Legal Document: Tashawn Jackson Plaintiff vs. Crystal Burney, et al Defendant

On April 27, 2021 a Motion to Strike - Party: Plaintiff Jackson, Tashawn was filed involving a dispute between Jackson, Tashawn, and Burney, Crystal, Walmart, Inc., Wal-Mart Stores East, Lp, for 3 in the District Court of Broward County.

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Filing# 178804379 E-Filed 08/02/2023 05:02:43 PM

INTHE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
TASHAWN JACKSON,

Plaintiff, CASENO- 21-008489 CACE (13)

VS.

WAL-MART STORES EAST, LP and
CRYSTAL BURNEY,

Defendants.
i

PLAINTIFF'S RESPONSE AND MOTION TO STRIKE DEFENDANT'S MOTION FOR
ADVERSE INFERENCE INSTRUCTION AND SANCTIONS

COMES NOW Plaintiff,
TASHAWN JACKSON, by and throughthe undersignedcounsel
and pursuant to Fla. R. Civ. P. 1.140 and 1.360 files this Response and Motion to Strike regarding

Defendant's late filed Motion for Adverse Inference Jury Instruction and Sanctions for Spoliation

of Evidence, and would state the followingin support thereof:

1. This is case involving injuriessuffered in a slipand
a premises liability fall on

Defendant's premises on March 18, 2020.

2. The lawsuit in this case was filed over 2 years ago on April 27,2021.

3 On October 19, 2022, this Court entered a UNIFORM TRIAL ORDER which

established discoveryand trial deadlines for a trial periodcommencing September 11, 2023, with

calendar call to occur on August 28,2023.

4. On July 31, 2023, Defendants filed their Motion for Adverse Inference Instruction

See Defendants Motion attached hereto as Exhibit "A". Said motion
'
andSanetions for Spoliation.

is clearlydispositiveas it asks this Court to strike Plaintiff's pleadings.

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/02/2023 05:02:43 PM.****
5. Pursuant to the above-described Trial Order.

VII. MOTIONS:
1. Motions: must be
Dispositive filed and heard no later than (45) days before
forty-five
Calendar Call.

6. As has occurred with numerous trial deadlines,Defendant filed this motion after

order and therefore this motion should
time-frame delineated in this Court's pre-trial
the requisite

be stricken.

7. Should this Court permit Defendant to argue this motion then Plaintiff would

respond as follows:

8 Contemporaneously with this Motion, Defense filed a Motion in Limine to prevent

Plaintiff Nike flip-
from using relevant and admissible evidence in the form of exemplar/replica

flopsto assist in Plaintiff's presentationof his case and combatting the Defendants' knowing and

clear falsehoods concerning the footprints
Plaintiff left on the floor after walking through the

batteryacid. In the motion in limine Defendants say that Plaintiff can't even prove he was wearing

and then in the
the flip-flops same breath in this motion use Plaintiff's testimony to establish that

he was wearing the Nike flip-flops.
This clearlygoes to show that the Defendants' requests in both

motions is disingenuous.

9- The case-law cited by Defendant is also used by Plaintiff in Plaintiff's Motion for

which was timely filed on
Spoliation, May 31, 2023.

10. Defendants want this Court to sanction Plaintiff for failing
to preserve a pairof flip-

flopswhich contained a corrosive substance on them. To request same is yet another non-sensical

request by the Defendant. It would have requiredPlaintiff to potentially
subjecthimself to more

harm or find a while he is being treated
way to safelystore the flip-flops for followingthis
injuries

slipand fall. In fact,Plaintiff suffered a burn on his arm from acid that touched his skin as he was
on the floor. Tashawn Jackson Deposition Transcript:

TASHAWN JACKSON January 05,2023
JACKSON vs WAI.-MART 57

1 A. No, sir.

2 0. Did you have any bruises on your body on March

3 18th, 2020?

9 A. No, just from where acid burned my arm a

5 little bit.

