                    UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT




                             No. 94-60854
                           Summary Calendar



ROGER A. HEDRICK,
                                           Plaintiff-Appellee-
                                           Cross-Appellant,

                                versus

WAL-MART STORES, INC.,
                                           Defendant-Appellant
                                           Cross-Appellee.



      Appeal from the United States District Court for the
                Southern District of Mississippi
                        (5:93-CV-22-BrB)


                         (September 25, 1995)


Before GARWOOD, WIENER and PARKER, Circuit Judges.*

GARWOOD, Circuit Judge:

     Defendant-appellant Wal-Mart Stores, Inc. (Wal-Mart) appeals

the judgment entered against it, following a jury trial, in the

amount of $62,500.   This case arose out of a slip and fall incident

which occurred in the automotive department of the Wal-Mart store

in Vicksburg, Mississippi.    The jury verdict of $125,000 in favor

*
     Local Rule 47.5 provides: “The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession.”
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
of plaintiff-appellee Roger A. Hedrick (Hedrick) was reduced by

fifty percent to reflect the jury's determination that Hedrick was

fifty percent contributorily negligent.               We affirm.

                        Facts and Proceedings Below

       Hedrick was an invitee in Wal-Mart's Vicksburg, Mississippi

store on the morning of February 13, 1990 when he slipped and fell

in the automotive department at approximately 10:00 a.m.                    Hedrick

claimed that his fall resulted from the presence of some type of

petroleum product on the floor.              Hedrick fell on his second trip

down the aisle where the incident occurred.                He had stopped on this

second trip in order to pick up a five-gallon drum of hydraulic

oil.    Hedrick fell while attempting to place this drum of oil into

his shopping cart.         He admitted at trial that he had not seen the

oil product hazard which caused his fall.

       As a result of this fall, Hedrick asserted that he suffered

permanent injury to his lower back.             He consulted several doctors

during    the    four   years     following    his    accident.      Hedrick      was

eventually referred to Dr. Salil Tiwari (Tiwari), a neurologist.

The district court permitted the jury to view portions of a

videotaped deposition of Tiwari in which the doctor testified that

it was unlikely that Hedrick's pain would lessen, or that Hedrick

would get any better.           Tiwari also testified that Hedrick would

incur additional medical costs.          Hedrick presented other witnesses

who    testified    that    his   condition     had    deteriorated       since   the

accident, during which time he has had minimal employment.

       Hedrick     elicited     the   testimony       of   two   former    Wal-Mart


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employees to establish the existence of the hazard--oil on the

floor--and Wal-Mart's awareness of it.   Dewayne Washington, a Wal-

Mart stock clerk and sales clerk at the time of the accident,

testified that he had discovered oil on the floor of the aisle

adjacent to the aisle where Hedrick fell when he arrived at work

around 7:00 a.m. on the morning of the accident.        Washington

testified that he had cleaned up this oil, but that there was a

space between the floor and the bottom of the counter which

separated the two aisles; he further testified that he did not,

prior to Hedrick's accident, check the other side of the counter to

see if oil had seeped into the aisle where Hedrick fell.     In an

earlier deposition, Washington testified that he had seen no oil in

the aisle where the accident occurred, nor had he been in that

aisle prior to the accident.     He said nothing in his deposition

about finding oil spilled on the floor of the adjacent aisle.

     Hedrick also relied on the testimony of former Wal-Mart

employee Steve Wiley.   Wiley had been the assistant manager of the

Vicksburg Wal-Mart on the date of Hedrick's accident.        Wiley

testified that he arrived at the scene of the accident shortly

after Hedrick's fall, and observed oil running down the counter

next to where Hedrick had fallen and accumulating on the floor.   On

cross-examination, Wiley testified that he had no knowledge of

whether or not the oil had pooled on the floor prior to Hedrick's

fall.   He also acknowledged that, in the incident report he had

prepared shortly after the accident, he had indicated that the

aisle floor was clean and dry.


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     Other Wal-Mart employees testified that no oil had been

discovered on the floor of the aisle where Hedrick fell during the

several safety inspections conducted prior to his fall.              The

department   manager   testified   that   he   had   walked   the   aisle

approximately ten to fifteen minutes before the accident, and had

seen nothing.

