SOL:KLS&SC 

(09)66532 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION

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HILDA L. SOLIS, Secretary of Labor, 

United States Department of Labor, 

 Complainant, 

 v. 

WAL-MART STORES INC., 

 Respondent. 

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OSHRC DOCKET 

No. 09-1013 

SECRETARY’S POST-TRIAL BRIEF 

 M. PATRICIA SMITH 

 Solicitor of Labor 

 PATRICIA M. RODENHAUSEN 

 Regional Solicitor 

 JEFFREY ROGOFF 

 Senior Attorney 

 SUDWITI CHANDA 

 DARREN COHEN 

KATHRYN L. STEWART 

 Attorneys 

 U.S. Department of Labor 

 Attorneys for HILDA L. SOLIS, 

Secretary of Labor, Complainant 

Patricia M. Rodenhausen 

Regional Solicitor 

U.S. Department of Labor 

201 Varick Street, Room 983 

New York, New York 10014 

Tel. 646-264-3650, Fax 646-264-3660 
TABLE OF CONTENTS 

TABLE OF CONTENTS ............................................................................................................. ii

TABLE OF AUTHORITIES ....................................................................................................... v

PRELIMINARY STATEMENT ................................................................................................. 1

STIPULATIONS........................................................................................................................... 3

FACTUAL BACKGROUND AND PROPOSED FINDINGS OF FACT ............................... 4 

A. Wal-Mart Corporate Structure ................................................................................ 5 

B. Wal-Mart Safety Policies and Procedures: Incident and Accident 

Reporting................................................................................................................. 5 

1. Claims Management, Inc. as Wal-Mart’s Injury Claims 

Administrator .............................................................................................. 6 

2. Reporting Claims ........................................................................................ 7 

3. Access to Accident History and Summary Reports.................................... 8 

C. Blitz Day Events at Wal-Mart Stores.................................................................... 10 

1. Crowd-Related Incidents on Blitz Days at the Store Prior to 2008 .......... 11 

2. Crowd-Related Incidents on Blitz Days at Wal-Mart Stores 

Nationwide Prior to 2008.......................................................................... 13 

D. 2008 Blitz Day Event............................................................................................ 16 

1. Preparation for the 2008 Blitz Day Event................................................. 16 

i. The Store’s “Game Plan”.............................................................. 17 

ii. Construction Barricades................................................................ 19 

iii. No Training in Crowd Management or Crowd Control................ 21 

2. The Events of November 28, 2008 ........................................................... 22 

i. Preparation for the Store’s 5 a.m. Opening................................... 22 

ii. “Melee” Rush at 5 a.m. Opening .................................................. 25 

iii. Hazardous Conditions in the Vestibule......................................... 26 

E. 2009 Day-After-Thanksgiving Day Sales Event .................................................. 34 

ARGUMENT............................................................................................................................... 38

I. EMPLOYEES WERE EXPOSED TO STRUCK BY AND ASPHYXIATION 

HAZARDS AT THE VALLEY STREAM WAL-MART STORE ON BLITZ 

DAY, NOVEMBER 28, 2008. ......................................................................................... 40 

A. Employees Testified That They Were Exposed to Serious Crowd-Related 

Hazards. ................................................................................................................ 41 

ii
B. Graphic Video Footage From Blitz Day 2008 Confirms Wal-Mart’s 

Employees’ Exposure to Serious Crowd-Related Hazards................................... 44 

II. WAL-MART RECOGNIZED THAT ITS EMPLOYEES FACED SERIOUS 

STRUCK BY AND ASPHYXIATION HAZARDS FROM THE CROWDS OF 

CUSTOMERS AT ITS STORES ON BLITZ DAY......................................................... 47 

A. Wal-Mart Recognized Crowd-Related Hazards Because Employees Had 

Been Exposed to Serious Crowd-Related Incidents at Wal-Mart Stores 

Before 2008........................................................................................................... 50 

1. Wal-Mart Was Aware of Prior Crowd-Related Incidents at the 

Valley Stream Store. ................................................................................. 51 

i. Wal-Mart Knew That Crowd-Related Incidents Occurred at 

the Store on Blitz Day 2005.......................................................... 51 

ii. Wal-Mart Knew That Crowd-Related Incidents Occurred at 

the Store on Blitz Day 2006.......................................................... 53 

iii. Wal-Mart Knew That Crowd-Related Incidents Occurred at 

the Store on Blitz Day 2007.......................................................... 55 

iv. Wal-Mart Recognized the Crowd-Related Hazards at the 

Store Following Blitz Day 2007. .................................................. 58 

2. Wal-Mart Was Aware of Prior Crowd-Related Incidents at Its 

Stores Nationwide..................................................................................... 61 

i. Wal-Mart Had Notice That Crowds Rushing Into Its Stores 

on Blitz Day Presented Serious Hazards to Employees................ 64 

ii. Wal-Mart Had Notice That Employees and Customers 

Were Pushed and Struck By Crowds Rushing Into Its 

Stores on Blitz Day. ...................................................................... 66 

iii. Wal-Mart Had Notice That Employees and Customers 

Were Knocked Down and Trampled By Crowds Rushing 

Into Its Stores on Blitz Day........................................................... 67 

iv. Wal-Mart Had Notice That Employees and Customers 

Were Pushed, Crushed or Pinned Against the Store or 

Doors By Crowds Rushing Into Its Stores on Blitz Day. ............. 68 

v. Wal-Mart Knew That It Lacked Appropriate Crowd 

Control Measures at Its Stores. ..................................................... 69 

B. Wal-Mart’s Blitz Day Planning Documents Demonstrate That Wal-Mart 

Recognized Crowd-Related Hazards. ................................................................... 72 

C. The Valley Stream Store’s Flawed Safety “Precautions” For Blitz Day 

2008 Demonstrate That Wal-Mart Recognized Crowd-Related Hazards............. 77 

III. THE HAZARDS FACED BY WAL-MART’S EMPLOYEES WERE LIKELY 

TO CAUSE SERIOUS HARM OR DEATH. .................................................................. 79 

iii
IV. WAL-MART COULD HAVE MATERIALLY REDUCED THE HAZARDS TO 

ITS EMPLOYEES BY USING PRACTICAL, FEASIBLE CROWD 

MANAGEMENT MEASURES. ...................................................................................... 83 

A. Wal-Mart Failed to Utilize Feasible Crowd Management and Crowd 

Control Measures That Were Available in 2008. ................................................. 84 

B. Wal-Mart Failed to Utilize Feasible Crowd Management and Crowd 

Control Measures That Would Have Materially Reduced the Hazards to 

Employees............................................................................................................. 90 

V. THE SECRETARY’S $7,000 PROPOSED PENALTY IS REASONABLE IN 

LIGHT OF THE SERIOUS HAZARDS PRESENTED TO WAL-MART’S 

EMPLOYEES................................................................................................................... 93 

VI. RESPONDENT’S AFFIRMATIVE DEFENSES ARE MERITLESS............................. 94 

CONCLUSION ........................................................................................................................... 98

APPENDIX A – JOINT PRE-HEARING STATEMENT 

APPENDIX B – SUMMARY CHART OF PRIOR CLAIMS FORMS 

APPENDIX C – CHART OF VIDEO FOOTAGE FROM BLITZ DAY 2008 

iv
TABLE OF AUTHORITIES 

Cases 

Arcadian Corp., 20 BNA OSHC 2001, 2004 WL 2218388 (Rev. Comm. 2004)....... 39, 40, 41, 50 

Austin Bridge & Road, L.P., 21 BNA OSHC 1815, 2006 WL 2781631 

(Rev. Comm. 2006)............................................................................................................. 85, 91 

Baroid Div. of NL Indus., Inc., 660 F.2d 439 (10th Cir. 1981).................................................... 84 

Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995) ...................................................... 63 

Bethlehem Steel Corp., 607 F.2d 871 (3d Cir. 1979) ................................................................... 41 

Beverly Enterprises, Inc., 19 BNA OSHC 1161, 2000 WL 34012177 

(Rev. Comm. 2000)..................................................................................... 49, 77, 82, 83, 84, 85 

Brennan, 494 F.2d 460 (8th Cir. 1974)............................................................................. 40, 41, 48 

Carlyle Compressor Co., Div. of Carrier Corp., 683 F.2d 673 (2d Cir. 1982) ....................... 49, 50 

Cerro Metal Prods. Div., Marmon Group, Inc., 12 BNA OSHC 1821, 1986 WL 53467 

(Rev. Comm. 1986)................................................................................................................... 85 

Con Agra, Inc., 11 BNA OSHC 1141, 1983 WL 23849 (Rev. Comm. 1983) ............................. 85 

Continental Oil Co., 630 F.2d 446 (6th Cir. 1980)....................................................................... 63 

Dorey Elec. Co., 553 F.2d 357 (4th Cir. 1977)............................................................................. 80 

Dover Elevator Co., 16 BNA OSHC 1281, 1993 WL 275823 (Rev. Comm. 1993).................... 48 

Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1986 WL 53522 

(Rev. Comm. 1986)................................................................................................................... 48 

Dye Constr. Co., 9 BNA OSHC 1215, 1980 WL 10549 (ALJ 1980), aff’d 698 F.2d 423 

(10th Cir. 1983)......................................................................................................................... 63 

Empire-Detroit Steel Div., Detroit Steel Corp., 579 F.2d 378 (6th Cir. 1978)............................. 79 

Fears v. Wal-Mart Stores, Inc., Civ. A. No. 99-2515-JWL, 2000 WL 1679418 (D. Kan. 

