UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LADONNA GOEHLER,
Plaintiff-Appellee,

v.                                                               No. 99-2057

WAL-MART STORES, INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
B. Waugh Crigler, Magistrate Judge.
(CA-98-15-5)

Argued: June 6, 2000

Decided: August 17, 2000

Before NIEMEYER and WILLIAMS, Circuit Judges,
and Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Beverley Tiller, MORRIS & MORRIS, P.C.,
Richmond, Virginia, for Appellant. John L. Watts, BREIT, DRES-
CHER & BREIT, P.C., Norfolk, Virginia, for Appellee. ON BRIEF:
Donald C. Beck, Jr., MORRIS & MORRIS, P.C., Richmond, Vir-
ginia, for Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Wal-Mart Stores, Inc. timely appeals a $2,193,602.26 judgment
based on a jury verdict in favor of Ladonna Goehler, who slipped and
fell on hand soap that had pooled on the floor of the women's rest-
room in a Winchester, Virginia Wal-Mart store. Goehler's suit against
Wal-Mart alleged that the soap dispensers had been negligently
located between the sinks where it was reasonably foreseeable that
they would leak onto the floor. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm. We discuss each of Wal-Mart's five
arguments in turn.

I

Wal-Mart first contends that the district court erred in allowing
Goehler to introduce evidence of subsequent remedial measures. The
district court's evidentiary decisions are normally reviewed under an
abuse of discretion standard, but the legal analysis underlying such
decisions is reviewed de novo. See Hottle v. Beech Aircraft Corp., 47
F.3d 106, 109 (4th Cir. 1995).

At the outset of this litigation, Wal-Mart maintained that the soap
dispenser at issue had always been located over the sink such that any
soap that fell from the dispenser spout would have fallen into the sink,
rather than onto the floor. Wal-Mart swore in its answers to Goehler's
interrogatories that the soap dispenser had not been moved, and its
corporate designees testified in their depositions that the soap dis-
penser was in the same position that it had been on the day of the
accident. After Goehler hired an expert who produced photographs
showing that the soap dispenser had, in fact, been moved, Wal-Mart
supplemented its discovery responses to acknowledge the movement
of the dispenser. Both Goehler and the district court believed that the
jury was entitled to know that Wal-Mart had changed its position
regarding whether the dispenser had been moved.

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Wal-Mart argues that Federal Rule of Evidence 407 required the
district court to exclude evidence of the soap dispenser's movement.
Rule 407 provides:

          When, after an injury or harm allegedly caused by an event,
          measures are taken that, if taken previously, would have
          made the injury or harm less likely to occur, evidence of the
          subsequent measures is not admissible to prove negligence,
          culpable conduct, a defect in a product, a defect in a prod-
          uct's design, or a need for a warning or instruction. This rule
          does not require the exclusion of evidence of subsequent
          measures when offered for another purpose, such as proving
          ownership, control, or feasibility of precautionary measures,
          if controverted, or impeachment.

Fed. R. Evid. 407.

Although Wal-Mart concedes that evidence is admissible under
Rule 407 when offered for impeachment purposes, it contends that
there was no basis for impeachment in this case because Wal-Mart
agreed with Goehler as to the dispenser's location. This argument is
disingenuous. Wal-Mart eventually admitted that the dispenser had
been moved after the accident; it continued to argue, however, that
the original position of the dispenser placed the spout over the sink.
Thus, the original location of the dispenser was still in dispute. The
district court did not err in allowing Goehler to introduce evidence of
Wal-Mart's change in position in order to impeach Wal-Mart's credi-
bility as to the dispenser's original location.

We have previously recognized that "Rule 407 is based on the pol-
icy of encouraging potential defendants to remedy hazardous condi-
tions without fear that their actions will be used as evidence against
them." TLT-Babcock, Inc. v. Emerson Electric Co., 33 F.3d 397, 400
(4th Cir. 1994). We note that this policy is not implicated under the
facts of this case. Wal-Mart never claimed that it moved the dispenser
in order to remedy a dangerous condition. At trial, Wal-Mart specu-
lated that the soap dispenser might have been moved by maintenance
workers when they installed a paper towel dispenser. Not only was
the soap dispenser not moved for safety reasons, it appears that it was
not moved at Wal-Mart's direction. The district court's admission of

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evidence regarding the soap dispenser's movement did not violate
Rule 407.

