Appellate Practice

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A federal appeals court has threatened to sanction an Indiana lawyer after his office left a date stamp off a photo in an appeal of his client’s slip-and-fall case against Walmart.

In a Nov. 26 decision, the 7th U.S. Circuit Court of Appeals at Chicago ordered lawyer James Ayers of Crawfordsville to show cause why he shouldn’t be sanctioned. The court also said it could forward its opinion to Indiana ethics officials, depending on Ayers’ response.

The 7th Circuit cited “persuasive evidence” that the photo was intentionally altered to remove the date and “distressing” representations by Ayers that the pictures were taken on the date that his client fell.

Ayers had represented Linda Waldon, who said she slipped on a hanger on the floor of a Walmart, causing injuries when she fell. She and her husband both sued. Indiana premises-liability law requires proof that the defendant was aware of a condition carrying an unreasonable risk of harm.

A Walmart employee had testified that she inspected the area five to 10 minutes before Waldon fell and didn’t see any hangers on the floor. Waldon had said she showed an employee the hanger that caused her to fall, and the employee grabbed the hanger and quickly left the area, according to an appellate brief by Ayers.

A federal judge had tossed the case because of a lack of proof that Walmart was aware of the hanger. The 7th Circuit upheld the grant of summary judgment to Walmart.

In its order to show cause, the 7th Circuit focused on two photos submitted in opposition to Walmart’s motion for summary judgment. One photo was undated, and the other had a date stamp of Jan. 12, 2017, which was 11 days after Waldon fell.

Walmart had produced both photos in response to a request for internal investigation materials without indicating when they were taken, according to the company’s sur-reply brief.

On appeal, the date stamp was not included when the photos were reproduced in an appendix. Ayers said a legal assistant created the appendix, and the date stamp disappeared when the color photos were scanned and reproduced as black and white.

But a lawyer is responsible for the assistant’s conduct, the 7th Circuit said in the opinion by Judge Michael Brennan, an appointee of President Donald Trump. And differences between the photos in the appellate and district court record suggest that the changes were intentional, the 7th Circuit said.

The photo with the missing time stamp was apparently cropped, the 7th Circuit said. And the two pages with the photos were the only ones among a 248-page appendix that had handwritten page and exhibit numbers, and the only ones without the district court’s filing information across the top.

Even more troubling, according to the 7th Circuit, were Ayers’ representations about the photographs. The lawyer said in his appellate brief and in oral arguments that the photos were from the date of Waldon’s injuries, according to the court.

In footnotes, the 7th Circuit cited, in a shorter form, these statements from Ayers’ 7th Circuit brief:

• “Even after plaintiff’s fall, the floor was littered by fallen merchandise under and around the adjoining racks as shown by the Walmart photograph. The accuracy of that photo is authenticated by plaintiff’s testimony that as she lay on the floor waiting in vain for assistance from a Walmart employee, she observed the floor to be littered.” The 7th Circuit footnote left out “even after plaintiff’s fall,” as well as the second sentence.

• “The weight of those assertions of constant attention and clean up depend on the credibility of the affiants, which credibility is questioned by the substantial debris identifiable in photos of the scene at the time of plaintiff’s injury. And while the photos are from January 1, 2017, the date of injury, what would the worth of Walmart’s position and its witnesses be if the conditions were unchanged two weeks later.” The 7th Circuit quote began with “The substantial debris” and ended with “the date of injury.”

• “Constructive notice is clearly established when photographs are observed. This mess must have collected for more than 15 minutes before her fall, and the fact that Walmart can have and produce this photo and still deny accumulating dropped bits of lingerie and plastic hangers is incredible.”

In another footnote, the 7th Circuit said that, after he was questioned about the photo, Ayers said in a sur-reply brief that the date stamps “do not date the taking of the photo,” according to the 7th Circuit.

The 7th Circuit left out some additional information from the brief. It reads: “The 01/12/2017 shadow date and corner date mark are Walmart’s additions, probably related to its investigative process. They do not date the taking of the photo.”

Ayers did not immediately respond to the ABA Journal’s message seeking comment.

Hat tip to Law360 and the Indiana Lawyer, which covered the decision.