Oct. 13, 2000) ........................................................................................................................... 50 

General Dynamics, Elec. Boat Div., 15 BNA OSHC 1891, 1992 WL 184536 (ALJ 1982) ........ 51 

General Dynamics Land Sys., Inc., 985 F.2d 560, 1993 WL 15067 (6th Cir. 1993) 

(unpublished) ...................................................................................................................... 49, 72 

v
Georgia Elec. Co., 595 F.2d 309 (5th Cir. 1979).................................................................... 47, 48 

Granite City Terminals Corp., 12 BNA OSHC 1741, 1986 WL 53439 

(Rev. Comm. 1986)................................................................................................................... 50 

Illinois Power Co., 632 F.2d 25 (7th Cir. 1980) ..................................................................... 80, 82 

J.A. Jones Constr. Co., 15 BNA OSHC 2201, 1993 WL 61950 (Rev. Comm. 1993).................. 94 

Jones & Laughlin Steel Corp., 10 BNA OSHC 1778, 1982 WL 22627 (Rev. Comm. 

1982) ......................................................................................................................................... 63 

Kaiser Aluminum & Chem. Co., 10 BNA OSHC 1893, 1982 WL 22713 (Rev. Comm. 

1982) ......................................................................................................................................... 79 

Kansas City Power & Light Co., 10 BNA OSHC 1417, 1982 WL 22592 (Rev. Comm. 

1982) ......................................................................................................................................... 40 

Kelly Springfield Tire Co., 1982 WL 917447 (Rev. Comm. 1982), aff’d, 729 F.2d 317 

(5th Cir. 1984)........................................................................................................................... 82 

Kelly Springfield Tire Co., Inc., 729 F.2d 317 (5th Cir. 1984) .................................................... 47 

Kus-Tum Builders, Inc., 10 BNA OSHC 1128, 1981 WL 18941 (Rev. Comm. 1981) ......... 49, 50 

Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977) ........................................ 40, 47, 79, 80 

McKie Ford, 18 BNA OSHC 1393, 1998 WL 175008 (ALJ 1998), aff’d 191 F.3d 853 

(8th Cir. 1999)........................................................................................................................... 47 

McKie Ford, Inc., 191 F.3d 853 (8th Cir. 1999)..................................................................... 47, 48 

Mercer Well Serv., Inc., 5 BNA OSHC 1893, 1977 WL 7758 (Rev. Comm. 1977) . 49, 72, 77, 78 

Mineral Indus. & Heavy Constr. Group, 639 F.2d 1289 (5th Cir. 1981) ............................... 40, 80 

Morrison-Knudsen Co., Inc., 16 BNA OSHC 1105, 1993 WL 127946 

(Rev. Comm. 1993)................................................................................................................... 90 

Nat’l Realty & Constr. Co., Inc., 489 F.2d 1257 (D.C. Cir. 1973)............................. 40, 47, 80, 83 

Nelson Tree Services, Inc., 60 F.3d 1207 (6th Cir. 1995) ...................................................... 47, 48 

Pepperidge Farm, Inc., 17 BNA OSHC 1993, 1997 WL 212599 

(Rev. Comm. 1997)........................................................................................... 47, 49, 77, 83, 85 

Praxair Distrib., Inc., 22 BNA OSHC 1075, 2007 WL 2511145 (Rev. Comm. 2007) .......... 49, 50 

Puffer’s Hardware, Inc., 742 F.2d 12 (1st Cir. 1984) ....................................................... 49, 72, 77 

vi
REA Exp., Inc., 495 F.2d 822 (2d Cir. 1974)............................................................................... 40 

R.L. Sanders Roofing Co., 620 F.2d 97 (5th Cir. 1980)............................................................... 47 

Royal Logging Co., 645 F.2d 822 (9th Cir. 1981)........................................................................ 80 

Safeway, Inc., 382 F.3d 1189 (10th Cir. 2004)............................................................................. 48 

Ted Wilkerson Inc., 9 BNA OSHC 2012, 1981 WL 18797 (Rev. Comm. 1981) ............ 49, 72, 78 

The News Press, 21 BNA OSHC 2211, 2007 WL 1934885 (Rev. Comm. 2007) ................. 48, 79 

The Timken Co., 20 BNA OSHC 1070, 2003 WL 1889150 (Rev. Comm. 2003)........... 49, 72, 78 

Titanium Metals Corp., 579 F.2d 536 (9th Cir. 1978).................................................................. 80 

Tree of Life d/b/a Gourmet Award Foods, NE Div., 19 BNA OSHC 1535, 2001 WL 

1154451 (Rev. Comm. 2001).................................................................................................... 79

Ulysses Irrigation Pipe Co., 11 BNA OSHC 1272, 1983 WL 23858 

(Rev. Comm. 1983)....................................................................................................... 49, 72, 77 

Union Oil Co., 869 F.2d 1039 (7th Cir. 1989).............................................................................. 50 

U.S. Postal Service, 21 BNA OSHC 1767, 2005 WL 6407173 (Rev. Comm. 2005) .................. 39 

U.S. v. Ladish Malting Co., 135 F.3d 484 (7th Cir. 1998) ............................................... 48, 61, 72 

Valdak Corp., 17 BNA OSHC 1135, 1995 WL 139505 (Rev. Comm. 1995), aff’d, 73 

F.3d 1466 (8th Cir. 1996) ................................................................................................... 93, 94 

Waldon Health Care Center, 16 BNA OSHC 1052, 1993 WL 119662 

(Rev. Comm. 1993)..................................................................................... 39, 49, 77, 79, 80, 83 

Wal-Mart Stores, Inc., 406 F.3d 731 (D.C. Cir. 2005)................................................................. 63 

W.G. Fairfield Co., 285 F.3d 499 (6th Cir. 2002) ........................................................................ 48 

Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980) .......................................................................... 80 

Statutes 

29 U.S.C. § 651, et seq.................................................................................................................... 3 

29 U.S.C. § 654(a)(1).................................................................................................................... 38 

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Federal Rules 

Fed. R. Evid. 407 .......................................................................................................................... 87 

Fed. R. Evid. 801(d)(2)(D) ......................................................................................... 12, 15, 52, 63 

Fed. R. Evid. 1006 ........................................................................................................................ 15 
PRELIMINARY STATEMENT 

On November 28, 2008, a Wal-Mart employee tragically died as a crowd of 

customers surged into Wal-Mart’s Valley Stream, NY store (the “Store” or the “Valley 

Stream Store”) during its annual day-after-Thanksgiving Day “Blitz Day” sales event 

(“Blitz Day Event” or “Blitz Day”). As graphically captured on video, numerous 

employees and customers were struck by the crowd, caught in repeated crowd crushes 

and surges, knocked to the ground and trampled, and pinned against the walls of the 

Store’s vestibule during the event. At least ten employees corroborated the horrific 

events depicted in the footage in their detailed testimony of, among other things, the 

unsafe conditions they faced inside and outside the Store, the inability to hold themselves 

upright as the crowd “busted through,” and the danger of asphyxiation from crowd 

pressure and trampling. Although these grave events were unfortunate, they were not 

unforeseeable for Wal-Mart. 

At every level of the company – from floor employees, Store management, 

regional managers, up to its corporate headquarters – Wal-Mart had actual knowledge of 

the crowd-related dangers posed to its employees on its busiest and most profitable 

shopping day of the year. Now, its feigned ignorance of these hazards is belied by the 

evidence, including extensive employee testimony and Wal-Mart’s own records reporting 

previous crowd-related problems at the Store and its other stores nationwide. 

Wal-Mart knew that crowds could knock down the front doors of the Store – 

indeed, the crowd surge had knocked the doors down at the Store’s three prior Blitz Day 

Events. Wal-Mart knew that the force of the crowds and the falling doors placed its 

employees directly in harm’s way – indeed, its own records contain extensive and 

1 
voluminous reports of crowd-related injuries at its stores during the prior five years. 

Wal-Mart knew that it lacked appropriate crowd management plans at its stores – indeed, 

its own managers stated that the “store should have had some type of crowd control” in 

place on Blitz Day. Wal-Mart’s Blitz Day planning documents further highlight its 

knowledge of the hazards, including the fact that the greatest dangers from crowds were 

present when the doors were opened on the morning of Blitz Day and that more than onethird of injuries on Blitz Day are “directly related to crowd control,” and the need to plan 

for crowd control. 

