Fresno shopper gets $2 million settlement when store loses evidence of foot injury

The Fresno BeeMarch 13, 2014 

A Fresno woman agreed to a $2 million settlement Thursday with DD's Discounts for an injury she suffered when a store employee's cart ran over her foot two years ago.

The agreement was reached at the start of the Fresno County Superior Court civil trial after potential jurors were told that corporate officials had lost key evidence -- video from the store's surveillance cameras that showed the incident, said Fresno attorney Jacob Rivas, who represented Johanna Magana.

"Once the jury found out they were hiding evidence, it didn't look good for them," Rivas said.

Efforts to talk with lawyers or corporate officials for DD's Discounts, which is owned by Ross Stores, Inc., were unsuccessful.

Rivas and court documents spell out the dispute:

In the afternoon of April 5, 2012, Magana and her 7-year-old daughter went to DD's Discounts at Ashlan and West avenues to buy an Easter dress. A store employee, who was pushing a metal cart in the store, struck the outside of Magana's left foot with the cart.

The blow was painful enough to cause Magana to limp. She immediately reported the incident to the store manager. She then paid for her merchandise and left the store.

The next day, she returned to the store and asked for a copy of the incident report, but a store official declined the request.

After Rivas filed a personal injury lawsuit in July 2012, he requested video from the store's surveillance cameras which should have recorded the incident from various angles. Company officials said they didn't have any videotape showing it.

Prior to trial, store and corporate employees said in depositions that the videotape was either destroyed or "had mysteriously disappeared." Whichever the case, Rivas said he was going to argue that the evidence was wilfully suppressed.

Rivas said he asked potential jurors of their views about suppression of evidence. He said many of them responded "that if evidence wasn't produced, then the company must have something to hide."

Rivas said he also asked jurors about their views about awarding damages for what looks like minor trauma to someone's foot. Once Rivas explained Magana's injury, he said, jurors were open to awarding damages.

The metal cart that struck Magana's foot weighed about 100 pounds, Rivas said.

Her doctors were ready to testify in the trial that her foot injury resulted in Complex Regional Pain Syndrome, or CRPS, a rare chronic neurological disorder involving the limbs characterized by disabling pain, swelling and impairment of motor function.

If the case had proceeded to trial, Rivas said, his experts were prepared to testify that someone can get CRPS by sliding into second base and twisting an ankle or getting pecked on the hand by a bird.

"It doesn't take much to get it," Rivas said.

Magana first treated her pain with medication and physical therapy. When that didn't work, she had to get injections in her back and undergo surgery to her spinal cord.

The chronic pain forced her to leave her job as a teacher's aide with the Fresno Unified School District, he said.

Initially, lawyers for DD's Discounts offered $100,000 to settle; Rivas was seeking around $4 million to $5 million.

The lawyers for DD's Discounts upped their offer to $500,000 a month before the trial and $1.2 million a day before jury selection, he said.

Once the jury learned of the missing evidence, both sides agreed on $2 million.

"She will need lifelong care," Rivas said.

The reporter can be reached at (559) 441-6434, plopez@fresnobee.com or @beecourts on Twitter.

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