Sarah Combs v.  Wal-Mart Stores, Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 SARAH COMBS,
Plaintiff-Appellant,
v. No. 02-1516 
WAL-MART STORES, INCORPORATED,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Tommy E. Miller, Magistrate Judge.
(CA-01-106-4)
Argued: February 26, 2003
Decided: March 21, 2003
Before NIEMEYER and TRAXLER, Circuit Judges, and
C. ARLEN BEAM, Senior Circuit Judge of the
United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Ted G. Yoakam, DAVID, KAMP & FRANK, L.L.C.,
Newport News, Virginia, for Appellant. Samantha Stecker Otero,
MORRIS & MORRIS, Richmond, Virginia, for Appellee. ON
BRIEF: Joshua M. David, DAVID, KAMP & FRANK, L.L.C., New-
port News, Virginia, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Sarah Combs commenced this action for damages against Wal-
Mart Stores, Inc. in State court based on injuries that she allegedly
sustained as the result of an encounter with a Wal-Mart store clerk in
Newport News, Virginia. Combs alleged that during the incident, the
store clerk "slammed" a plastic wastebasket on her hand which was
on the checkout counter. Combs’ complaint alleged negligence, inten-
tional infliction of emotional distress, and assault and battery, and she
demanded $500,000 in compensatory damages and $1 million in
punitive damages. Wal-Mart removed this case from State court to
federal court based on diversity jurisdiction, and, following a jury
trial, the jury returned a verdict in favor of Wal-Mart. This appeal fol-
lowed.
On appeal, Combs contends first that the district court erred in
granting a Rule 50(a) judgment in favor of Wal-Mart on the
intentional-infliction and assault-and-battery claims after Combs pre-
sented her evidence on these claims. Wal-Mart argues that Combs’
testimony, which was the only evidence in support of finding inten-
tional conduct, was unreliable because Combs conceded in deposition
testimony that "I truthfully don’t believe [the clerk] meant" to hit her
hand, yet at trial she changed her position and testified that she was
"fully convinced" that the clerk meant to do it. While on review of the
district court’s ruling we must take the evidence in a light most favor-
able to Combs, we conclude that the record fails to support Combs’
opinion that the clerk’s conduct in "slamming" the plastic wastebasket
on Combs’ hand was intentional. Combs simply provided no direct or
circumstantial evidence from which a jury could conclude that the
conduct was intentional, as she asserted. Thus, we agree with the dis-
trict court that Combs did not establish a legally sufficient basis for
a reasonable jury to find in her favor on either of these claims.
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Combs also contends that the district court erred in receiving testi-
mony of a racist remark allegedly made by her during the encounter
and in halting Combs’ interrogation of Wal-Mart about why video-
taped recordings of the incident did not exist and were not maintained
by Wal-Mart. When reviewing evidentiary rulings made by a trial
court, we review for abuse of discretion.
In this case, the record does not support a conclusion that the dis-
trict court abused its discretion on either of these rulings. The racist
comment was allegedly made by Combs during the encounter
between Combs and the clerk and provided an explanation for state-
ments and actions that followed. It also permitted the jury to assess
whose version of the events, which diverged substantially, was the
more credible one.
The district court’s prohibition against Combs’ interrogation that
was aimed at suggesting Wal-Mart’s spoliation of videotape evidence
does not constitute reversible error. Without deciding its admissibil-
ity, in light of the overwhelming evidence in the case against Combs,
any possible error in its prohibition was harmless.
Finally, on Combs’ assignment of error with respect to two eviden-
tiary rulings relating to admissibility of expert testimony, we con-
clude, after having reviewed the record, that the district court did not
abuse its broad discretion.
Because we have concluded that the district court did not commit
reversible error requiring a new trial, the two issues that Combs raised
relating to evidentiary rulings on the admissibility of evidence going
to the nature and extent of her injuries have become moot.
Accordingly, we affirm the judgment of the district court.
AFFIRMED
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