6 Q. For the what?

7 A. Where the acid I stepped in burned my arm a
8 little bit.

9 Q. Okay. So you had acid that burnt your arm?

10 Which arm is that?

11 A. Right arm.

11. Clearlythe failure to preserve the was neither intentional nor willful and
flip-flops

was in fact advisable and necessary. The notion is simply untenable, and Plaintiff should not be

sanctioned in any way including having Plaintiff's pleadings stricken nor giving an adverse

inference instruction.

12. Defendants cannot claim that they are prejudicedby Plaintiff's
Additionally, failure

to preserve the as the Defendants' case has always rested on the premise that the
flip-flops

footprintswere there prior to Plaintiff's fall and more importantlythat Plaintiff allegedly

committed a fraud by throwing himself onto the floor. This has all been allegedin Defendants'

Motion to Dismiss
Motion for Final Summary Judgment or Alternatively Plaintiff's Complaint for

Fraud Upon the Court which was filed on June 4,2023.

13. Defendants only argument that it is detrimental to their case is in some inability
to
retain an expert to perform a scientific analysisof the "threading"(sp) on Plaintiff's shoes

compared to the depictedin the photographs.Defendants' have always contended
footprints that

were always there,and they have the testimony of former employee, Marilyn White,
the footprints

to allegedlysupport that. There is nothingpreventingDefendants from continuingto argue same,

even despitethe mountain of evidence that says otherwise.

14. Therefore, Defendants are unable to prove that the missing flip-flops
are essential

to opposing Plaintiff's case. See Jordan ex rel. Shealey,821 So.2d at 347 (concludingthat while

"[1]awyers are entitled to argue adverse inferences from the evidence as part of their closing

arguments," an adverse inference jury instruction is improper where there was no showing that

"the missing evidence [was] essential to the opposing party'sprima facie case");see also Martino

v. Wal-Mart Stores, Inc., 835 So.2d 1251, 1256 (Fla.4th DCA 2003) (inferencesshould be limited
to the arguments of counsel and not form the basis of instruction to the jury);Fla. Std. Jury Instr.

(Civ.)2.3 (in addressing the failure to produce a witness, observing in part: "[w]hile it may be

permissiblein some circumstances to instruct the jury regarding inferences arisingfrom a party's

failure to produce a witness ... the committee conceives that such inferences are more properly

referred to in counsel's argument. The committee recommends that no charge be given").

15. Defendants only filed this motion after Plaintiff revealed the photograph merging

the bottom ofthe exact exemplar/replica and the photographstaken ofthe footprints
flip-flops thus

proving Defendants have falsified their story. See Photograph showing exemplar/replica

combined with photograph of the footprintattached as Exhibit "B". Tlds was not an issue for this

case until the evidence revealed that Defendants employees have likelyfalsified their testimony.

As in Plaintiff' s response to Defendant's Motion in Limine, this is a topic best handled on cross

examination and in closingargument.
WHEREFORE, Plaintiff, TASHAWN JACKSON, respectfully
requests this Honorable

Court Strike Defendants' late filed Motion or in the alternative, DENY it with prejudice,and for

any and all other relief this Court deems justand appropriate.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy ofthe foregoinghas been electronically
ind
filed portalon
and served through the e-filing this 2 day of August, 2023 to: D. Terrance Hill,

Esquire,and Frank L. Madia, Esquire,Marshall Dennehey, 100 NE 3rd Avenue, Suite 1100, Fort

Lauderdale, FL 33301, dthill@mdwcg.com; flmadia@mdwcg.com.

STEINGER, GREENE & FEINER, P.A.
2727 N.W. 62 nd Street
Fort Lauderdale, FL 33309
Telephone: (954) 491-7701
Facsimile: (954) 492-5642
Email: apapero@injurylawyers.com
cskuratovskiy@injurylawyers.com
Attorneys for Plaintiff

/s/Aaron M. Papero, Esq.
Aaron M. Papero, Esquire
Florida Bar No.. 59782
EXI IIBIT ,,
662
Filing# 178576650 E-Filed 07/31/2023 02:22:01 PM

IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
TASHAWN JACKSON,
CASE NO.: CACE 21-008489

Plaintiff.
y

WAL-MART STORES EAST LP and
CRYSTAL BURNEY,

Defendants.
'