II

Wal-Mart next argues that the district court should have granted its
motion for judgment as a matter of law because Goehler failed to
prove a prima facie case of negligence. We review this issue de novo
to determine whether the evidence, viewed in the light most favorable
to Goehler, would have permitted a jury reasonably to return a verdict
in her favor. See Sales v. Grant, 158 F.3d 768, 775 (4th Cir. 1998).
Because this is a diversity case, Virginia law governs the parties'
duties and responsibilities. See Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78 (1938).

Goehler was an invitee upon Wal-Mart's premises. As such, Wal-
Mart owed her a duty to maintain its premises in a reasonably safe
condition. See Memco Stores, Inc. v. Yeatman, 348 S.E.2d 228, 230
(Va. 1986) (citations omitted). According to Goehler, Wal-Mart's
negligence was based not on its failure to clean up the soap puddle,
but rather on its "genesis" of the dangerous condition in the first
place. See id. at 231. Where, as here, a defendant's affirmative con-
duct -- in this case, the placement of the soap dispenser -- is alleged
to have created a dangerous condition on its premises, the jury must
determine whether "an ordinarily prudent person, given the facts and
circumstances [the defendant] knew or should have known, could
have foreseen the risk of danger resulting from such circumstances."
Id.

The issue of Wal-Mart's negligence was properly submitted to the
jury. Goehler produced evidence, including photographs, demonstrat-
ing that the soap dispensers were positioned over the floor rather than
the sink. Goehler testified that the soap was pooled on the floor
directly below the dispenser. Michelle Kountz, one of Wal-Mart's
maintenance employees, testified that she knew that these dispensers
sometimes leaked. Based on this evidence, a reasonable juror could
find that Wal-Mart had constructive notice of the danger of soap leak-
ing onto the floor, and that this danger was foreseeable as a result of
the location of the soap dispenser.

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Nevertheless, Wal-Mart contends that because Goehler did not
offer any evidence as to how the soap ended up on the floor (e.g., a
defective dispenser), she has failed as a matter of law to prove negli-
gence. The Virginia Supreme Court has squarely rejected this argu-
ment. See O'Brien v. Everfast, Inc., 491 S.E.2d 712 (1997). In
O'Brien, the Court held that "the foreseeability of the danger, and not
the manner of its actual occurrence, [is] the relevant question for the
jury to consider in determining whether the defendant had been negli-
gent." Id. at 715 (citation omitted). The district court properly denied
Wal-Mart's motion for judgment as a matter of law.

III

Wal-Mart's third argument, like its second, contends that the dis-
trict court should have granted Wal-Mart's motion for judgment as a
matter of law because Goehler was contributorily negligent. As dis-
cussed above, the district court's ruling is reviewed de novo to deter-
mine whether the evidence, viewed in the light most favorable to
Goehler, would have permitted a jury reasonably to return a verdict
in her favor. See Sales, 158 F.3d at 775.

A plaintiff is contributorily negligent as a matter of law when,
despite lacking actual knowledge of a defect, the defect was open and
obvious and, by the exercise of ordinary care, the defect could have
and should have been seen. See West v. City of Portsmouth, 232
S.E.2d 763, 765 (Va. 1977). According to Goehler's testimony at
trial, the soap was a light pink, translucent liquid which was hard to
see against the grayish tile floor. Moreover, the puddle of soap was
between and partially under the sinks. Because sufficient evidence
exists from which a reasonable juror could find that the soap spill was
not open and obvious, the district court properly denied Wal-Mart's
motion for judgment as a matter of law.

IV

Next, Wal-Mart argues that the district court improperly prohibited
Wal-Mart from explaining its prior discovery answers. During discov-
ery, Goehler propounded the following interrogatory:

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          State the full name, resident address, business address and
          telephone number of all individuals responsible for the
          inspection, maintenance and/or cleaning of the ladies' room
          in your store on the date of this accident. Include in your
          answer, the last time that this ladies' restroom was inspected
          prior to Plaintiff's fall and the name, address, telephone
          number and current work status with Wal-Mart of the indi-
          vidual who performed such inspection.

