At first blush, it sounds like the epitome of a frivolous lawsuit: A Santa Fe man sues Whole Foods Market, alleging he was hurt by flying boxes of mandarin oranges. But the allegations in this case, scheduled to go to trial next week, are more serious. The store management is accused of deliberately allowing evidence to be destroyed and encouraging employees to lie in depositions.
Nov. 20, 2008: Michael Lancaster, 53, and his wife Barbara Harnack are trying to extricate a grocery cart from its neighbor in the entry lobby of Whole Foods on Cerrillos Road. At the same time, former Whole Foods employee Billy Miller is pulling a four-wheeled trolley stacked with boxes of Cuties clementines over the threshold between the lobby and the floral department. The trolley suddenly tips forward, launching boxes of citrus fruits everywhere. According to the lawsuit, the airborne oranges hit an unsuspecting Lancaster in the back of the leg, an experience he likens in court documents to being smacked with a wooden oar.
"As I was separating [the grocery carts], there was a loud crash or bang," Lancaster said in a sworn deposition. "And at the exact same moment, something hit me in the back of the leg. It caused me to buckle…and there was a sea of oranges everywhere."
Lancaster ended up in the Emergency Room, complaining of leg pain and whiplash-like back and neck issues from twisting in reaction to the blow. He underwent $9,734 worth of medical procedures after the incident, including minor surgery on veins in his right leg and an X-ray on his neck vertebrae.
Santa Fe lawyer Steven Farber, who handles many personal injury lawsuits but is not involved with this case, says Lancaster v Whole Foods is more complicated than a classic grocery store slip-and-fall case because an employee was actively involved. Despite that, the mishap itself wouldn't necessarily reflect poorly on the store—but the allegation of evidence destruction "takes it out of the realm of a normal accident," Farber says.
Lancaster's lawyer, GTS Khalsa, claims Whole Foods deliberately destroyed the surveillance video that captured the incident and, in an effort to downplay the situation, encouraged employees to lie in their depositions about the video's contents.
According to court documents, Whole Foods staff viewed the video for the first time the same day as the incident occurred—and, in the days immediately following, were asked by the store's risk management director to make a copy of it. At some point in the interim, the documents say, a technician from Red Hawk, the company that installed video cameras at the store, was on site to attend to a separate issue—but no one asked him to make a copy of the footage.
"There was a sea of oranges everywhere"
On Dec. 2, 2008, Whole Foods' claims adjuster received a call from Khalsa indicating that Lancaster would sue. Two days later, a Whole Foods employee reported in an email to Cynthia Tobias, the store's risk management director, that she "just learned that we have mistakenly taped over the incident."
Whole Foods claimed that the footage was automatically taped over when the machine ran out of recording space, and a Red Hawk technician confirmed in a deposition that the machine eventually records over old footage, usually in approximately two weeks. However, Whole Foods employees testified that the store's manager, Tim Lenihan, never asked any employee to copy the footage onto a disk.
"Mr. Lenihan was told on multiple occasions by Ms. Tobias…that the tape needed to be copied," Khalsa writes in a court pleading. "It would have been easy for Mr. Lenihan to have the video copied. It could have been done with a simple phone call. Knowing that the video could be destroyed…he never made the call or directed anyone to obtain a copy."
Lenihan didn't return a call for comment. Whole Foods corporate spokeswoman Libba Letton tells SFR that company policy is to withhold comments on pending litigation.
In his deposition, the Red Hawk technician said the video system had a built-in CD burner and the recording process was "fairly easy." He also acknowledged that Red Hawk could have made a copy at Whole Foods' request, as they did after a purse-snatching at the store on Jan. 5, 2009, just six weeks later.
"They just got to make a phone call [to have it copied]," a source with knowledge of the situation, who spoke to SFR on condition of anonymity, says. "I think [Lenihan] let it be erased—they were all watching it day after day and talking about it."
The source also says employees were encouraged to lie about the footage. Khalsa tells SFR that he has no direct knowledge of Whole Foods employees being pressured to lie—but, during the depositions, he says, "That was my impression."
At a minimum, some employees' stories conflict.
Four days after the incident, Miller, the employee pulling the cart of oranges, wrote in an email to Tobias that "some of the boxes hit the back of [Lancaster's] foot." In a deposition taped last fall in preparation for the trial, Miller said nothing hit Lancaster.
Other employees' depositions contain minor inconsistencies in details such as the height of the stack of orange boxes and in which direction they fell. All of them, though, said nothing hit Lancaster.
"Billy told me stuff hit [Lancaster]," the anonymous source says. "Funny that the guy that tips it over doesn't have the same story."
In March 2009, Whole Foods made a decision on this case that, according to a spokesman at the Institute for Legal Reform at the US Chamber of Commerce, bucks a prevailing trend: The company rejected Khalsa's offer to settle the lawsuit for $38,750.
"Many companies find litigation expenses and the risk of a potentially devastating jury award so excessive that settling is often the least risky strategy, strictly from an economic point of view—even if the case fundamentally lacks merit or is frivolous," ILR
spokesman Bryan Quigley writes in an email to SFR. "[Plaintiffs understand] this dynamic and [use] it to their advantage quite effectively in many circumstances."
Lancaster may be just such a litigant: In 2004, he settled with Home Depot for an undisclosed amount after an employee helping him lift a heavy roll of wire mesh into his truck dropped his end, allegedly causing Lancaster to be struck in the knee.
Whole Foods, too, has settled—most recently in 2010, for an undisclosed amount. But two other claims—one filed by a man claiming he slipped in chicken grease and another by a woman who claimed a glass bottle of iced tea shattered in her hand when she opened it—remain pending.
As for Lancaster, "He pretty much recovered from his injuries," Khalsa says. "He's doing well."
Harnack tells SFR that she and her husband can't comment on the pending suit.
"It's really sad," Harnack says. "I'm afraid we can't talk. We'd like to, though."