DEFENDANTS', WAL-MART STORES EAST LP. and CRYSTAL BURNEY'S
MOTION FOR ADVERSE INFERENCE JURY INSTRUCTION AND SANCTIONS FOR
SPOLIATION OF EVIDENCE AND INCORPORATED MEMORANDUM OF LAW

Defendants,Wal-Mart Stores East LP ("Wal-Mart") and CrystalBumey ("Burney"),
by

and through their undersignedcounsel, file this Motion for Adverse Inference Jury Instruction

and Sanctions for Spoliationof Evidence and IncorporatedMemorandum
of Law against

and in support thereof state as follows:
Tashawn Jackson ("Plaintiff),
Plaintiff,

INTRODUCTION

brings this personal injuryaction arisingout of an allegedslipand
Plaintiff fall that

occurred in the early evening hours on March 18, 2020, at the premises of a Wal-Mart store

located at 301 S. State Road 7, Hollywood, Broward County, Florida. At his deposition,
Plaintiff

testified that he was at the store shopping in the automotive aisle when he allegedlysl*ped and

fell on the floor due to the presence of batteryacid on the bottom of his black Nike flip-flops.

Rather than preservingthis crucial evidence of the black Nike flip-flops,
according to his

out on the same
testimony,Plaintiff destroyed the physical evidence by throwing the shoes

1
secure any video
evening of the loss. Moreover, Plaintiff did not take any photographs and/or

piecesof physicalevidence in
footage of the shoes before discardingone of the most important

this case.

Plaintiffs actions present a textbook case and his conduct should be subject
of spoliation

to sanctions, includingthe striking the jury with an adverse
of Plaintiff' s pleadingsor providing

inference instruction related to the shoes that Plaintiff destroyedand/or discarded.

The destruction of this physicalevidence goes to the crux of Wal-Mart and Burney's

an expert to examine and perform
defenses and prevents Wal-Mart and Burney from retaining

and Burney from
testingof the subject shoes. The spoiled evidence precludes Wal-Mart

s shoes as compared to the
obtainingan expert analysisof the thread markings of Plaintiff

on
footprints the flooringdepictedin the photographs at the time of the incident. Importantly,

Plaintiff now seeks to claim that these depictedin photographsof the
footprints floor were his

stacks of inferences
By doing
prints. so, Plaintiff is asking Court or jury to draw impermissible

that the depicted in the photographs on the date of
footprints loss were from the shoes that

Plaintiff destroyed and/or discarded when no record evidence exists to prove this allegation.

Moreover, the destroyed evidence is critical since there is no record evidence that Plaintiff

fell on any batteryacid or liquid, a foreigntransitory
substance,therebyresulting
slippedand i.e.,

in the allegedslipand fall. Plaintiff stated in his deposition slippedand
that before he allegedly

he walked
fell, down the subjectaisle and observed a batteryon the floor "but no batteryacid or

other liquid substance." See Plaintiys Depositionat 80: 15-22, 81:3-11; 83:16-25; 84:1-25.

Plaintiff also testified that when he walked past the battery,he did not experienceany

"stickiness" or with his footingas he continued to walk down the aisle toward the
"slipping"

Deposition at %0: 15-22, 81:3-11; 83:16-25; 84:1-25.
endcap. See Plaintiff's
He attested that he

2
slippedand fell at the oppositeendcap in the same aisle "where there was no battery
allegedly

acid or other liquidsubstance present"and that the subjectarea where he allegedlyfell was

"clean". Instead,Plaintiff impermissiblyseeks to ask both this Court and the jury to speculate

and stack inferences that which caused
he steppedon batteryacid when he walked by the battery,

and should not, be
him to slipand fall,based upon spoiledphysicalevidence. This cannot,

request that the Court grant
allowed under Florida law. Thus, Defendants respectfully this

Motion and strike Plaintiff s pleadings,or in the provide an adverse inference
alternative,

instruction to the juryregardingPlaintiff s destroyedphysicalevidence. See Excerptsof Plaintiff

Tashawn Jackson's DepositionTestimonyattached hereto as Exhibit "A."

