Herbert v. Wal-Mart Stores, Inc.

• Decision Date: 14 September 1990
• Docket Number: WAL-MART,No. 89-3572,89-3572
• Citation: Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044 (5th Cir. 1990)
• Parties: , 31 Fed. R. Evid. Serv. 273 Jessie HERBERT, Plaintiff-Appellant v.STORES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1044

911 F.2d 1044

59 USLW 2243, 31 Fed. R. Evid. Serv. 273

Jessie HERBERT, Plaintiff-Appellant v.WAL-MART STORES, INC., Defendant-Appellee.

No. 89-3572.

United States Court of Appeals Fifth Circuit.

Sept. 14, 1990.

Rehearing and Rehearing En Banc

Denied Oct. 16, 1990.

Daniel E. Becnel, Jr., Reserve, La., for plaintiff-appellant.

Sidney J. Hardy, Charles T. Weigel, Jr., Frederick Robert Campbell, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, POLITZ and BARKSDALE, Circuit Judges.

PER CURIAM:

This is a typical diversity jurisdiction slip and fall case.The injured plaintiff prevailed but, unsatisfied with the award, appeals, arguing first that the district court erred in refusing to draw an adverse inference with respect to damages from Wal-Mart's failure to call an expert witness, and second that the court awarded him insufficient damages.Because we hold that the uncalled witness was available to both parties, and because we find that the district court did not err in calculating the damages due, we affirm.

On November 29, 1988, Jessie Herbert, a fifty-seven year old diesel mechanic, slipped in a pool of liquid fabric softener that had leaked onto the floor of the Wal-Mart store near his home in LaPlace, Louisiana.He injured his back and right elbow.After a one day bench trial, the district court found Wal-Mart liable under Louisiana law and awarded Herbert $11,130.43, comprising $8,000.00 for physical and mental pain and suffering, $2,130.43 for past medical expenses, $1,000 for lost wages, and nothing for future medical expenses.

I.

Herbert argues that the district court erred in refusing to draw an adverse inference from Wal-Mart's failure to call a witness purportedly under its control.An orthopedist consulted by Wal-Mart, Dr. Russell Grunsten, referred Herbert to Dr. Roy Staub for a full-body bone scan.Dr. Staub was not listed as a witness by Wal-Mart, nor did Dr. Grunsten's expert report mention either Dr. Staub or the bone scan.Accordingly, the district court forbade Dr. Grunsten to testify as to any opinions he might have formed based on Dr. Staub's report.At the close of the defendant's case, Herbert asked the court to draw an adverse inference from Wal-Mart's failure to call Dr. Staub.The court refused, finding that Herbert had failed to establish that Dr. Staub was either available to or under the control of Wal-Mart as required for such an inference under Louisiana law.¹

The definitive statement of the uncalled-witness rule, sometimes referred to as the missing-witness rule, was issued by the Supreme Court in Graves v. United States² nearly a century ago: "The rule ... is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable."³Even then, the rule was a venerable fixture in the common law courts.As described by Professor Wigmore, it was fashioned in the early eighteenth century ⁴ from the same notion that gave us the best evidence rule and the spoliation doctrine:⁵

The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party.⁶

Through most of its history, the uncalled-witness rule has served two purposes.First, the rule discouraged parties from concealing evidence.The adverse inference drawn under the rule was intended to punish the party who had done so by depriving him of any benefit he might thus have gained.⁷

Second, the rule was an incentive for parties to put on relevant testimony.⁸When the rule was formulated, a litigant could not risk calling a potentially hostile or biased witness, even if he thought the witness (if truthful) would offer favorable testimony.The reason was the voucher rule: A party was deemed to "vouch" for the truthfulness of his witnesses, and therefore was prohibited from impeaching their testimony if it proved unfavorable.⁹Thus, the trier of fact would never hear the testimony of a witness identified with or "controlled"¹⁰ by one of the parties unless that party put the witness on the stand.The uncalled-witness rule encouraged litigants to do so.