Yet, despite its knowledge of the serious crowd-related hazards and the large 

crowd expected for the event, Wal-Mart’s meager safety measures utterly failed to 

address these known hazards on Blitz Day 2008. In fact, the only additional measure 

utilized in 2008 that was different from prior years was the temporary placement of eight 

plastic hollow barriers forty feet away from the Store’s entrance, which were removed 

prior to opening. Wal-Mart’s woefully inadequate steps for Blitz Day 2008, and its 

inactions in the face of known hazards led to its employees’ exposure to significant risks 

of being struck by and/or asphyxiated by rushing, unmanaged crowds. Wal-Mart failed 

to protect its employees by utilizing effective crowd management measures that were 

available and would have mitigated the crowd-related hazards. Indeed, following the 

2008 Blitz Day and a criminal investigation by the Nassau County District Attorney’s 

Office, Wal-Mart itself developed a comprehensive crowd management plan, terms of 

which are consistent with the Secretary’s proposed abatement measures. 

To protect Wal-Mart’s employees, and all workers at large, planned retail events, 

the Secretary issued a single item citation, properly amended, pursuant to Section 5(a)(1) 

2 
of the Occupational Safety and Health Act (the “Act”) based on Wal-Mart’s recognition 

of the hazards of asphyxiation or being struck due to crowd crush, crowd surge, or crowd 

trampling. While November 28, 2008 marked the first time an employee died during 

Wal-Mart’s annual Blitz Day Event, Wal-Mart cannot escape liability simply because its 

employees were fortunate enough to survive crowd-related hazards in previous years. 

Wal-Mart violated the Act by failing to provide a workplace free from recognized crowdrelated hazards, and accordingly, the amended citation and proposed penalty should be 

affirmed. 

STIPULATIONS 

The parties agree that jurisdiction of this action is conferred upon the 

Occupational Safety and Health Review Commission by section 10(c) of the 

Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.). See Section VI of 

the Joint Pre-Hearing Statement, at 49, attached hereto as Appendix A. 

The parties further agree that, at all relevant times, Respondent was engaged in a 

business affecting commerce within the meaning of sections 3(3) and 3(5) of the Act and 

was an employer within the meaning of section 3(5) of the Act. Id. 

Respondent timely contested the citation at issue herein and the proposed penalty, 

pursuant to the provisions of section 10(c) of the Act. Id. 

Although the parties recognize that certain facts are undisputed, the parties were 

unable to agree as to how to characterize those facts. See App. A, § V at 30. 

3 
FACTUAL BACKGROUND AND PROPOSED FINDINGS OF FACT1

When Respondent opened the Store doors for its 2008 Blitz Day Event, waves of 

customers rushed through the entrance, knocking down the doors and flooding the 

vestibule. A Wal-Mart employee, Jdimytai Damour, was struck by the falling door and 

crowd, knocked to the ground and trampled, and subsequently died. Many others were 

struck, caught in the crowd surge, knocked to the ground, pinned to the wall, trampled 

and injured. On May 26, 2009, following an investigation by the Occupational Safety 

and Health Administration (“OSHA”), Respondent was issued a single item citation 

pursuant to Section 5(a)(1) of the Act arising out of this incident. As amended by the 

Complaint, the citation alleges that employees were exposed to the hazards of being 

struck or asphyxiated due to crowd crush, crowd surge, or crowd trampling and that 

Respondent failed to implement reasonable and effective crowd management to prevent 

these hazards.2

 

1

 To the extent any proposed findings of fact appear in the Argument section below and 

are not contained in this section, citations to the record have been included. 

2

 Crowd crush is defined as being pressed between bodies of people in a group. Tr. at 

318:13-15; 327:20-25, 328:8-329:6 (discussing Sec. Ex. 35b (video footage from the 

Valley Stream Store’s November 28, 2008 Blitz Day Event)); 332:20-22, 334:23-335:7 

(discussing Sec. Ex. 35a (video footage from the Valley Stream Store’s November 28, 

2008 Blitz Day Event)). 

Crowd surge is defined as the sudden movement of a group of people in a swelling 

manner, like a wave. Tr. at 318:17-18, 326:23-327:19, 328:3-9, 328:21-329:6 (discussing 

Sec. Ex. 35b); 332:10-14 (discussing Sec. Ex. 35a). 

Crowd trampling is defined as the act of being pushed down by people in a crowd. Tr. at 

318:20-22, 327:20-25, 328:8-18, 328:21-329:6 (discussing Sec. Ex. 35b); 332:10-12 

(discussing Sec. Ex. 35a). 

Crowd management is defined as the systematic and comprehensive planning for and 

management of groups of people. Tr. at 318:3-5. See also Sec. Ex. 38 (10 Questions to 

Ask During a Crowd Management Case) at 1 (“Crowd management refers to the 

proactive steps that can be taken to prevent potential problems at a facility.”). 

4 
A. Wal-Mart Corporate Structure 

¶1 Wal-Mart Stores, Inc. (“Wal-Mart”), a Delaware corporation, maintains its 

principal office and place of business in Bentonville, Arkansas (“the Home Office”). 

Compl. ¶ II; Answer ¶ II. Wal-Mart owns approximately 4,200 retail stores throughout 

the United States, including the Valley Stream Store. Sec. Ex. 148 (M. Mullins Dep. Tr.) 

at 30:15-17, 32:4-7. The company is divided into divisions, regions, markets and store 

levels, and the Valley Stream Store is part of what is called Market 45. Sec. Ex. 152 (S. 

Sooknanan Dep. Tr.) at 31:5-14. 

¶2 Salvatore D’Amico was the Market Asset Protection Manager for Market 

45 in 2008; he reported to the Regional Asset Protection Director, who reported to the 

Divisional Asset Protection Director. Tr. at 185:14-22, 186:7-12, 187:7-22. The 

divisional director reported to the Vice President of Asset Protection, a position based in 

the Home Office. Tr. at 187:7-22. Monica Mullins has been the Vice President of Asset 

Protection and Safety for Wal-Mart since 2007, and she oversees asset protection and 

safety for all Wal-Mart stores in the United States. Sec. Ex. 148 at 27:13-17, 27:18, 

28:18-19, 36:19-24. Prakash Steve Sooknanan was the Store Manager during the 2008 

Blitz Day Event, and he was considered part of the management team for Market 45. 

Sec. Ex. 152 at 30:11-17, 31:5-14. 

B. Wal-Mart Safety Policies and Procedures: Incident and Accident 

Reporting 

¶3 The Home Office sets safety policies for all Wal-Mart stores nationwide. 

Sec. Ex. 148 at 51:10-14. The Home Office generally communicates its policies to the 

 

Crowd control is defined as the planned limitation or restriction of crowd behavior, 

crowd movement, and crowd density. Tr. at 318:8-10. 

5 
field through e-mails targeted to specific levels. Sec. Ex. 148 at 52:13-23. For example, 

Wal-Mart uses a “safety playbook,” available through Wal-Mart’s intranet, the WIRE, to 

communicate to individual stores specific safety measures that it wants stores to 

implement. Sec. Ex. 148 at 57:2-6. Once these policies are communicated, it is expected 

that they are carried out at the divisional, regional, market and store levels. Sec. Ex. 148 

at 51:18-52:3. Resources regarding policies and procedures are also made available on 

the WIRE. Tr. at 232:4-6, 20-24. Although the Home Office could have required certain 

crowd management and/or crowd control measures for Blitz Day events at its stores, prior 

to 2009, it opted not to do so. Tr. at 186:7-187:22, 188:3-10, 15-23, 232:7-18. 

1. Claims Management, Inc. as Wal-Mart’s Injury Claims 

Administrator

¶4 Claims Management, Inc. (“CMI”) is the administrator of Wal-Mart’s 

general liability and worker’s compensation claims. Sec. Ex. 148 at 77:18-21, 78:3-7. 

As described below, all injuries at Respondent’s stores are reported to CMI for 

processing, handling and analysis as directed by Wal-Mart. CMI is a wholly owned 

subsidiary of Wal-Mart that may have some of the same corporate officers as Wal-Mart. 

Sec. Ex. 148 at 78:8-13. CMI has been used by Wal-Mart since at least 1998, and CMI 

does not serve any clients other than Wal-Mart. Sec. Ex. 148 at 78:22-25, 80:13-16. 

CMI is located 20 minutes from Wal-Mart’s Home Office. Sec. Ex. 148 at 79:2-7. CMI 

pays claims on behalf of Wal-Mart, and requires approval to settle and pay claims above 

a certain financial threshold. Sec. Ex. 148 at 79:8-10, 80:5-12. Effectively, CMI is a unit 

within the Wal-Mart corporate structure. See Answer, Corporate Disclosure Statement. 

6 
2. Reporting Claims

¶5 Incidents and accidents are reported in Respondent’s claims reporting 

system. Respondent distinguishes an incident – an occurrence that has resulted in an 

injury or property damage – from an accident – something that results in medical 

treatment or lost time from work for the injured party. Sec. Ex. 148 at 66:7-14. 

¶6 Incidents are reported on Wal-Mart’s incident reporting log available on 

its intranet, the WIRE. Sec. Ex. 148 at 66:15-23. These logs are maintained at the store 

level for three to five years. Sec. Ex. 148 at 68:10-16. 

