneconomic losses, and deploying powerful, perfect words to present their case.
Finally, the team drew from Sari de la Motte’s book, From Hostage to Hero, in presenting the case to the jury. “[Our client] was sort of made a victim by Walmart following her around and taking pictures of her. The argument Walmart made was that she's fine because she smiles. We argued that she wasn’t free to be herself because Walmart was trying to make her out to be a liar.” They married this concept with the presentation of their client as a helper and survivor: someone who is not looking to play the victim, even in terrible circumstances. “We successfully recruited the jurors to go from ‘hostages‘ to ‘heroes’ by their verdict.”
Sari De La Motte's From Hostage to Hero is available in paperback and ebook.
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