FACTUAL BACKGROUND

On April27, 2021, Plaintiff initiated this negligenceaction againstWal-Mart and Burney

for to maintain its premisesin to correct a
a reasonablysafe condition,failing
failing
negligently

and
dangerous condition, for failure to warn. Complaint.Thereafter,on
See Plaintltl's May 24,

Defendants Wal-
2021, Wal-Mart and Burney filed their Answers and Affirmative Defenses.

Mart and Burney asserted,among other defenses,that Plaintiff failed to state a cause of action,

denied any defect or unsafe condition,and asserted that the subjectpremiseswere maintained in

a reasonablysafe condition and, in doing so, exercised all reasonable policiesand proceduresfor

maintenance in the area of the incident. See Defendants Answer and 40?rmativeDefknses.
'

On who testified about the
January 5,2023, Wal-Mart and Burney deposed the Plaintiff,

shoes that he was wearing on the date of the incident,which he described as black Nike flip-

flops.The followingexchange took place:

Q: And you claim that you had batteryon your shoes; is that right?

3
A: That's correct.

And what kind of shoes were you wearing on the date of the incident?
Q:

A: Nike - - Nike Sandals - -
flipflops,I mean. I'm sorry.

Q: And do you stillhave those flip-flops?

A: No, sir. They broke when I fell.

Q: You don't have them anymore?
So you discarded those flip-flops?

A: No, sir.

Q: Did you ever take any photographs of to see if there
the flip-flops was
batteryacid on them?

A: No, sir. I knew it was my from lookingat
flip-flops the shoe printon the
floor from the bottom of my shoe.

Q: Okay. Do you recall seeingfootprints
in the floor at the time you fell?

A: I saw footprints
after I fell.

Q: After you fell,okay.

A: There were no footprints
before I fell.

looked me.
Brieflydescribe what the footprints
like for
Q:

A: The bottom ofmy Nike fl*-flops.

Q: Was it a lightcolor,correct?

A: Yeah.

Q: And when you went to the inspectionwith your attorney a few weeks
store
on the floor at that time?
ago, did you notice any footprints

A: Yeah. They was stillthere.

Q: The footprints
that were stillthere were the ones that you claim were from
your shoes,correct?

A: Yes, sir. They came from my shoe.

4
See Excerpt ofPlaintiff Tashawn Jackson's DepositionTestimonyfrom Page 87:15
-
Page 88:24,

"
attached hereto as Exhibit "B.

Plaintiff also testified as follows at his deposition:

testified earlier that you had Nike flip-flops.
Is that what
Q: Okay. Now, you
they are?

A: Yes, sir.

Q: And what kind were they?
of Nike flip-flops

A: Just regularNike flip-flops.

Q: And what size shoe are you?

A: Like - -
like,a 12.

Q: do you remember?
And when did you get rid of the flip-flops;

A: I got rid of them the same nightI fell. Because they were broken.

Q: Same nightyou fell?

A: Yes.

See Excerpt of Plaintiff Tashawn Jackson's DepositionTestimony on Pages 108:9 -21, attached

hereto as Exhibit

on the
Plaintiff stated that footprints
Additionally, floor at the subjectstore came from the

he testified:
batteryacid that ended up on his shoes on that date. Specifically,

Q: Do you know for certain whether the liquidthat you claim was on your
shoes came from the actual batteryon the floor?

A: Yes.

Q: How do you know that?

A: Because it wasn't there before - - There were no footprints
before the spill.
- -
before the before the spill,
only after.

Q: I'm going to share a screen with you and show you - -

5
Mr. Madia: I'm going to have this marked as Defendant's Exhibit A for
identification.

See Excerpts of Plaintiff Tashawn Jackson's Deposition Testimony, includingDefendant's

Exhibit "A" marked for identification to Plaintiffs attached hereto
depositiontranscript, as

Exhibit "D" at Pages 93:24, 94:10, 96:4. Plaintiff repeatedlystated,under oath, that the

in the photographsmarked as Exhibit A
footprints to the were
deposition his.

Q: Okay. All right. So I'm going to show you what's been marked as

Defendant' s Exhibit A. It's Page 1 of 5. You here in this
see a footprint
exhibit?

A: Yes.

Id at Page 95:3-6 of Exhibit C.