¶7 Accidents or incidents involving employees and/or customers are also 

reported electronically by Wal-Mart through CMI’s Incident Reporting System (“IRS”). 

Sec. Ex. 148 at 72:15-22, 73:2-4, 17-19, 83:18-21. A member of Wal-Mart management 

completes the report online on the IRS, which is available on store computers and 

connected to Wal-Mart’s own intranet. Sec. Ex. 148 at 72:11-22; Sec. Ex. 152 at 53:16-

54:15. For accidents, corporate policy mandates that stores scan and send supporting 

documents to CMI, including a statement from the injured party, videos, photos, and a 

description of the injury from a list of pre-set injury codes provided in the reporting 

program is assigned. Sec. Ex. 148 at 74:5-9, 75:14-24; Sec. Ex. 152 at 54:16-22, 55:3-

13. The pre-set injury codes include categories for “struck by another” and “slip, trip, 

and fall.” Sec. Ex. 148 at 144:12-18. Furthermore, Respondent maintains a hard copy of 

the entire report record, including supporting documentation, with the individual store. 

Sec. Ex. 148 at 75:25-76:4. Importantly, with respect to reported claim files of incidents 

or accidents at Wal-Mart stores, including the corroborating witness statements and 

photographic/video footage, Respondent has stipulated that it has no further information 

7 
regarding those matters apart from the documents it produced during discovery. Sec. Ex. 

148 at 116:25-118:5. Furthermore, Respondent has no information to contradict the 

manager statements contained in such records. Id. 

3. Access to Accident History and Summary Reports 

¶8 Respondent has unrestricted access to both employee and customer 

accident claims. In particular, all members of the management team, which includes 

managers at the store, regional, district and corporate levels, have general access to basic 

information about claims from Wal-Mart’s internal electronic system. Sec. Ex. 148 at 

69:8-20, 94:17-95:9. For example, members of management – including those in the 

Home Office – have access to claims at all the stores, including information regarding 

store location, description of injury, date and time of incident, whether any work was lost 

by the claimant, and whether any medical attention was required. Sec. Ex. 148 at 94:13-

97:13. Moreover, each Wal-Mart store has access to its own accident claims history. 

Sec. Ex. 148 at 62:11-15. 

¶9 In addition, Respondent can also access more detailed claim information 

from CMI. For example, the Home Office and Wal-Mart managers have access to all of 

the claims by request to CMI, or directly by viewing the claims form itself on Wal-Mart’s 

internal electronic system. Sec. Ex. 148 at 99:2-17. Further, individual Wal-Mart 

employees can also request information about employee and customer claims from CMI. 

Sec. Ex. 148 at 88:6-8. Likewise, Respondent can and does access hard copies of claims 

records by category. For example, in this case, Respondent produced more than 2,500 

pages of claims records from over 100 claims, in response to discovery requests seeking 

information on incidents where employees and/or customers were struck by or injured by 

8 
crowds entering its store doors at Blitz Day Events from 2003-2008. Sec. Ex. 148 at 

104:21-25. 

¶10 Additionally, accident incidence and summary reports can be requested by 

Respondent, and upon request, the analysis reports are prepared and generated from the 

information stored by CMI. Sec. Ex. 148 at 89:5-25. For example, the Asset Protection 

and Safety Divisions have the authority and the ability to request reports from CMI 

whenever needed to conduct their business. Sec. Ex. 148 at 91:2-5. The reporting 

system allows the claims to searched by date, and the search can be limited to specific 

time frames or specific injuries by key fields. Sec. Ex. 148 at 108:9-14. Therefore, 

reports can be requested by type of injury, location of injury, and frequency of injury by 

hour of the day (i.e., all “struck by” injuries in the vestibule between the hours of 5:00 

a.m. and 6:00 a.m. on Blitz Day). Sec. Ex. 148 at 89:16-25, 106:5-108:8. The data, 

thereafter, is aggregated based on the specific request and a summary report is generated. 

Sec. Ex. 148 at 89:24-25. 

¶11 Indeed, just weeks prior to the 2008 Blitz Day Event, Wal-Mart personnel 

requested such a summary of incidents and accidents that specifically occurred in the 

vestibule of its stores on prior Blitz Days. See Sec. Ex. 55 (October 21, 2008 e-mail 

attaching safety portion of AP Broadcast and PowerPoint presentation titled “Blitz Day % 

of Accident Free Stores by Division, By Year”); see also Sec. Ex. 148 at 106:5-10, 143:9-

11. The information was generated at the request of Wal-Mart analysts and the report 

was reviewed by Vice President of Asset Protection Monica Mullins before its 

distribution. Sec. Ex. 148 at 136:8-17, 137:13-16. This safety presentation ultimately 

was used for an Asset Protection broadcast to the field via Wal-Mart satellite television 

9 
and was dispersed to all stores throughout the U.S. approximately one month before the 

2008 Blitz Day Event. Sec. Ex. 148 at 133:16-134:3. In particular, this report notified 

Wal-Mart personnel nationwide that “13 percent of general liability claims on Blitz Day 

in 2007 occurred in the vestibule.” Sec. Ex. 148 at 143:3-5; see also Sec. Ex. 55 at 5. In 

addition, it was noted that 13% of Blitz Day 2007 claims involved individuals reporting 

injuries from being struck by another person. Sec. Ex. 148 at 143:19-22; see also Sec. 

Ex. 55 at 5. Further analysis of the claims by number of incidents by hour of the day 

clearly demonstrated that the number of incidents spiked at 5:00 a.m. – just when the 

store doors are opened for Blitz Day sales. Sec. Ex. 148 at 144:19-146: 9; see also Sec. 

Ex. 55 at 5. 

¶12 In the claims records, MGR refers to manager, id. at 128:20-24; AM refers 

to assistant manager, id. at 129:1-4; SM refers to store manager, id. at 129:10-13; MOD 

refers to manager on duty, id. at 129:22-130:2; and AP refers to asset protection 

personnel, id. at 129:18-21. 

C. Blitz Day Events at Wal-Mart Stores

¶13 The day-after-Thanksgiving Day “Blitz Day” sales event is Wal-Mart’s 

largest sale and shopping day of the year and its biggest annual sales event. Sec. Ex. 53 

(NYIT video, on DVD labeled File footage from Wal-Mart prior to Black Friday 

incident, 11/24/2008) from 0:00 to 01:00 (see Tr. of Sec. Ex. 53 at 4:2-7). Prior to 2009, 

many Wal-Mart stores (including the Valley Stream Store) opened early for business at 

5:00 a.m. on Blitz Day and offered certain deeply discounted items advertised while 

supplies lasted from 5:00 a.m. until 11:00 a.m. on the day of the sale. Sec. Ex. 51 (WalMart 2008 Blitz Day Advertisement, in color); Sec. Ex. 52 (Wal-Mart 2008 Blitz Day 

10 
Advertisement, in black & white). As described by Store Manager Steve Sooknanan, in a 

videotaped interview prior to Blitz Day 2008: “it’s always the same. It’s always in the 

morning, you know, the big rush and getting everybody through the door and everybody 

running towards that great item....” Sec. Ex. 53 from 02:00 to 03:00 (see Tr. of Sec. Ex. 

53 at 6:10-13). 

1. Crowd-Related Incidents on Blitz Days at the Store Prior to 2008 

¶14 The Valley Stream Store first opened for business in December of 2003, 

and has held Blitz Day sales events every year since. Sec. Ex. 50 (Respondent’s Third 

Supplemental Responses to Interrogatories) at 2 & 3. Although these special sales events 

were known to attract larger than normal crowds, the Store did not have a comprehensive, 

systematic crowd management plan in place. Rather, it was up to each individual store 

manager to determine what, if any, crowd management measures were necessary based 

on their knowledge of the store, previous Blitz Days and local conditions. Sec. Ex. 148 at 

220:12-19. In certain years, for example, the Store utilized shopping carts to prevent the 

customers waiting on the sidewalk outside the store from going into the fire lane. Sec. 

Ex. 50 at 4; see also Sec. Ex. 152 at 71:9-72:6. In at least one other year, employees were 

instructed to pick up personal effects and debris in the vestibule and help people up who 

fell. Sec. Ex. 152 at 106:7-18. In one year, Store Manager Sooknanan even created a 

map that was handed out to customers, which included a specific instruction to “refrain 

from running as you enter the store to avoid injuring fellow shoppers and our associates.” 

Sec. Ex. 69 (Map of Valley Stream Store for Blitz Day 2006 or 2007). 

¶15 Notably, beginning in 2005, at each and every Blitz Day at the Store, the 

outer vestibule doors were knocked down as the customers entered the Store at opening. 

