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Safford v. Wal-Mart Stores, Inc.

United States District Court, D. New Mexico

February 16, 2017

CASSANDRA SAFFORD and JOSHUA SAFFORD, Plaintiffs,
v.
WAL-MART STORES, INC. and JOHN DOE Defendants.

          MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT WAL-MART'S MOTION FOR SUMMARY JUDGMENT

         THIS MATTER comes before the Court on Defendant Wal-Mart Stores East, L.P. (“Wal- Mart”)'s Motion for Summary Judgment and Memorandum in Support filed on January 19, 2017 (Doc. 38). Having reviewed the relevant pleadings and the applicable law, the Court finds the Motion for Summary Judgment is well-taken, and is therefore GRANTED.

         BACKGROUND[1]

         Plaintiffs Cassandra and Joshua Safford claim they suffered a variety of damages on February 21, 2013 when Ms. Safford sat on a futon in a Wal-Mart Pharmacy that allegedly collapsed. Ms. Safford claims the futon was placed on risers that collapsed when she sat down, causing her to fall and hit her tailbone on the floor. Ms. Safford explained that her bottom made contact with the floor “slightly” and that it was halfway on the futon cushion and halfway on the floor.

         Surveillance video of the incident shows that Ms. Safford did not fall. The video depicts Ms. Safford sitting on the futon, the futon shifting slightly, and Ms. Safford immediately standing up and walking away. The futon did not collapse, and no part of the seat made contact with the floor, as evident by the fact that Ms. Safford remained seated on the cushion. Ms. Safford admitted in her deposition that her memory of the incident is inconsistent with the video.

         Before the incident, Ms. Safford had recurring back injuries. Ms. Safford was also approximately eight to ten weeks pregnant at the time of the incident.

         Mr. Safford was not present at the time of the incident and has never seen the surveillance video.

         Plaintiffs filed a Complaint on January 5, 2016 asserting five counts against Wal-Mart: Negligence; Negligence Per Se; Prima Facie Tort; Negligent Entrustment, Hiring, Retention, Supervision, Training Instruction And Evaluation, Invoking the Doctrine of Respondeat Superior; and Punitive Damages. Plaintiffs claim the Wal-Mart incident caused Ms. Safford to suffer an injury to her back (a herniated disc), which caused back pain that radiated to her legs and eventually necessitated back surgery.

         Regarding damages, Plaintiffs allege that as a result of the February 21, 2013 incident, Ms. Safford sustained severe and permanent injuries, pain and suffering, and has incurred medical expenses and will continue to incur medical expenses. She states she has been precluded from many of her daily activities and has suffered loss of enjoyment of life. Mr. Safford asserts a claim for loss of consortium.

         During discovery, Ms. Safford explained that no medical doctor stated her claimed injuries were caused by the incident at Wal-Mart. No medical provider told her she needed surgery as a result of the incident, or that she would need any future treatments on her back. In fact, Ms. Safford does not experience pain that affects her life, has no permanent injuries, and her doctor stated that he was “very happy” with the results of her back surgery.

         At her deposition, Ms. Safford raised a new damage claim regarding her pregnancy. She claims that while she was pregnant, a small white dot was visible on her daughter's liver during an ultrasound. The white dot was later diagnosed as a calcium deposit. No medical provider ever told Ms. Safford that the calcium deposit was caused by the Wal-Mart incident.

         Under the Court's Pre-Trial Scheduling Order, Plaintiffs were required to disclose their expert witnesses by September 28, 2016. Doc. 24 at 2. Wal-Mart was to disclose its expert witnesses by November 11, 2016. Id. Plaintiffs failed to disclose any expert witnesses or to produce any expert reports addressing medical causation of Plaintiffs' alleged injuries. Ms. Safford confirmed in discovery that she will not call any expert witnesses at trial.

         Wal-Mart timely disclosed its expert, G. Theodore Davis, M.D. (“Dr. Davis”) along with his expert report. See Doc. 32. Dr. Davis reviewed Ms. Safford's imaging records, her medical records from seven providers, her discovery responses, photos of the futon, and the surveillance video. Dr. Davis concluded there is no medical basis to conclude the February 21, 2013 incident at Wal-Mart caused Ms. Safford to sustain a clinically significant back injury. Dr. Davis explained that when viewing the surveillance video:

[W]hen plaintiff sat down at the right end of the couch for the second time after she stood up to reposition her body, the futon couch shifted as she sat, she remained seated on the cushion and did not demonstrate any excessive or abnormal body movements because of which there would be a medical basis to support a conclusion that she could have experienced a consequential clinical mechanism of injury to her lower back or other body regions.

         Dr. Davis also noted Ms. Safford had a prior history of back complaints, beginning in at least early 2010, and that the medical record from her first midwife visit after the incident, on February 26, 2013, makes no reference to the Wal-Mart incident. Dr. Davis opined there is “no medical basis to support a conclusion that any pre-existing condition had been aggravated by or otherwise adversely affected by this event” and there is no medical basis to support a conclusion that the February 21, 2013 incident caused Ms. Safford to develop medical ...


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