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Smith v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

June 17, 2014

THERESA SMITH, Plaintiff,
v.
WAL-MART STORES, INC., Defendant.

ORDER

CAM FERENBACH, Magistrate Judge.

This matter involves Theresa Smith's personal injury action against Walmart. Three motions are before the court: Walmart's motion for a protective order (#16[1]), Smith's motion to extend discovery (#19), and Smith's motion for discovery sanctions (#26). For the reasons stated below, Walmart's motion for a protective order is granted and Smith's motions are denied.

BACKGROUND

On April 6, 2012, Theresa Smith went shopping at Walmart. (Compl. (#1-2) at ¶ 6). Once inside, she and her husband walked down the main aisle, passing row after row of checkout registers. ( Id. ) Without warning, she slipped and fell. ( Id. ) A piece of wet, green produce-either cilantro or parsley- had been left on the ground. Smith was hurt. ( Id. ); ( see also Def.'s Mot. Prot. Order (#16) at 1:23).

An off duty emergency medical technician came to Smith's aid. (Compl. (#1-2) at ¶ 6). Eventually, a Walmart employee and a supervisor appeared. ( Id. ) Smith was unable to move. ( Id. ) An ambulance was called; and Smith was transported to Centennial Hills Hospital in Las Vegas, Nevada. ( Id. )

Smith's diagnosis was serious. The fall caused a shattered knee cap, left patella tendon tear, and left leg pain. ( Id. ) This allegedly resulted in tens of thousands of dollars in medical expenses and extreme emotional distress. ( Id. at ¶¶ 13-16). Consequently, Smith filed suit on August 8, 2013, alleging one claim for negligence.

The parties are now in the midst of discovery. On October 13, 2013, Smith served her first request for production of documents, which sough "all reports and documentation of all slip and fall and/or trip and fall personal injury cases, complaints that were filed against Defendants in Clark County for the five (5) years prior to the subject incident." (Sharp Aff. (#16-1) at ¶ 6). After a meet and confer, the parties allegedly agreed that Walmart would produce,

[I]nformation pertaining to customer slip and fall claims and incidents at Walmart Store #3351 for a period of three years prior to Plaintiff's alleged incident on April 26, 2012, including the date of each reported incident, the location within the store in which the reported incident had occurred, a claim description, and whether the claim remains open and claim reference number.

After Walmart produced this information, Smith propounded a second set of requests for production, seeking information on three prior slip and falls that were identified in Walmart's production.

Around the same time, Walmart disclosed copies of the surveillance video of Smith's fall. (Pl.'s Spoliation Mot. (#26) at 2:14-15). The video shows Smith walking down the main aisle, passing rows of checkout stands, slipping, and falling. (Video (#29) Exhibit B at 1:00:00). No piece of wet, green produce-either cilantro or parsley-can be seen. ( Id. )[2]

For approximately thirty minutes, Smith sits on the ground as paramedics prepare her transport and sales associates direct foot traffic away from the scene. After Smith is taken away on a stretcher, Daniela Mihaltan, a Walmart associate who witnessed the accident, wipes the floor with paper towels, which she discards. ( Id. ) A maintenance man appears, places orange cones around the site of Smith's fall, and cleans. ( Id. ) He departs; and Mihaltan and Kenny Gentry, an assistant store manager, photograph the area. ( Id. ) In so doing, they discover a piece of wet, green produce-either cilantro or parsley-on the floor. Numerous pictures are taken.

DISCUSSION

The parties request three forms of relief: Walmart moves the court for a protective order limiting Smith's discovery requests and Smith moves the court to extend discovery and impose sanctions against Walmart for the spoliation of evidence. Each request is discussed below.

I. Whether Walmart is Entitled to a Protective Order

The first question raised by the parties' filings is whether Walmart is entitled to a protective order to prevent Smith from discovering information about three prior slip and falls. Walmart argues that it is entitled to a protective order for several primary reasons, but its primary reason-that Smith's request is barred by Eldorado Club v. Graff, 78 Nev. 507 (1962)-prevails. ...


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