In Linda Waldon and Steve Waldon v. Wal-Mart Stores, Inc., Case No. 19-1529 (7th Cir. Nov. 26, 2019), Linda Waldon alleged she slipped and fell after stepping on fallen plastic hangers while browsing in a Crawfordsville Walmart, injuring her back, neck and head. Waldon sued Wal-Mart Stores Inc., alleging the company failed to provide a safe environment for its shoppers and was therefore liable. On the issue of notice, the District Court determined Walmart had presented evidence that it had no actual knowledge of the purportedly dangerous conditions, but the Waldons claimed the employees lied, submitting two photographs allegedly depicting ?substantial debris? where Linda fell. Disregarding the photos for their failure to show that the conditions depicted were the same or similar to those on the day of the accident, the District Court concluded the Waldons? premises-liability claim failed as a matter of law and entered summary judgment for the retailer.
The 7th Circuit affirmed, finding, among other things, that ?(n)one of Waldons? arrows hit their mark? regarding the issue of the employee?s testimony and concluding Linda?s challenge was insufficient to overturn the district court?s decision because she offered ?no evidentiary support for their assertion that the Wal-Mart employees? affidavits were incredible, self-serving statements that cannot support summary judgment.?
The 7th Circuit then raised the ?troubling point? that the Waldons? counsel appeared to have altered the photographs from the district court record. The appellate court asked who had altered the images and why, noting discrepancies in the date stamps on the photos. The 7th Circuit concluded Waldon?s counsel ?intentionally altered the photographs previously submitted in the district court record? and misrepresented to the court what day they were taken on. The Court said: ?After review of the entire record, including the parties? sur-replies, we conclude Waldon?s counsel intentionally altered the photographs previously submitted in the district court record and replaced them with copies of the photos without date stamps, as well as misrepresented to the court that these photographs were taken on and depict the fall site at the Wal-Mart on January 1, 2017.?
It then ordered plaintiff?s attorney to show cause within 14 days why he should not be sanctioned under Rule 46 of the Federal Rules of Appellate Procedure for altering the photographs and misrepresenting the record to the court. Ouch!