Jessie Herbert v. Wal-Mart Stores, Inc.

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…