11 
Sec. Ex. 50 at 3; Sec. Ex. 142 (Respondent’s Certified Response to Interrogatories No. 22 

& 23) at 6. During Blitz Day 2005, the outer vestibule doors were knocked off the frame 

by customers pushing on the doors as they rushed into the Store, and at least two injuries 

were reported as a result of the rushing crowds. Sec. Ex. 48 (Respondent’s Supplemental 

Response to Interrogatories) at 9 (“Respondent is aware of injuries to two customers 

caused by an entering or rushing crowd during Blitz Day 2005. See claims 4847496 and 

4836912 in the documents produced herein.”); see also Sec. Ex. 50 at 2. In the records 

regarding one of the reported injuries, Store Co-Manager Kenneth Worthington stated 

that he observed people from the parking lot pushing their way into the Store when the 

doors opened at 5:00 a.m., and that “[t]he customers broke the doors completely off 

including the motor.” Sec. Ex. 129 (Claim #4847496) at 3, box 1.3 

¶16 Similarly, during Blitz Day 2007, customers were pushing against the 

doors as they tried to enter the building in a manner that concerned Store Manager 

Sooknanan. Sec. Ex. 152 at 203-204, 223:25-236:10. In fact, he felt that the customers 

got too close to the door for his comfort. Id.; Tr. at 1042:4-6. Department Manager 

Justin Rice and approximately five other employees were instructed to position 

themselves between the crowd and the Store’s outer vestibule doors so that the doors 

could be opened. Tr. at 129:12-16, 130:7-15. Not only did the outer vestibule doors 

break as a result of customers pushing on the doors as they entered the Store, the glass 

from above the doors also shattered and fell on Wal-Mart employees, cutting the hand of 

 

3

 Respondent has stipulated that it is not aware of any information contradicting the 

statements of Mr. Worthington in the 2005 customer injury claim forms. Sec. Ex. 148 at 

116:25-118:5; Sec. Ex. 152 at 86:13-22. In any event, statements by Respondent’s 

managers contained within injury claim records constitute admissions of a partyopponent and thus are admissible as non-hearsay. See Fed. R. Evid. 801(d)(2)(D). 

12 
Mr. Rice. Tr. at 124:9-23; 131:7-24; 1042:23-1043:14; Sec. Ex. 152 at 148:18-21. 

Several employees including Mr. Rice, moreover, were pushed by the crowd against the 

walls of the vestibule and pinned against the wall for several minutes. Tr. at 122:16-

123:10, 123:16-19, 124:1-8. Specifically, while Mr. Rice was pinned against the 

vestibule wall, customers were bumping him, stepping on his shoes, stumbling over him 

and hitting his arms as they fell entering the Store. Id. 

2. Crowd-Related Incidents on Blitz Days at Wal-Mart Stores 

Nationwide Prior to 20084

¶17 Such incidents and injuries resulting from rushing Blitz Day crowds were 

not unique to the Valley Stream Store; Respondent knew of numerous similar reported 

crowd-related incidents and hazardous conditions at its other stores nationwide prior to 

2008. Indeed, as evidenced by its internal records, Respondent had notice of over 160 

reports of incidents or injuries to employees and customers who were struck or injured by 

crowds entering or rushing through Respondent’s stores during Blitz Days in 2003-2007 

across the country. See, e.g., Sec. Exs. 112-123, 127 (prior injury records of employee 

and customer injuries, produced by Respondent). Indeed, in its discovery responses, 

which Respondent was ultimately compelled by the Court to produce, Respondent 

admitted notice of over 100 such incidents. Sec. Ex. 48 at 15-16 (Respondent listed 114 

incidents which met the following limited criteria: (1)“employees and/or customers who 

were struck or injured by crowds entering or rushing through the store,” (2) from 

 

4

 Respondent was ordered to produce documents regarding prior Blitz Day Events for the 

limited time frame of 2003 to 2008. See Chief Judge Sommer’s Order of March 17, 

2010. Accordingly, the timeframe of evidence presented herein is similarly limited in 

scope. 

13 
“centrally-located” information, (3) from “a period of five years before the subject 

incident,” and (4) on Blitz Days (and a few other limited holidays)). 

¶18 In particular, Respondent’s own records show knowledge of many crowdrelated incidents and injuries reported at prior Blitz Days at its stores, including, for 

example: 

(1) Respondent’s store manager stated that claimant “ran through the doors 

and either got tripped up or knocked down and she got trampled...no crowd control 

measures specifically...store should have had some type of crowd control.” Sec. Ex. 127 

at 1403 (emphasis added). 

(2) Respondent’s employees were “knocked down and trampled by 

customers.” Sec. Exs. 112, 113. 

(3) Respondent’s employees were “struck by Blitz rush customers.” Sec. Exs. 

118, 119, 127 at 31. 

(4) Respondent’s employees were “injured” during “Blitz rush.” Sec. Exs. 

116, 117, 120-123. 

(5) Respondent’s store manager stated that “when the doors were opened, it 

created a stampede, [customer] was pinned up against something...” Sec. Ex. 127 at 415. 

(6) Customer “sustained a head injury when the doors to Wal-Mart were 

opened for a Black Friday sale and he was stampeded by a hoard of customers.” Sec. Ex. 

127 at 707. 

(7) “Customer was pinned by crowd while entering the store...[and] was 

crushed under the people.” Sec. Ex. 127 at 99, 102. 

14 
(8) Customer was “trying to get in the door and got slammed into it and 

pinned against it.” Sec. Ex. 127 at 208. 

(9) Claimant was “injured at the store location during blitz day sales event due 

to W/M allegedly providing no crowd control.” Sec. Ex. 127 at 1011. 

(10) “Once the doors were opened, the crowd began running. The [associates 

and managers] were actually shoved aside and had to push their way thru [sic] the crowd. 

Could not see the [claimant] fall but it was apparent she had [because] the [managers and 

associates] were pushing their way thru [sic] the crowd. Nothing on the floor to cause 

her to fall...[Claimant] was trampled by the crowd when doors were opened for Blitz.” 

Sec. Ex. 127 at 1151, 1153. 

¶19 Respondent cannot deny that all of these injuries were reported and 

recorded in its records. See also Summary Chart of Prior Claims Forms, attached hereto 

at Appendix B.5

 

¶20 According to internal company e-mails from Wal-Mart Divisional Safety 

manager Joe Dial, moreover, Wal-Mart knew that the largest occurrence of customer 

accidents happened during the first hour of the Blitz Day Event (i.e., between 5:00 a.m. 

and 6:00 a.m.). Sec. Ex. 12 (November 12, 2008 e-mail from S. D’Amico to J. Blair, A. 

 

5

 The Secretary maintains the relevance and admissibility of all pages of prior claims 

forms included in Sec. Ex. 127, which was admitted in its entirety during the Secretary’s 

case-in-chief. Tr. at 9:3-10:6. However, as directed by Your Honor at the close of the 

hearing, the Secretary submitted a summary chart of certain information and statements 

contained in Sec. Exs. 112-123, 127, 129 & 130 that are particularly relevant in 

establishing Respondent’s notice of hazards associated with Blitz Day crowds and 

admissions by managers. See App. B; see also Fed. R. Evid 801(d)(2)(D). This 

summary chart, with the corresponding highlighted sections of these exhibits, was 

provided as an aid to Your Honor given the large number of prior crowd-related Blitz 

Day incidents and injuries recorded in Respondent’s claims forms documents. See Fed. 

R. Evid 1006. 

15 
Gilroy and others) at 2; Sec. Ex. 55 at 2; Sec. Ex. 148 at 19:20-20:24. In fact, Mr. Dial – 

who was responsible for developing business safety plans for Wal-Mart – reported that 

36% of total claims from Blitz Days were “directly related to crowd control.” Sec. Ex. 

12 at 2, Sec. Ex. 55 at 2 (emphasis added); Sec. Ex. 148 at 20:15-24. 

D. 2008 Blitz Day Event 

1. Preparation for the 2008 Blitz Day Event 

¶21 The Home Office, through its Fourth Quarter Safety Playbook, made clear 

that all Wal-Mart stores should be consistent in their focus on safety measures throughout 

the holiday season. Sec. Ex. 9 (October 21, 2008 e-mail from S. D’Amico); Sec. Ex. 148 

at 157:2-13. Indeed, it was widely acknowledged that it was the “peak timeframe” for 

accidents “due to increased customer traffic.” Sec. Ex. 10 (October 31, 2008 e-mail from 

D. McHale to S. D’Amico and others) at 1; see also Sec. Ex. 3 (Blitz and Holiday 

Security Focus 2008) (discussing need for crowd control and customer safety for Blitz 

Day), Sec. Ex. 5 (Excerpt from Safety Playbook FY09: Holiday Safety Strategy 4th 

Quarter) (discussing “increased traffic during the early morning hours” of Blitz Day); 

Sec. Ex. 16 (Valley Stream Store safety committee notes, 2008) at 7 (“Plan for Blitz” 

lists “crowd control”); Sec. Ex. 54 (October 17, 2008 e-mail from B. Broadus to Region 1 

AP) at 2 (discussing need to “focus on crowd control and crowd flow”). Indeed, WalMart did not merely expect larger crowds on Blitz Day morning – it actively attracted 

these crowds for a limited supply of deeply discounted sales items offered during a 

limited time period (i.e. 5:00 a.m. to 11:00 a.m. on Blitz Day). See Sec. Ex. 51; Sec. Ex. 

