12:04, January 08 181 0 abajournal.com

2020-01-08 12:04:05
7th Circuit sanctions lawyer $1,000 in Walmart lawsuit photo flap

Walmart floor

Shutterstock

An Indiana lawyer who used Walmart’s own photos to support his client’s slip-and-fall case against the retailer has been sanctioned $1,000 because he maintained the photos were taken on the date of the fall without a sufficient factual basis.

The Chicago-based 7th U.S. Circuit Court of Appeals sanctioned lawyer James Ayers of Crawfordsville in a Jan. 3 order that criticized his “weak” argument supporting his claim.

The court became suspicious because the date stamp had been removed on one of the two photos submitted in an appendix on appeal. Both photos showed the condition of the Walmart floor and one was originally dated Jan. 12, 2017, which was 11 days after Ayers’ client allegedly slipped on a hanger and fell. Ayers said the photos showed debris on the floor on the date of the client’s fall, showing that Walmart had actual or constructive notice of the dangerous condition.

The appeals court ordered Ayers on Nov. 26 to show cause why he shouldn’t be sanctioned. Ayers said in a Dec. 10 response that the date stamp disappeared when the photos were scanned and reproduced by his assistant. In any event, he said, the Jan. 12 date was on Walmart’s mounting sheet, not the photo itself, and Walmart never argued that the photos were taken on the later date.

Ayers maintained he had a good faith basis for maintaining the photos were taken on New Year’s Day, 2017, the day his client fell and injured herself. The client had said the photos, showing hangers on the floor, reflected the condition of the site when she fell. In addition, Walmart had turned over the photos in response to a request for its investigative files.

The appeals court was unpersuaded. It said he should have taken responsibility for the missing date rather than “blame-shifting,” and he failed to perform due diligence.

“Attorney Ayers argues he had a good-faith basis for contending that the photographs were taken the day of the accident,” the appeals court said. “This argument is weak. The closest attorney Ayers comes to a valid point is when he argues that because Walmart produced the photographs along with others taken the day of the fall, he could infer that the photographs at issue were also taken that day. But if attorney Ayers represents that the photographs depicted the scene on the day of the fall, he must have a basis for such a representation, which he does not.”

Ayers has self-reported the misconduct allegations to the Indiana Supreme Court Disciplinary Commission.

Ayers did not immediately respond to an email requesting comment.

Hat tip to Law360, which reported on the sanction.