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Galveston Judge Admonishes Wal-Mart For Pretrial Conduct

A federal judge has fined Wal-Mart, accusing the giant discount chain of "nefarious conduct" in a string of lawsuits, including one about to go trial involving the injuries of a girl burned while wearing a garment bought at one of its stores.

Galveston U.S. District Judge Sam Kent, calling its conduct "grossly inappropriate," ordered the chain to pay $1,000 to attorneys for a Pearland family whose 8-year-old daughter was playing with a lighter when a Wal-Mart garment she was wearing caught fire in August 1997.

More significant than the fine, however, is Kent's ban on testimony from an expert liability witness the judge said Wal-Mart belatedly put on its witness list.

Wal-Mart has engaged in "repeated and protracted concealment of relevant documents and witnesses" from the family's attorney during trial preparation, Kent said. The trial is scheduled to begin Tuesday.

Wal-Mart spokesman Bill Wertz on Tuesday called Kent's sanctions "completely inappropriate."

He said Wal-Mart made every effort to, among other things, identify the garment's manufacturer within time limits the court set.

"It would have been in our interest to produce that evidence because, otherwise, we end up having to defend the suit without a manufacturer involved," Wertz said. "Unfortunately, it was an item imported back in 1995 or 1996, when our records were not kept as well as we wish they had been."

The family says the garment, described variously in court documents as a child's playsuit, pajamas and an adult garment, was dangerously flammable.

Wal-Mart has denied that claim and allegations that the chain was negligent for selling the product.

Kent cited nine other cases in which state and federal judges have lambasted Wal-Mart or imposed financial sanctions for breaking court rules in recent years.

State District Judge James Mehaffy in Beaumont fined the company $18 million in 1999 "because Wal-Mart withheld relevant evidence in a personal injury case," Kent said.

Wertz said Mehaffy voided the fine, however, after Wal-Mart settled the case before trial.

Kent characterized the nine cases as an "appalling list of arrogance" and said Wal-Mart has engaged in "patently duplicitous behavior" in his court before.

"Within just the past two years, for example, the court had before it a case in which a television set fell from a shelf in the video department of a Wal-Mart store and landed upon a customer's head," Kent said. "The video department was operated by a lessee. Wal-Mart had the unmitigated gall to inform this court that it could not determine the identity of the lessee - a party who leased space within Wal-Mart's very own store.

"Unfortunately, nefarious conduct is all too common in lawsuits in which Wal-Mart is a party."

"And now, having had its hand called, it whines," he said, referring to Wal-Mart's pleas that he withdraw the sanctions.

Wertz said the company, after the Beaumont case in early 1999, has been trying to correct problems in its handling of lawsuits.

"We've acknowledged mistakes in the handling of a number of lawsuits, and we've put into place a number of procedures to make sure that this doesn't happen again," Wertz said.

Kent said, however, that Wal-Mart attempted to thwart the discovery process in his court in 2000.

Wal-Mart has "unabashedly abused the plaintiff" in the product liability case involving Megan Wilson, now 11, who suffered severe burns on her back and thighs, Kent said in this week's order.

While the monetary sanction was only $1,000, Kent also ruled that since Wal-Mart stalled for months before identifying the manufacturer of the garment the girl wore, Wal-Mart itself will be deemed the manufacturer at trial.

Wal-Mart attorneys contended that if any company is liable for injuries, it is the manufacturer.

Kent also decided not to allow testimony by a key Wal-Mart expert witness expected to tell a jury that the garment met safety standards.

That ruling could make it easier for Friendswood lawyer Tony Buzbee to convince a jury that the garment was dangerously flammable and Wal-Mart was negligent for selling it.

"It's been stonewall all the way," Buzbee said, referring to Wal-Mart's pretrial conduct.

"I'm just proud that this has been brought to light and they've been punished and that the working person has a chance against this international corporation," said Buzbee , who had complained repeatedly to Kent.

He filed the case in August 1999.

Kent's sanctions address Buzbee's claims that Wal-Mart recordkeepers continued to destroy files on cases similar to Megan's into June 2000. Buzbee said Wal-Mart failed to reveal the name of the Chinese garment maker until December 2000, when the trial was originally scheduled.

Megan's parents are Gary and Jerri Wilson. The father is a plumber and the mother a homemaker. Megan has two sisters, 14 and 17, and a brother, 10, Buzbee said.

Wal-Mart has claimed that the parents were negligent for letting the girl have access to a cigarette lighter and should share at least 51 percent of any blame for their daughter's lifetime scars.

The parents asked for $10 million in damages from Wal-Mart for their daughter in their original court petition.

 

Kevin Moran Staff
The Houston Chronicle
February 14, 2001
Galveston