52. 

16 
¶22 Despite its awareness of crowd-related hazards and the need for crowd 

control, prior to 2009, Respondent lacked comprehensive crowd management policies 

and procedures in connection with its annual Blitz Day sales events. Rather, it was left to 

each individual store manager to determine what, if any, crowd management measures 

were necessary based on their knowledge of the store, previous Blitz Days and local 

conditions. Sec. Ex. 148 at 220:12-19. Moreover, these measures were not reviewed by 

the Home Office, and indeed the Home Office did not even verify that individual stores 

had, in fact, created any safety plans at all. Sec. Ex. 148 at 158:21-24. Notably, in prior 

years for other large sales events – such as the 2007 widely anticipated release of a new 

Harry Potter book – the Home Office developed a detailed safety playbook for its stores 

nationwide that specifically addressed crowd management issues. Sec. Ex. 70 (WalMart’s Harry Potter Playbook, 2007) at 1, 3 & 11 (Wal-Mart’s 2007 Harry Potter plan 

included crowd management measures such as queuing, positioning employees outside 

the store to provide information to the crowd, and the use of multi-colored wrist bands 

and tickets as a means to manage crowd safety.). 

i. The Store’s “Game Plan” 

¶23 Based on “a very positive response” generated by Wal-Mart’s Blitz 

advertisement circulars, Respondent expected “heavier customer traffic than normal for 

[2008] Blitz Day.” Sec. Ex. 15 (November 25, 2008 e-mail from S. D’Amico to J. Blair 

and others) at 2. Stores were advised to “ensure action plans for crowd control...[were] 

in place.” Id. After receiving this notification, however, Mr. D’Amico – who as Market 

Asset Protection Manager was responsible for Blitz Day safety planning – took no 

additional steps. Tr. at 235:2-7, 260:3-7. Rather, he simply relied on his “game plan” for 

17 
Blitz Day for the Store, entitled “Black Friday Market 45 Action Plan.” Tr. at 222:1-3, 

235:6; Sec. Ex. 2 (Black Friday Market 45 Action Plan, 2008). This “game plan,” 

however, did not constitute a crowd management plan for the 2008 Blitz Event at the 

Store. Sec. Ex. 148 at 159:21-23; Tr. at 368:10-23, 372:2-11. Indeed, Mr. D’Amico had 

no experience involving crowd management or crowd control during his employment 

with Wal-Mart. Tr. at 180:12-25, 181:11-17, 182:16-22, 185:9-13. Many aspects of this 

“game plan,” moreover, were never even implemented at the Store. See, e.g., Tr. at 

1060:15-18. 

¶24 Wal-Mart managers, including Mr. Sooknanan, Mr. Rice and Asset 

Protection Coordinator Julius Blair, had concerns regarding the 2008 Blitz Day crowd 

because in the prior year, customers pushed the front door and got too close to the 

entrance. Tr. at 1047:7-14, 1047:22-1048:1; Sec. Ex. 152 at 159:24-160:19, 207:7-23, 

209:9-13; Sec. Ex. 145 (J. Blair Dep. Tr.) at 101:14-102:18; see also Sec. Ex. 53 from 

17:00 to 18:00 (see Tr. of Sec. Ex. 53 at 18:19-20, 18:23-19:2, 19:7-9). In fact, prior to 

Blitz Day 2008, Mr. Rice met with Mr. Sooknanan and advised him that he had safety 

concerns for Blitz Day 2008 based on his experience working at the Store on Blitz Day 

2007 and the door falling off the hinges that year. Tr. at 1047:22-1048:1; Sec. Ex. 152 at 

220:5-16, 221:3-17. Mr. Rice recommended to Mr. Sooknanan that the Store use movie 

ropes to help manage the crowd outside for Blitz Day 2008 and “make it safe.” Tr. at 

135:6-15, 136:7-13. On another occasion, during a videotaped Store planning meeting 

days prior to Blitz Day 2008, Mr. Rice asked Mr. Sooknanan for additional help at the 

door for Blitz Day 2008. Sec. Ex. 53 from 17:00 to 18:00 (see Tr. of Sec. Ex. 53 at 

18:19-20). 

18 
¶25 While the Store hired 20 temporary employees from True Blue, Inc, d/b/a 

Labor Ready (“Labor Ready”) to work each night during the holiday season, these 

employees were not hired to assist with crowd management or provide security. Tr. at 

1044:14-1045:10; Sec. Ex. 152 at 170:7-22, 171:2-5, 17-19, 179:18-21. Rather, these 

employees were hired specifically to help unload merchandise from the warehouse, clear 

the store, and prepare for the next business day throughout the holiday season. Sec. Ex. 

152 at 172:11-173:9; Sec. Ex. 57 (Labor Ready Job Order Sheet, 11/22/2008). Their 

limited role was underscored by the fact that the only “site-specific” training provided to 

the temporary employees by Respondent was regarding the proper use of a box cutter, 

and nothing regarding crowd management or crowd control. Sec. Ex. 152 at 178:3-14, 

226:8-19, 227:6-11, 17-25, 228:9-13; see also Sec. Ex. 58 (Labor Ready contract, signed 

by S. Sooknanan, 11/22/2008) at ¶ 4 (noting that Wal-Mart was responsible for 

“provid[ing] any necessary site-specific training and equipment”). Mr. Sooknanan took 

no steps to find out if the temporary employees were even trained in crowd management 

or crowd control. Sec. Ex. 152 at 178:24-179:4. As detailed below, some of these new, 

temporary employees – including the decedent Mr. Damour – ended up working outside 

the Store and in the Store’s vestibule during the 2008 Blitz Day Event. Tr. at 916:4-13. 

ii. Construction Barricades 

¶26 Concerned by the crowds from the previous year, Mr. Sooknanan wanted 

to keep the line farther away from the door in 2008. Sec. Ex. 53 at 17:00 to 18:00 (see

Tr. of Sec. Ex. 53 at 18:23-19:2, 19:7-9); Tr. at 1047:11-14. The only measure he 

utilized to address this concern in 2008 that was different from prior years, however, was 

the use of a few barricades set 40 feet from the Store doors. Sec. Ex. 152 at 221:3-11, 

19 
237:25-238:4. Mr. Sooknanan instructed the use of barricades as a means to control the 

customers in line. Sec. Ex. 152 at 163:9-12; compare Sec. Ex. 2 at 1 (use of cones and 

caution tape to “control the line”). Mr. D’Amico, however, did not instruct the Store to 

use barricades; in fact he first learned of the barricades when he visited the Store the day 

before the Blitz Day Event. Tr. at 224:19-25. 

¶27 Without specifying the type or number, approximately one week before 

the 2008 Blitz Day Event, Mr. Sooknanan simply told Mr. Blair to order barricades. Tr. 

at 1051:9-12, 22-24; Sec. Ex. 152 at 238:10-19. Unaided, Mr. Blair ordered eight plastic 

hollow construction barricades, each six-foot long, from Highway Technology, Inc. Sec. 

Ex. 142 at 8; Sec. Ex. 152 at 238:5-9, 242:22-23; Sec. Ex. 47 (Respondent’s Response to 

Secretary’s First Set of Interrogatories) at 7. The evening before the Blitz Day Event, 

Mr. Blair, with help of other untrained employees, set up the eight interlocking barricades 

in a simple L-shape formation. Sec. Ex. 152 at 240:10-11, 242:22-23; Tr. at 1053:23-25. 

The barricades were set approximately 40 feet from the vestibule doors. Sec. Ex. 152 at 

241:7-13, 164:15-23; Sec. Ex. 47 at 7. The use of barricades for this event, however, was 

inadequate and problematic. Among other problems, the design and type of barriers used 

was not appropriate for crowd control purposes, and the barricades were not properly 

configured to queue the customers and assist with orderly, controlled customer flow into 

the building. Tr. at 379:19-24, 380:16-382:1. Moreover, whatever residual value these 

barriers might have had for such purposes dissipated as soon as the barriers were 

removed, as was done prior to the Store’s opening. Tr. at 1062:4-18 

¶28 Mr. Sooknanan did not direct the use of any other devices to maintain the 

crowd in a certain area. Sec. Ex. 152 at 243:3-6. Indeed, no other crowd management 

20 
measures were implemented for Blitz Day 2008. Tr. at 78:12-21 (no other crowd 

management devices used other than barricades); 1060:15-18 (no caution tape or cones 

used to control line); 1065:1-3 (pull tags or tickets were not distributed); 1065:14-17 

(metering, allowing limited number of customers into the Store as others left, was not 

done); 1076:22-1077:10 (no walkie-talkies were given to employees specifically for Blitz 

Day to assist in communications other than those working inside the Store in the 

Electronics Department and Asset Protection). Rather, Mr. Sooknanan and Mr. D’Amico 

simply instructed that any employees working in the vestibule at the time of the opening 

of the Store doors should “step to the side” to avoid the crowd entering the Store. Tr. at 

246:20-247:10, 883:2-11, 888:2-11, 915:6-11; Sec. Ex. 150 (E. Sanders Dep. Tr.) at 

