United States District Court, D. New Mexico
MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT
WAL-MART'S MOTION FOR SUMMARY JUDGMENT
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.
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.
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.
the incident, Ms. Safford had recurring back injuries. Ms.
Safford was also approximately eight to ten weeks pregnant at
the time of the incident.
Safford was not present at the time of the incident and has
never seen the surveillance video.
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
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.
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.
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.
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
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
[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.
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 ...