Oppose Confirmations of Ohio Supreme Court Justice Deborah Cook and Attorney Jeffrey Sutton
TO ALL MEMBERS OF THE UNITED STATES SENATE
March 6, 2003
Dear Senator:
On behalf of the 1.4 million members of United Food and Commercial Workers International Union (UFCW), I write in strong opposition to the confirmations of Ohio Supreme Court Justice Deborah Cook and Attorney Jeffrey Sutton to the United States Court of Appeals for the Sixth Circuit. When Wal-Mart, the world?s largest corporation, concealed and destroyed evidence in a civil case, the widow of the deceased worker found justice only because every member of the Ohio Supreme Court (except Ms.Cook) sided with her and did not buy the arguments of Wal-Mart?s attorney, Mr.Sutton.
The case in question is Davis v. Wal-Mart Stores, Inc., 93 Ohio St.3d. 488, 756 N.E.2d 657(2001). This decision is clear evidence of their support for corporate interests over the public interest. We also believe that it is a clear indication of their inability to fairly and impartially apply the rule of law in a consistent and appropriate manner. Before the law, ordinary workers?even Wal-Mart workers and their widows? should have confidence that judges will ensure that their rights are protected. If nominees Sutton and Cook are confirmed, we will not be able to have that confidence.
In Davis v. Wal-Mart, the surviving wife of a Wal-Mart worker killed while operating a forklift at work, brought two actions against the world?s largest retailer. In 1992, Mrs.Davis brought a survivor claim as well as a wrongful death claim based on an intentional tort against the giant retailer. The jury found for Mrs.Davis on her wrongful death claim and the verdict was affirmed by the state appeals court.
Earlier, Mrs.Davis had dismissed her survivor claim. But during post-trial proceedings involving the intentional tort claim, she began to suspect that Wal-Mart had withheld evidence and provided false and misleading testimony during sworn deposition testimony. Specifically, although Wal-Mart representatives under oath denied awareness of the hazardous conditions at its loading docks, and denied prior similar incidents like the incident that killed TomDavis, the opposite was true. Wal-Mart concealed the documents revealing similar accidents and lied that similar accidents occurred. A pivotal piece of evidence was the Wal-Mart team diary which Mrs.Davis obtained after the intentional tort trial was over. Had she obtained the evidence earlier, Mrs.Davis would have been able to bring a claim of punitive damages at the time of her intentional tort trial.
In 1997, with her newly found knowledge, Mrs.Davis filed a tort claim alleging that Wal-Mart?s concealment and destruction of evidence and perjury were designed to thwart her intentional tort case and led to the dismissal of her survivor claim. Despite evidence of Wal-Mart?s deception, the giant retailer continued to lie and stonewall. Wal-Mart defended by claiming that Mrs.Davis? spoliation case was barred by the doctrine of grounds of res judicata. The Ohio State Appeals Court rejected Wal-Mart?s defense. JeffreySutton, Wal-Mart?s Counsel of Record, appealed the case to the Ohio Supreme Court.
Sutton, leading Wal-Mart?s legal team, devised a new path in Wal-Mart?s course of deceit. To that end, Sutton represented that the critical evidence revealing Wal-Mart?s spoliation was obtained during the discovery process of the earlier trial. In fact, the lower court found that Mrs.Davis did not discover Wal-Mart?s concealment and destruction of evidence until after final judgment in the intentional tort case. Sutton renewed Wal-Mart?s false claim before the Ohio Supreme Court. Mrs.Davis again informed Sutton and the Court of Wal-Mart?s false representation. Significantly, Sutton?s failure to correct his false representation violates Ohio Disciplinary Rule 7-102 which states in pertinent part: "A in his representation of a client, a lawyer shall not: (5) knowingly make a false statement of law or fact."
Fortunately, the Ohio Supreme Court upheld the letter and spirit of Ohio law that makes it unlawful for a party to litigation to conceal, alter, or destroy evidence. Going further, three Justices stated that Wal-Mart harms the sanctity of the judicial system and makes a mockery of its search for truth. The lone dissenter to the Ohio Supreme Court?s decision was Justice Cook. Cook?s misrepresentation of prior Ohio Supreme Court rulings would have had the effect of shielding Wal-Mart from the spoliation claim.
In sum, the record in Davis v. Wal-Mart makes manifestly clear that Sixth Circuit nominees Sutton and Cook pursued their singular objective of corporate interest above all else, particularly workers? interests in a safe workplace and the public interest in a fair judiciary based on true statements of fact. For this reason, we strongly urge Senate rejection of these nominees.
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