Pugh v. Wal-Mart Stores Inc

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60536
Summary Calendar
DEBBIE LEE PUGH, wife of Joseph Lee Pugh; JOSEPH LEE PUGH,
Plaintiffs-Appellants,
versus
WAL-MART STORES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:99-CV-346-GR
December 19, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Debbie Lee and Joseph Lee Pugh appeal from the district
court's denial of their motion for a new trial. They argue that
the trial court erroneously refused to give their proposed
spoilation of evidence instruction and improperly allowed the use
of Mrs. Pugh's medical records and a lawsuit previously filed by
Mr. Pugh for impeachment purposes on cross-examination.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
We will assume, without deciding, that the proposed spoilation
instruction based on Mississippi law correctly stated the law the
district court was bound to apply.1 The record, however, reveals
that the challenged instruction could not have affected the outcome
of the case because there was no evidence of bad faith destruction
of evidence by the defendant with regard to the destroyed bottle or
the lack of a videotape or photographs.2 As such, the district
court did not abuse its discretion in concluding that the Pughs are
not entitled to a new trial on these grounds.
The Pughs also complain that it was improper and unfair for
the district court to allow the defendant's attorney to cross
examine Mrs. Pugh using her medical records dating from the period
prior to her fall in the instant case. We find no abuse of
discretion in this evidentiary ruling.3 This was proper
1
See Williams v. Briggs Co., 62 F.3d 703, 708 (5th Cir.
1995); see also Stokes v. Emerson Elec. Co., 217 F.3d 353, 356
(5th Cir. 2000). Compare also United States v. Wise, 221 F.3d 140,
156 (5th Cir. 2000) (holding that an adverse inference instruction
based on spoilation of evidence is "predicated on bad conduct"),
cert. denied, 121 S. Ct. 1488 (2001), with Wilson v. State, 661
So.2d 1109, 1115 (Miss. 1993) (noting that a "presumption of
inference arises, however, only where the spoliation or destruction
was intentional and indicates fraud and a desire to suppress the
truth, and it does not arise where the destruction was a matter of
routine with no fraudulent intent" (internal quotation marks
omitted)) (Smith, J., dissenting), and Washington v. State, 478
So.2d 1028, 1032 (Miss. 1985) (same).
2
See Russell v. Plano Bank & Trust, 130 F.3d 715, 719 (5th
Cir. 1997).
3
See Cozzo v. Tangipahoa Parish Council-President Gov't, 262
F.3d 501, 518 (5th Cir. 2001).
2
impeachment by documents which did not need to be entered into
evidence,4 and therefore, by the pre-trial order's own terms, did
not need to be listed in the pre-trial order or turned over to the
Pughs before trial.5 Accordingly, the district court's denial of
the Pughs' motion for a new trial on this ground was not an abuse
of discretion.
The Pughs finally argue that the district court erred in
allowing cross examination of Mr. Pugh based on a prior lawsuit he
filed seeking $20 million in damages for, inter alia, mental
anguish. Plaintiff's counsel, however, did not object to this
evidence at trial, thereby forfeiting the issue for appeal.6
Reviewing only for plain error, we conclude that the trial court's
allowance of this cross examination based on proper impeachment
evidence did not affect the Pughs' substantial rights or seriously
affect the fairness, integrity or public reputation of judicial
proceedings, and, as such, its subsequent denial of the Pughs'
4
Cf. Tramonte v. Fibreboard Corp., 947 F.2d 762, 765-66 (5th
Cir. 1991).
5
See FED. R. CIV. P. 26(a)(1)(B); cf. also Chiasson v. Zapata
Gulf Marine Corp., 988 F.2d 513, 517-18 (5th Cir. 1993) (holding
surveillance videotape of personal injury plaintiff engaged in
daily activity was both substantive and impeachment evidence and so
was not covered by pre-trial order's provision for non-disclosure
of impeachment evidence).
6
See C.P. Interests, Inc. v. Calif. Pools, Inc., 238 F.3d
690, 701 (5th Cir. 2001).
3
motion for a new trial on this ground was not an abuse of
discretion.7
AFFIRMED.
7
See Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 506
(5th Cir. 1999); Highlands Ins. Co. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 27 F.3d 1027, 1031 (5th Cir. 1994).
4