40:24-41:1; see also Tr. at 1088:7-10 (Sooknanan did not tell employees where 

specifically to go to stay out of way of entering crowd). 

iii. No Training in Crowd Management or Crowd Control 

¶29 Despite concerns regarding the Blitz Day crowds, not a single one of the 

many Wal-Mart employees (including temporary employees) working at the 2008 Blitz 

Day Event received any training whatsoever in crowd management and/or crowd control 

from Wal-Mart. Tr. at 1028:5-12, 1045:11-14; Sec. Ex. 152 at 43:19-22; see also Tr. at 

69:20-22, 132:20-22, 189:9-11, 856:18-857:6, 900:7-19, 1027:8-19; Sec. Ex. 145 at 

149:2-7; Sec. Ex. 150 at 41; Sec. Ex. 48 at 14. In particular, no employee received any 

training from Wal-Mart on crowd control and/or crowd management, how to ensure the 

safe and orderly entrance of people into and out of the store, how to reinstate order 

should a crowd become unruly, or how to protect employees and customers from a crowd 

that had become unruly. Sec. Ex. 152 at 40:18-41:16, 41:17-25, 43:8-13; Sec. Ex. 148 at 

21 
223:23-224:8; see also Tr. at 72:1-14, 132:23-133:9, 190:5-17, 856:18-857:6, 900:7-19, 

1027:8-19; Sec. Ex. 145 at 149:8-150:3; Sec. Ex. 150 at 41. 

2. The Events of November 28, 2008 

i. Preparation for the Store’s 5 a.m. Opening 

¶30 Customers began lining up outside the Store at approximately 5:30 p.m. 

on November 27, 2008, the evening before the Blitz Day Event. Sec. Ex. 142 at 8. Store 

Manager Sooknanan left the Store for the night at 11:00 p.m., while his employees 

performed “manual tasks” overnight to prepare for the sale. Tr. 1053:10-18. In the hours 

prior to opening for Blitz Day 2008, employees re-positioned vending machines to bisect 

the vestibule. Sec. Ex. 47 at 7. By 2:00 a.m., there were reportedly more than 1,000 

people gathered outside the Store. Sec. Ex. 142 at 9. 

¶31 Around 3:00 a.m., Mr. Sooknanan spoke to Assistant Manager Mike 

Sicuranza on the phone, and learned that customers had jumped the barricades and were 

crowding the Store’s entrance. Tr. at 1084:2-4, 6-11; Sec. Ex. 152 at 244:14-25. Mr. 

Sooknanan also spoke with Mr. Blair on the phone, who confirmed that customers had 

jumped the barricades at 3:00 a.m. – two hours before the doors were scheduled to open. 

Tr. at 1084:12-20; Sec. Ex. 152 at 245:3-10. 

¶32 Sounding very frightened, Mr. Sicuranza told Mr. Sooknanan he was 

scared to open the door. Sec. Ex. 152 at 244:14-25; Tr. at 1084:2-4, 6-11. Mr. 

Sooknanan directed Mr. Sicuranza to send the largest employees to manage the crowd 

outside. Sec. Ex. 142 at 10. Accordingly, Mr. Sicuranza instructed several employees to 

form a human-chain inside the barricades to keep customers out of the entrance area. Id. 

These employees included Mr. Sicuranza, Mr. Blair, Mr. Damour, Andrew Gilroy, Dante 

22 
Wedderburn, Santiago Corporan, Damion Ricketts, Dennis Fitch, Andre Cook, Antoine 

Lewis, Roydell Shaw, Dennis Smokes, Khareem Thomas, Eric Sobotcher, and two 

unidentified temporary workers. Id. As noted above, none of these employees had 

received any crowd management or crowd control training from Wal-Mart. Because they 

were not able to keep customers outside of the buffer zone created by the barricades, all 

employees were eventually directed to come back inside the Store. Id. at 11. 

¶33 The token few employees who purportedly were tasked with walking the 

length of the line outside and communicating with customers did not do so in any kind of 

meaningful way, particularly given the large crowd of waiting customers. Tr. at 385:16-

386:10. At approximately 4:00 a.m., Mr. Sooknanan arrived at the Store and saw police 

cars in the parking lot. Sec. Ex. 152 at 247:25-248:3. Mr. D’Amico arrived at 

approximately the same time and observed people standing right by the front doors of the 

glass vestibule; he saw that there was no buffer zone between the crowd and the Store. 

Tr. at 241:13-20. In light of the concerning situation, approximately 15 minutes later, 

Mr. Sooknanan held a meeting with employees. Sec. Ex. 152 at 252:7-13, 17-24. In the 

meeting, however, he simply instructed the employees to try to “stay out of the way” of 

the customers that were going to come into the Store. Sec. Ex. 152 at 253:7-12. 

¶34 Around 4:30 a.m., Mr. D’Amico informed Mr. Sooknanan that the 

customers had “compromised the barricade again,” and that employees were outside 

attempting to back them out of the buffer zone. Sec. Ex. 152 at 254:24-255:5; Tr. at 

1088:11-23, 1089:11-15. Customers were pushing and banging on the glass doors, and 

Mr. D’Amico heard what sounded like popping coming from the top of the door frame. 

Tr. at 243:21-244:2. Mr. D’Amico and Mr. Sooknanan saw the Store doors and the entire 

23 
glass facade of the vestibule starting to shake due to the mounting pressure being applied 

by the crowd, and they were both concerned that the doors would fall in and shatter. Tr. 

at 244:5-12, 19-21, 1018:22-1019:2, 1099:11-22. Indeed, Mr. D’Amico discussed with 

Mr. Sooknanan his concerns about the crowd being so close to the front door. Tr. at 

245:3-11, 1088:11-23, 1089:11-15. Faced with this situation, Mr. Sooknanan held 

another meeting inside the Store, but again, simply instructed employees to move to the 

side when customers came into the Store. Tr. at 883:2-11, 915:6-11. 

¶35 Mr. D’Amico then asked employees to go outside and “try and wedge 

themselves” between the Store’s entrance doors and the crowd, to try to get people away 

from the doors. Sec. Ex. 152 at 264:4-17; Tr. at 241:24-242:2. Again, none of these 

employees received any crowd management or crowd control training from Wal-Mart. 

Several employees attempted to form the wedge, but they were not able to create any 

space between the crowd and the front doors. Sec. Ex. 152 at 268:8-20; Tr. at 242:6-21. 

Mr. D’Amico told Mr. Sooknanan that he thought it was unsafe for the associates outside 

because they were too close to the crowds, and as a result the employees were directed to 

come back into the building. Tr. at 242:20-9, 1088:11-23, 1089:11-15; Sec. Ex. 152 at 

261:22-25, 262:16-21, 263:22-24. 

¶36 At approximately 4:45 a.m., Mr. Sooknanan instructed Mr. D’Amico and 

Mr. Blair to contact the police to ask for help because “there were too many people 

outside for us to open the building.” Sec. Ex. 152 at 289:14-24. Indeed, Mr. Sooknanan 

himself described the crowd at the door of the Store prior to opening as a “melee.” Sec. 

Ex. 152 at 276:8-13. Minutes prior to the opening, Mr. D’Amico again expressed his 

concern to Mr. Sooknanan that the Store should not open its doors without a police 

24 
presence. Tr. at 246:2-15. Although Mr. D’Amico advised Mr. Sooknanan to delay 

opening the Store, Mr. Sooknanan nevertheless decided to open the doors at 5:00 a.m. 

and specifically instructed employees to “assist in keeping the doors open.” Sec. Ex. 152 

at 272:23-273:14. Mr. D’Amico had instructed employees stationed to work in the 

vestibule to “just stand to the side until the initial rush comes into the building.” Sec. Ex. 