In the century that has passed since Graves, the federal courts have applied the uncalled-witness rule almost reflexively.It is commonly invoked in both criminal ¹¹ and civil ¹²cases, and in the latter without regard to whether the dispute is governed by federal ¹³ or state ¹⁴ law.Our research has failed to discover a case in which the continuing vitality of the doctrine has been subjected to careful judicial reflection, despite the enormous changes wrought by the adoption of the Federal Rules of Evidence, and before that by the adoption of the Federal Rules of Civil Procedure.After giving the issue due consideration, we conclude that the uncalled-witness rule has no place in federal trials conducted under the Federal Rules of Evidence and the Federal Rules of Civil Procedure.

Whether state or federal law governs the applicability of the uncalled-witness rule in a diversity case has never been decided.At least two Courts of Appeals have expressly reserved judgment on the issue; ¹⁵ others have applied either state ¹⁶ or federal ¹⁷ law without discussing the matter.Both the parties and the district court in this case assumed that state law governed.We disagree.

First, we note that Federal Rule of Evidence 302 does not require that we apply state law.Rule 302¹⁸ applies only to presumptions.While often labelled as such, there is no dispute that the uncalled-witness rule does not create a true "presumption," but merely permits an inference.¹⁹As such, it falls outside the scope of Rule 302.²⁰

Second, application of state law is not required by the Erie doctrine.²¹The Erie doctrine requires federal courts to apply substantive state law when adjudicating state law claims.Procedural matters, however, are governed by federal law.²²Whether a particular provision is substantive or procedural for Erie purposes is determined by looking to the "twin aims" of the Erie doctrine: the discouragement of forum shopping and the avoidance of the inequitable administration of the laws.²³

The applicability of the uncalled-witness rule is a procedural matter, hence governed by federal law.With respect to forum shopping, it is difficult to conceive of a situation in which the availability of the rule would affect the choice to sue in or remove an action to federal court, as the party invoking the rule will know only well into the course of the litigation--often not until the close of her opponent's case--that a material witness has not been called.With respect to Erie 's second aim, the rule is not "bound up with the definition of the rights and obligations of the parties" under state law ²⁴ so that denying the inference would result in different treatment between those parties suing in state court and those suing in federal court on the same cause of action.²⁵In fact, the uncalled-witness rule bears no more relation to the elements of a state law claim or defense than any other evidence from which the fact finder may infer an evidentiary or ultimate fact.The admissibility of such other proof is governed by federal law.²⁶At the same time, the federal courts have a keen interest in "control[ling] the fact-finding processes by which the rights of litigants are determined in order to preserve the 'essential character' of the federal system."²⁷The applicability of the uncalled-witness rule, therefore, is properly classified as procedural.Federal law governs.

One major change effected by the Federal Rules of Evidence is embodied in Rule 607, which provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness."The intent of Rule 607 was to abolish the voucher rule, ²⁸ thereby removing a major impediment to calling a material witness who may be identified with an adverse party.Under the Federal Rules, witnesses are not "controlled" by either party.Any competent witness whose testimony is not privileged may be called, interrogated and impeached by any party to the litigation.The Federal Rules of Evidence thus enable a litigant to introduce by live testimony evidence that, under the voucher and uncalled-witness rules, might not have been adduced.

It is not difficult to demonstrate how the evidentiary scheme created by the Federal Rules of Evidence, as complemented by the Federal Rules of Civil Procedure, renders the uncalled-witness rule an anachronism.A litigant may use modern discovery procedures to ascertain the identity and proposed testimony of witnesses identified with her opponent.²⁹If the district court finds that a party is concealing the identity and location of persons with knowledge of discoverable matter, the court may impose an appropriate penalty.³⁰If a litigant wishes to call a hostile witness but the witness is unwilling to testify, the litigant may resort to compulsory process.³¹When the litigant has the hostile witness on the stand, she may use leading questions to interrogate the witness, ³² and if necessary impeach the witness under Rule 607 by any of the standard means, including use of the witness's prior inconsistent statements.³³

In short, there is no justification for perpetuating the uncalled-witness rule in civil cases.Accordingly, if unconstrained by precedent, we would hold that in trials conducted under the Federal Rules of Evidence and...