Q: Okay. Is it your test
- - is it your testimonythat that was your footprint?

A: It looks like it.

Q: Okay. And here is Page 2 of 5. It looks like a footprinthere. Is that your
testimony,that' s your footprint?

A: Yes.

Id at Pages 95:23,96:4 of Exhibit E.

MEMORANDUM OF LAW
I. PLAINTIFF ENGAGED IN INTENTIONAL AND/OR NEGLIGENT

SPOLIATION BY DESTROYING OR DISCARDING THE PHYSICAL EVIDENCE OF

HIS FOOTWEAR AND SHOULD BE SANCTIONED.
occurs when a party or
to an action has "lost,misplaced, evidence.
destroyed"
Spoliation

See Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342,345, n.2 (Fla.2005). When such loss,

misplacement,or destruction of evidence is trial courts are
intentional, to relyon sanctions found in

6
Fla. R. Civ. P. 1.380(b)(2).Id at Public Health Trust of Dade County v. Valcin, 501
346 (citing

So. 2d 596, 599 (Fla. or even inadvertent,destruction of
1987)). In other words, intentional,

evidence should be treated as a discoveryviolation subjectto sanctions. See Nationwide Lift

Trucks, Inc. v. Smith, 832 So. 2d 824,826 (Fla.4th DCA 2002). The appropriateness
of sanctions

for to preserve evidence depends on (1) the willfulness or bad
failing faith of the responsible
party,

(2) the extent of prejudicesuffered by the other party,
and (3) what is requiredto cure the

Harrell v. Mayberry, 754
prejudice. So. 2d 742 (Fla.2d DCA 2000).

Before exercisingany sanction for spoliationof evidence,Florida courts have generally

test in level of sanctions to apply in
determiningthe appropriate
recognizeda three-part
threshold

such circumstances: (1) whether the evidence existed at had a
one time, (2) whether the spoliator

an opposing party
duty to preserve the evidence,and (3) whether the evidence was
critical to

facie case or a defense. Golden Yachts, Inc v. Hall, 920 So. 2d
being able to prove its prima

777, 781 (Fla.4th DCA 2006).
As an initial threshold question,the Court may not order a discoverysanction againsta

questionexisted one time.
party without
spoliating first determiningwhether the evidence in at

See Jordan ex rel. Shealey v. Masters, 821 So. 2d 342, 347-48 (Fla.4th DCA 2002) (holdingthat

the trial court's issuance of an adverse inference of a
against the defendant for spoliation

videotapewas a reversible error when had never proven the existence of the
the plaintiff

videotape).A party seekinga discoverysanction for spoliation
bears the burden of proving that

the evidence once existed. Id at 347. testified
Here, this questionis met, as Plaintiff specifically

that at the time of the allegedincident. See Exhibit "B"
he was wearing black Nike flip-flops

from Page 87:15 -
Page 88:24.
Excerpt of Plaintiff Tashawn Jackson's Deposition Testimony

Thus, the footwear Plaintiff was wearing existed at one time.

7
Secondly, a duty to preserve evidence arises when a party should reasonablyforesee

League of Women Voters of
litigation. Fla, v. Detzner, 172 So. 3d 363, 391 (Fla.2015).

However. even if the did not have a duty to preserve evidence, an adverse inference
spoliator

instruction is warranted if the spoliatordiscarded or destroyed evidence. Id Again, this is

in which evidence has been destroyed,
either inadvertently are
or intentionally,
because "[c.]ases

discovery violations that may be subjectto sanctions" Id, citingNationwide Lfe Trucks, Inc.,

832 So. 2d at 826. the Court further reasoned, "An adverse inference
Additionally, may arise in

any situation where potentially
self-damagingevidence is in the possessionof a party and that

see also Martino, 908 So. 2d at 345, n.2; Golden
party either loses or destroysthe evidence". Id.;

Mgmt. Co. of Minn.
Yachts, Inc.,,920 So. 2d at 781 ; Am. Hospitality
v. 904 So.
Hettiger, 1d 547,