Wal-Mart identified Michelle Kountz in both its answer to the inter-
rogatory and in its corporate designees' deposition testimony. Goehler
then deposed Kountz and was able to establish that she was not work-
ing on the day of the accident. At trial, Wal-Mart sought to elicit testi-
mony that if Kountz was not working, someone else would have
cleaned the restroom. Goehler objected to this testimony, and the dis-
trict court sustained the objection, on the basis that Wal-Mart never
supplemented its discovery responses. The court did, however, allow
Wal-Mart to explain why it had mistakenly believed that Kountz was
working.

Wal-Mart contends that the district court's refusal to allow testi-
mony as to other individuals who might have inspected the restrooms
on the day of the accident left the jury with the mistaken impression
that the restrooms were not cleaned that day. A district court's eviden-
tiary rulings are reviewed for an abuse of discretion. See Sasaki v.
Class, 92 F.3d 232, 241 (4th Cir. 1996). The district court did not
abuse its discretion in prohibiting Wal-Mart from disclosing informa-
tion at trial that was not fully disclosed in response to discovery. Had
Wal-Mart been allowed to introduce testimony regarding generic
employees, such as "cart gatherers and stockmen," who "might" have
cleaned the bathrooms, Goehler would unfairly have been denied the
opportunity to cross-examine these unnamed employees.

Moreover, most of the evidence that Wal-Mart contends was with-
held from the jury was, in fact, presented to the jury through Goe-
hler's reading of select portions of deposition testimony. Thus, the
jury learned that "cart gatherers as well as day maintenance asso-
ciates" would have been trained in restroom cleaning procedures.
Likewise, Wal-Mart solicited testimony from Kountz that when she

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was not at work, other maintenance employees would have been
working and would have had the same training that she had.

V

Finally, Wal-Mart challenges the district court's denial of its
motion for a new trial based upon the alleged excessiveness of the
jury's verdict. A district court sitting in diversity must apply state law
when it considers such a motion. See Gasperini v. Center for Humani-
ties, Inc., 518 U.S. 415, 438-39 (1996). Under Virginia law, a jury
verdict will be set aside only if it is "so excessive that it shocks the
conscience of the court, creating the impression that the jury was
influenced by passion, corruption, or prejudice; that the jury has mis-
conceived or misunderstood the facts or the law; or, the award is so
out of proportion to the injuries suffered as to suggest that it is not
the product of a fair and impartial decision." Poulston v. Rock, 467
S.E.2d 479, 481 (Va. 1996) (citations omitted). Setting aside a verdict
as excessive under these conditions is an exercise of the inherent dis-
cretion of the trial court and, on appeal, the standard of review is
whether the trial court abused its discretion. See id. at 482 (citation
omitted).

Here, the district court did not abuse its discretion. Although the
size of the verdict is large, it is supported by the evidence regarding
Goehler's medical treatment, expenses, pain, suffering, disability, loss
of consortium, and loss of quality of life. Goehler and her doctor both
testified as to her extreme pain. In an effort to relieve her pain, Goe-
hler underwent a decompression laminectomy and fusion with inter-
nal stabilization. Following this surgery, she developed a serious
staph infection, whereupon her wound was surgically debrided and
irrigated. She then developed a second staph infection which required
another surgical procedure. In the meantime, Goehler was in and out
of the hospital, confined to her bed for long periods of time. As a
result of her infections, her spinal fusion did not take hold and another
operation was performed to remove the hardware which had loosened
and worn away the bone around the screws and rods. An electronic
bone growth stimulator was implanted to try and stimulate her graft
to fuse together with her spine. Finally, Goehler had yet another sur-
gery to remove the bone stimulator. She continues to suffer from
chronic and severe pain, and is limited in her life activities.

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VI

We affirm the judgment of the district court entered in compliance
with the verdict.

AFFIRMED

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