     Hedrick's counsel of record changed twice before Paul Loyacono

and Jerry Campbell (Loyacono and Campbell)--who would ultimately

represent Hedrick at trial--were retained on October 4, 1994.

Hedrick's trial began on October 24, 1994.      Hedrick moved to amend

the pre-trial order on October 5, 1994, the day after Hedrick's

previous counsel, Michael Pond (Pond), withdrew as counsel of

record.   The district court qualifiedly granted this motion on

October 17, 1994.

     In his motion to amend the pre-trial order, Hedrick sought to

add Dr. Tiwari as a witness.   The district court found Tiwari to be

a "treating physician" and allowed that requested amendment.         The

district court refused, however, to allow Dr. Tiwari's videotaped

testimony concerning the results of Hedrick's myelogram to be put

before the jury.    The district court likewise refused to amend the

pre-trial order to allow Hedrick to depose another doctor, Daniel

Dare.

     Hedrick moved for judgment notwithstanding the verdict on the

question of contributory negligence, or for a new trial on damages,

on October 31, 1994.    Wal-Mart moved for judgment notwithstanding

the verdict, or for a new trial on liability only--or on all


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issues--on November 7, 1994.    These motions were all denied by the

district court.

     Wal-Mart appeals the judgment, and Hedrick cross-appeals.

                              Discussion

I.   Wal-Mart's Appeal

     We review the district court's denial of Wal-Mart's motions

for directed verdict and for judgment as a matter of law de novo.

If there is substantial evidence opposed to the motions, "that is,

evidence of such quality and weight that reasonable and fair minded

men in the exercise of impartial judgment might reach different

conclusions . . . ," then we must affirm the district court's

denial of the motions.     E.E.O.C. v. Louisiana Office of Community

Servs., 47 F.3d 1438, 1443 (5th Cir. 1995) (quoting Boeing Co. v.

Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc)).             In

reviewing the record, we must view the evidence and draw all

reasonable inferences therefrom in the light most favorable to the

party against whom the motions for directed verdict and judgment as

a matter of law were filed.     Id.    We review the district court's

denial of Wal-Mart's motion for a new trial under an abuse of

discretion standard.     Conway v. Chemical Leaman Tank Lines, Inc.,

687 F.2d 108, 112 (5th Cir.) (citations omitted), reh'g denied,

Conway v. Chemical Leaman Tank Lines, Inc., 693 F.2d 133 (5th Cir.

1982).

     Wal-Mart contends that Hedrick failed to meet his burden of

establishing either that Wal-Mart created the hazard which led to

Hedrick's fall or that the hazard existed for a period of time


                                   5
sufficient to impute to Wal-Mart actual or constructive knowledge

of its presence. In support of this contention, Wal-Mart correctly

notes that Hedrick's proof on these points comes entirely from the

testimony of former employees Washington and Wiley.                  Wal-Mart's

argument   boils    down   to   nothing       more   than   an   attack    on   the

credibility of this testimony, however, and the evidence provided

by Washington and Wiley was clearly of such quality and weight that

fair-minded jurors could have found that Wal-Mart either created

the   hazard   or   had    actual   or       constructive   knowledge      of   its

existence.     The   alleged     inconsistencies        between    Washington's

deposition and trial testimony, and Wiley's incident report and

trial testimony, do not mandate a different conclusion.                   There is

likewise no merit to Wal-Mart's contention that the district

court's denial of its motion for a new trial constituted an abuse

of discretion.

      Wal-Mart additionally contends that the district court erred

in amending the pre-trial order to allow Hedrick to designate Dr.

Tiwari as a "treating physician"; Wal-Mart argues that it was error

to allow portions of Tiwari's videotaped testimony as this doctor

was not a treating physician, but only an ordinary expert.                      In

support of this contention, Wal-Mart asserts that no treatment was

provided by Dr. Tiwari; Tiwari merely testified regarding possible

treatment, such as epidural steroid, and the possibility and costs

of a laminectomy.