549 (Fla.4th DCA 2005) (notingthat a "defendant could be charged with
a duty to preserve

evidence where it have foreseen the claim").
could reasonably

In this present case, Plaintiff was wearing the evidence at the time of the allegedslipand

fall that to this Indeed, Plaintiff,
litigation. "I got
by his admission, testified, rid of
gives rise

them the same night I fell." See Ex. B. Plaintiff had a duty to preserve the evidence once

reasonablyforeseeable,but
was reasonably foreseeable. Here, not only was litigation
litigation

Plaintiff knew or should have known of the evidence in a subsequentslipand
o f the significance

fall
was
claim or lawsuit. The destruction of the physicalevidence, the black Nike flip-flops,

highly relevant not only to the Plaintiff s and bringing forth his claim, but
allegations to the

defenses of Wal-Mart and Burney. As set forth held
above, the courts also repeatedly that

sanctions are even
appropriate if a party is not under a duty to preserve the evidence.

evidence was criticalto an opposing party proving its case or
Third, whether the spoliated

imperfect,
defense,"is unavoidably evidence,[theCourt] can
since,in the absence of the destroyed

8
only venture guesses with varyingdegreesof confidence as to what
that missingevidence may have

revealed." Adamson v. R.J Reynolds Tobacco Co., 325 So. 3d 887, 895 (Fla.4th DCA 2021)

(quotingKronisch v. United States, 150 F.3d 112, 127 (2d Cir. 1998)). Whether sanctions are

when a party fails to preserve evidence in its custody depends on the willfulness or bad
appropriate

for the
if any, ofthe party responsible loss destruction of
of the evidence. However, negligent
faith,

evidence may also warrant sanctions. See Martino, 908 So. 2d 342,346 (holdingthat sanctions for

are permissibleeven where
spoliation the evidence is as opposed
negligentlydestroyed, to

"When evidence
destroyed).
intentionally is destroyedin bad faith (i.e., or willfully),
intentionally

that fact alone is sufficient to demonstrate relevance. By contrast, when the destruction is negligent,

Adamson, 325 So. 3d at 897
relevance must be proven by the party seeking the sanctions."

(internalcitations omitted).The party moving for a discovery sanction must make "some

showing indicatingthat the destroyedevidence would have been relevant
to the contested issue."

Adamson, 325 So. 3d at 897.

Plaintiff and/or negligentlydestroyed material evidence at the center of
intentionally

Defendants Wal-Mart and Bumey's defenses and Plaintiff s prima facie case. Plaintiff discarded

and/or destroyed his shoes, thereby preventingWal-Mart and Burney from having an expert

examine and test the physicalevidence. This intentional and/or careless behavior and the

willfulness of Plaintiffs decision demand the harshest of sanctions since the allegedbatteryacid on

action under
impacts Wal-Mart and Burney's defenses to Plaintiffs negligence
the shoes directly

Florida's TransitorySubstance Statute. This evidence is critical to Wal-Mart and Burney's

affirmative defenses.

Plaintiff claims he slippedand fell due to the presence of batteryacid on the bottom of the

he was wearingat the time of the incident. Plaintiff s entire prima facie case
black Nike flip-flops

9
rises or falls on the argument that his shoes,the black Nike flip-flops, acid causing
contained battery

him to slipand fall. Further,Plaintifftestified that the on the
footprints floor depictedin the

were from the
his footprints acid.
battery
photographsobtained by Wal-Mart duringits investigation

At the core of Wal-Mart and Burney's defense is that the he saw on the
footprints floor did not

come from his shoes. Consequently,the destruction of the footwear is critical to Wal-Mart and

to rebut Plaintiff s assertions that the on the
footprints floor were
Burney's defenses in being able

he was wearing on the date of the
from the Nike flip-flops incident.

to prove
Additionally, his negligenceclaim, Plaintiff is relyingalmost entirelyon his

unsubstantiated testimonythat batteryacid was on his footwear; he slippedand fell due to the

acid on
mentioned claimed battery his footwear; and that the on the
footprints floor were
previously

from his shoes due to the batteryacid on them. In further support,Plaintiff claims that the footprints

depictedin several photographson the date of loss from his shoes. Without the
were footprints

actual evidence - the shoes Plaintiff was wearingat the time of the alleged
incident - Wal-
physical

the shoes
Mart and Burney are preventedfrom examiningor testing that Plaintiff destroyedand/or

discarded. Specifically,
an expert
Wal-Mart and Burney are preventedfrom retaining to perform a

scientific analysisof the threadingon Plaintiff's shoes compared to the depictedin the
footprints

