7th Circuit says lawyer intentionally altered photos, threatens sanction

An order to show cause has been entered against a Crawfordsville attorney whom the 7th Circuit Court of Appeals says intentionally altered photographs entered into the record in a slip-and-fall case. The appellate court also raised the possibility of sending the matter to the Indiana Supreme Court Disciplinary Commission.

In Linda Waldon and Steve Waldon v. Wal-Mart Stores, Inc., 19-1529, Linda Waldon alleged she slipped and fell after stepping on fallen plastic hangers while browsing in a Crawfordsville Walmart, injuring her back, neck and head. Waldon sued Wal-Mart Stores Inc., alleging the company failed to provide a safe environment for its shoppers and was therefore liable for her injuries.

Waldon and her husband, Steve Waldon, asserted before the Indiana Southern District Court that she had no knowledge of how long the hanger was on the floor or whether Walmart knew the hanger was there, nor did she know that an employee had visually inspected the same area just minutes before without seeing any hazards on the ground. The district court instead determined Walmart had presented evidence that it had no actual knowledge of the purportedly dangerous conditions, but the Waldons claimed the employees lied, submitting two photographs allegedly depicting “substantial debris” where Linda fell.

Disregarding the photos for their failure to show that the conditions depicted were the same or similar to those on the day of the accident, the district court concluded the Waldons’ premises-liability claim failed as a matter of law and entered summary judgment for the retailer.

The 7th Circuit affirmed, finding, among other things, that “(n)one of  Waldons’ arrows hit their mark” regarding the issue of the employee’s testimony and concluding Linda’s challenge was insufficient to overturn the district court’s decision because she offered “no evidentiary support for their assertion that the Wal-Mart employees’ affidavits were incredible, self-serving statements that cannot support summary judgment.”

The 7th Circuit then raised the “troubling point” that the Waldons’ counsel appeared to have altered the photographs from the district court record. The appellate court asked who had altered the images and why, noting discrepancies in the date stamps on the photos.

“Waldons’ counsel admits the date stamps were deleted when the photos were reproduced in their separate appendix for this court. Counsel places the responsibility for ‘the differing markings’ on a legal assistant who created the appendix and claims that when the photos were scanned in their office the date stamp disappeared. But legal ethical rules impose broad supervisory responsibilities on attorneys over their staff, and prohibit lawyers from disavowing responsibility for an assistant’s conduct,” Judge Michael Brennan wrote.

Persuasive evidence was presented by Walmart that the photos were intentionally altered, the 7th Circuit continued,  noting the pages accompanying the altered photos were the only handwritten pages from a 248-page appellate appendix. Those pages also lacked the district court’s filing information across the top.

“Even more distressing is Waldons’ counsel’s representations to this court about these photographs. The Waldons contend the photos are their ‘best evidence’ of actual and constructive notice. In the Waldons’ appellate brief their counsel repeatedly says the photos are from the date of her injuries. And at least twice at oral argument Waldons’ counsel misrepresented that the photographs were taken the day of the incident,” Brennan wrote. “His untruthful statements to this court in writing and at oral argument about when the photographs were taken and that they depict the fall location on January 1, 2017 trouble us considerably, including because the Waldons rely so heavily on the photos in this appeal.”

The 7th Circuit thus concluded Waldon’s counsel, James Ayers of Wernle, Ristine & Ayers in Crawfordsville, “intentionally altered the photographs previously submitted in the district court record” and misrepresented to the court what day they were taken on. It ordered Ayers to show cause within 14 days why he should not be sanctioned under Rule 46 of the Federal Rules of Appellate Procedure for altering the photographs and misrepresenting the record to the court.

“Additionally, after considering Waldons’ counsel’s response, we will decide whether to forward a copy of this opinion to the Indiana Supreme Court Disciplinary Commission for it to consider whether to institute disciplinary proceedings against him,” the 7th Circuit concluded.

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