      This Court will review a district court's decision to amend

pre-trial orders in this context under an abuse of discretion


                                         6
standard.     Nobby Lobby, Inc. v. Dallas, 970 F.2d 82, 93-94 (5th

Cir. 1992).         The trial court's discretion is to be guided by

consideration of the following factors:                (1) the importance of the

witness's testimony; (2) the prejudice to the other party of

allowing the witness to testify; (3) the possibility of curing such

prejudice by granting a continuance; and (4) the explanation for

the party's failure to identify the witness.                        Id. (citations

omitted). As to the first factor, when Hedrick's counsel moved for

this amendment to the pre-trial order, no doctors had yet been

deposed by Hedrick's previous counsel; Hedrick sought Tiwari's

testimony to confirm the diagnosis of Dr. Cronin, Hedrick's family

physician.     Hedrick argued that, without these depositions, there

could have been no evidence introduced of future disabilities, pain

and suffering, or expenses. With regard to the second factor, Wal-

Mart argues that it was prejudiced by Tiwari's testimony because

Tiwari   substantially         clouded     the      picture     Wal-Mart    had    been

developing of Hedrick's medical condition.                    While the timing of

this amendment may have provided Wal-Mart with legitimate grounds

for a continuance, they nonetheless failed to seek one.                     As to the

third factor, implicitly finding that Wal-Mart was not prejudiced

by the amendment to the pre-trial order, the district court never

addressed the necessity of a continuance; however, it is noteworthy

that Hedrick offered as an accommodation to Wal-Mart a pledge not

to   oppose    any    motion     brought       by    Wal-Mart     for    continuance.

Regarding     the    final   factor,     Hedrick's      counsel     at     trial   were

retained approximately three weeks prior to trial. On the day they


                                           7
were hired, counsel filed a motion with the district court, seeking

leave to depose Dr. Tiwari and other doctors.                While this factor

may somewhat weigh in Wal-Mart’s favor, the district court was not

obliged   to   give    it    determinative   significance.         All   things

considered, we are unable to conclude that the district court

abused its discretion in admitting this evidence.

II.   Hedrick's Cross-appeal

      Hedrick contends that the district court erred when it refused

to grant Hedrick's motions for judgment as a matter of law--setting

aside the jury's finding of contributory negligence--and for a new

trial as to damages.          We affirm the district court's denial of

these motions.     Certainly, there is evidence of such quality and

weight that reasonable and fair-minded men in the exercise of

impartial judgment might conclude that Hedrick was contributorily

negligent.     The jury could reasonably have concluded that both

Hedrick and the Wal-Mart employees were negligent in failing to

notice the oil in the aisle where Hedrick fell.                  The district

court's   denial      of    Hedrick's   motion   for   new    trial   was   not,

therefore, an abuse of discretion. E.E.O.C. v. Louisiana Office of

Community Servs., 47 F.3d 1438; Conway v. Chemical Leaman Tank

Lines, Inc., 687 F.2d 108, supra.

      We likewise affirm the district court's refusal to amend the

pre-trial order to permit testimony by Dr. Dare and to allow Dr.

Tiwari's myelogram testimony.           The district court concluded that

Dr. Dare was a non-treating physician to whom Hedrick was sent by

counsel Hedrick retained on October 4, 1994, and the court ruled


                                        8
that it would allow testimony only from treating physicians.   As a

corollary to this ruling, the district court excluded Dr. Tiwari's

testimony regarding the myelogram procedure, as this testing was

integrally connected to the efforts of Dr. Dare.         Under the

circumstances of this case, the district court's refusal to allow

this evidence was not an abuse of discretion.

     Turning to Hedrick's final point of error, relating to the

district court's amendment of the pre-trial order, we are unable to

conclude that the district court abused its discretion or otherwise

erred in ordering that Hedrick pay Wal-Mart up to $1,000 in

reasonable attorneys' fees to compensate Wal-Mart in part for the

inconvenience and expense of the last-minute depositions of Dr.

Tiwari and Dr. Ervin Cronin.

     Accordingly, the district court’s judgment is



                                                         AFFIRMED.




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