As a result,
Wal-Mart and Burney are handcuffed from conclusively
photographsof the flooring.

refutingthat Plaintiff did not have batteryacid on the bottom of his footwear which proximately

depictedin the photographsfrom the floor
caused the allegedslipand fall,and that the footprints

were not from Plaintiff s shoes at the Defendants,the Court,
time of the subjectincident. Instead,

Plaintiff to make impermissible of
stacking inferences to
and the jury,are all being asked by the

reach this conclusion without any physicalevidence to the contrary because he discarded or

it.
destroyed

10
pleadingsin their or alternatively,
entirety,
Therefore,the Court should strike Plaintiff s

order an adverse instruction to the jury on the destroyedevidence of Plaintiff s black Nike flip-

severe and Plaintiff is unable to cure it.Without
flops.Simply put, the extent of the prejudiceis

access to this critical pieceof evidence,Wal-Mart and Bumey have suffered and will continue to

unless and until the sanctions of striking
Court orders appropriate
suffer substantial prejudice

Plaintiffs providingthe jury with an adverse
or alternatively, inference instruction on
pleadings

Plaintiff's destruction of the shoes Plaintiff has severelyprejudicedWal-Mart and Burney by

critical evidence (Nike Black FlipFlops)in his possessionon the date
discardingand/or destroying

ofthe incident.

at a minimum, issue an
Accordingly,this Court should strike Plaintiff's pleadingsor,

to Wal-Mart and Burney that
Plaintiff to cure the prejudice
adverse inference instruction against

Plaintiff created.

II. IN THE ALTERNATIVE, AN ADVERSE INFERENCE INSTRUCTION MUST BE
PROVIDED TO THE JURY THAT IF THE EVIDENCE DESTROYED WERE

AVAILABLE, THE JURY MAY INFER THAT SUCH PHYSICAL EVIDENCE WOULD

BE ADVERSE TO THE PLAINTIFF.

An adverse inference instruction againstthe spoliatingparty is often an appropriate

discovery sanction, even where the Court cannot answer all three-threshold questions in the

affirmative. See Adamson v. RJReynolds Tobacco Co., 325 So. 3d 887,895 (Fla.4th DCA 2021)

(An adverse inference may arise even jn the absence of duty on the part of the spoliating
party to

Golden Yachts,
172 So. 3d at 391 (Fla.2015) (citing
preserve the missing evidence);Detzner,

Inc, 920 So. 2d at 781 (Fla.4th DCA 2006) ("an adverse inference may arise in any situation

self-damagingevidence
where potentially is in the possessionof a party and that party either

11
Yet here, as set forth above, the three-part met.
test is clearly
loses or destroysthe evidence.")).

that not all three parts are met, which it should not, the law in
However, should the Court find

all three parts of
order sanctions even if a party does not satisfy
Florida is clear that a Court may

the analysis. As such, an adverse inference instruction would be an appropriate

Case Info

Judge

Robinson, Michael A. Track Judge’s New Case

Case No.

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Document Filed Date

August 02, 2023

Case Filing Date

April 27, 2021

County

Parties

Bateman, Jason Michael Attorney for the Plaintiff
Burney, Crystal Defendant
Hill, Donald Terrance Attorney for the Defendant
Jackson, Tashawn Plaintiff
Walmart, Inc. Defendant
Wal-Mart Stores East, LP Defendant
Aaron Papero Attorneys for Plaintiffs
Frank Madia Attorney
J Page Attorney
Frank Madonia Attorney
Steven Robbins Attorney
David Gonzalez Attorney
Eric Reichenberger Attorney
Jason McLaren Attorney
Peter Somera Attorneys for Defendants
Aaron McLaughlin Attorneys for Defendants
Natalie Jones Attorney
Katherine Neal Attorney

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