145 at 249:25-250:17; see also Tr. at 246:20-247:10, 247:19-20 (D’Amico instructed 

them to step over to the sides because he “wasn’t sure what potentially could happen 

when the doors open.”). Mr. Blair understood that management gave this instruction so 

that employees would not be pushed over by customers entering the Store. Sec. Ex. 145 

at 250:18-251:12. Mr. Calhoun understood that this instruction was given because it was 

known that the crowd would rush and push the door. Tr. at 915:12-14. Mr. Sanders 

likewise understood that he was told to stay out of the way because it was known that 

people could “get hurt or injured” by the crowd. Sec. Ex. 150 at 42:13-18. 

ii. “Melee” Rush at 5 a.m. Opening 

¶37 After managers and employees inside the Store counted down from 10 to 

1, Assistant Manager Roydell Shaw unlocked the vestibule entrance doors at 5:00 a.m. 

and quickly ran into the Store. Sec. Ex. 142 at 12; see Sec. Ex. 35a (from 04:59 to 

05:00). This entrance was the only means of entry into the Store for the waiting 

customers. As the crowd of customers rushed into the Store upon opening, numerous 

employees were holding the front doors to attempt to open the doors and keep them from 

falling, and were pushing against the doors applying a counterforce to offset the pressure 

of the entering crowd. Tr. at 144:10-19; Sec. Ex. 25 (from 0:00 to 02:30 minutes). See

also Chart of Video Footage From Blitz Day 2008, attached hereto at Appendix C. This 

25 
dangerous attempt was completely ineffective, as the crowd knocked the doors off the 

door frame, the door frame broke, the doors were knocked down, and the glass in the 

door fell out and broke. Tr. at 153:10-25, 913:16-23, 916:20-22, 917:2-9; Sec. Ex. 145 at 

254:7-12; Sec. Ex. 151 (D. Smokes Dep. Tr.) at 86:22-87:8. When the Store doors were 

knocked down, they struck people, including Mr. Damour, as they fell. Tr. at 1102:16-

24; see also Sec. Ex. 152 at 284:14-23. As the crowd surged through, both employees 

and customers were knocked to the ground in the entranceway, the vestibule, and in the 

Store. Sec. Ex. 152 at 281:15-17, 282:4-10, 283:3-6. Employees attempted to pick 

people up who were knocked down. Tr. at 93:13-94:1. In particular, as seen in the video 

footage from Respondent’s Store surveillance cameras and employees’ mobile 

telephones, individuals were caught in multiple crowd surges and repeatedly crushed and 

trampled by the crowd, as customers rushed to enter the Store. Tr. at 326:23-327:25, 

328:3-329:6, 332:10-14, 20-22, 334:23-335:7. See also App. C. In the aftermath, articles 

of clothing, glass shards and door frame debris were strewn on the vestibule and Store 

floor. Sec. Ex. 142 at 17; see also App. C. 

iii. Hazardous Conditions in the Vestibule 

¶38 The numerous employees assigned to work in the vestibule and the 

entrance of the Store at the time of the Store’s opening were exposed to the hazards of, 

inter alia, being struck by the doors that fell off due to crowd pressure, being struck by 

the surge of customers entering the Store, being struck by broken glass, and being 

knocked to the ground and being subjected to crowd trampling and asphyxiation. In 

addition, employees assigned to work in close proximity to the entering crowds were 

26 
subjected to similar hazards. One employee – Mr. Damour – died during the 2008 Blitz 

Day Event. Sec. Ex. 152 at 285:9-286:9. 

¶39 Employee Dennis Fitch testified that he was exposed to struck by and 

asphyxiation hazards on Blitz Day 2008. Mr. Fitch was positioned just outside the 

Store’s vestibule when the doors were opened at 5:00 a.m. Tr. at 88:10-15, 91:22-23. 

When the doors opened, he felt pressure from the crowd and he was being pushed so hard 

that he could no longer hold himself up. Tr. at 89:4-13. He fell and was unable to get up 

for several minutes, with customers stepping and stomping on him all over his body. Tr. 

at 90:14-15, 90:19-91:2. Mr. Fitch was first knocked down outside the Store doors, and 

he was on the ground the entire time as he was pushed and dragged through the vestibule 

into the Store. Tr. at 91:22-92:7. Eventually, he was helped up by Mr. Shaw near the 

customer service desk inside the Store – a considerable distance from where he was 

initially knocked down by the crowd. Tr. at 91:13-19. Mr. Fitch was unable to breathe 

easily when he was knocked to the ground and trampled because there was too much 

pressure on him. Tr. at 91:5-12. Upon being helped up from the ground inside the Store, 

Mr. Fitch took off the outer layer of his clothes so that he could breathe. Tr. at 92:14-19. 

Mr. Fitch was concerned for his safety when people were pushing and trampling him. Tr. 

at 92:8-13. 

¶40 Mr. Fitch further observed fellow employees’ exposure to struck by and 

asphyxiation hazards on Blitz Day 2008. He saw at least four or five other employees in 

the vestibule prior to the doors opening. Tr. at 94:17-21. He also saw other employees 

and customers being knocked to the ground by the crowd, near the customer service area 

inside the Store. Tr. at 93:13-94:1. He tried to help approximately 10-20 people up from 

27 
the ground, including Store employees. Id. Mr. Fitch also observed employees being 

pushed out of the way by customers entering the Store. Tr. at 96:5-17. He described how 

employees were being pushed by the crowd: “These customers are trying to get in to get 

to whatever it is that’s for sale. They’re going to bust through. You’ve got to bust 

through everything to get to what you want. So they’re being pushed out of the way.” 

Tr. at 96:13-17. Mr. Fitch also saw the entrance door broken off the frame, and he took 

the broken door to the Receiving area in the back of the Store. Tr. at 92:20-93:7. 

¶41 Mr. Rice testified that he was also exposed to struck by and asphyxiation 

hazards on Blitz Day 2008. When Mr. Rice arrived for work that day, he was instructed 

by Manager Alton Calhoun to go to the vestibule and help to hold up the doors and 

“lean” against them so they would not break when the customers entered the Store (as 

they had in past years). Tr. at 141:21-142:7, 143:1-23. There were four or five other 

employees – including the decedent Mr. Damour – on each side of the doors with Mr. 

Rice at the time of the opening. Id. These employees were applying a counter force 

against the doors in an attempt to keep them from falling into the vestibule from the force 

of the crowd outside. Tr. at 144:10-19. When the Store doors opened, Mr. Rice heard 

the same creaking noise that he heard in 2007 when the doors came off, and he was again 

concerned that the doors might be knocked off. Tr. at 151:23-24; 163:16-18. Indeed, 

minutes after opening, both doors came off the hinges because of the force of the 

customers pushing in. Tr. at 153:10-25. The employees were then holding the doors in 

the middle of the vestibule. Id. The crowd pushed Mr. Rice in the vestibule. Tr. at 

156:6-8. He was pushed backward into the vending machines and was pinned by 

customers against the vending machines. Tr. at 156:11-20. Mr. Rice also observed the 

28 
door fall, striking Mr. Damour, and saw Mr. Damour being trampled by customers in the 

vestibule. Tr. at 159:10-14; Sec. Ex. 142 at 14. 

¶42 Mr. D’Amico also testified that he was exposed to struck by and 

asphyxiation hazards on Blitz Day 2008. Mr. D’Amico was located approximately one to 

two feet inside the Store, past the vestibule, when the doors opened. Tr. at 250:22-251:3. 

Within a few minutes of the opening, he managed to enter the vestibule. Tr. at 254:11-

20. Upon entering the vestibule, he was met by a surge of customers and the resulting 

crowd surge pushed Mr. D’Amico backwards up against the wall of vending machines. 

Tr. at 254:22-255:4. After pulling himself on top of a vending machine, Mr. D’Amico 

observed fellow employees’ exposure to struck by and asphyxiation hazards; he saw the 

vestibule filled with people, saw the front door metal frame coming off, heard noise from 

the door frame, and saw the door ultimately come down. Tr. at 255:5-20, 255:21-256:14. 

¶43 Mr. Calhoun also testified that he was exposed to struck by and 

asphyxiation hazards on Blitz Day 2008. When the doors opened, he was stationed on 

the right side of the door in the vestibule with fellow employees, including Mr. Rice, Mr. 

Fitch and Mr. Damour. Tr. at 913:16-23, 916:4-18. They were all attempting to open 

and hold the door up so that the crowd would not knock it to the ground as they entered. 

Tr. at 913:16-23, 916:20-22. The door was pushed off the hinges towards Mr. Calhoun 

and the other employees, before it entirely came off. Tr. at 917:2-9. In fact, he was 

standing right behind the door when the glass came out of it. Tr. at 919:14-19. Mr. 

Calhoun also observed customers rushing into the Store and falling, as they had in 

previous years. Tr. at 919:20-920:1. As the customers rushed in, he was trying to hold 

the door, and trying to slow people down to make sure no one fell. Tr. at 920:2-11. He 

29 
was pushed to the side as the crowd entered the vestibule. Sec. Ex. 142 at 13. Mr. 

Calhoun eventually got out of the vestibule by being lifted and helped over the vending 

machines. Tr. at 920:21-24. He went to the Store entrance and saw Mr. Damour lying on 

his stomach with the door and people on top of him. Tr. at 920:25-921:10; Sec. Ex. 142 

at 13. Mr. Calhoun was so affected by the events that he was forced to miss several days 

of work after 2008 Blitz Day. Tr. at 921:11-13. 

¶44 Employee Dennis Smokes also testified that he was exposed to struck by 

and asphyxiation hazards on Blitz Day 2008. He was stationed in the vestibule when the 

doors were opened, where he observed the crowd force its way into the Store and knock 

the doors off. Sec. Ex. 151 at 13:10-13, 85:3-86:6. Mr. Smokes observed that one of the 

front doors completely broke off upon customers entering, and the other door was broken 

but still hanging on the frame. Sec. Ex. 151 at 86:22-87:8. He heard the door cracking 

and coming off, just as it had in 2007. Sec. Ex. 151 at 111:2-21. After the doors broke 

off, Mr. Smokes observed the crowd run into the Store and the vestibule area fill with 

people. Sec. Ex. 151 at 87:13-24. He saw people pushing in the vestibule and he was 

trying to help people up from the floor. Sec. Ex. 151 at 90:16-18, 90:24-91:19. He also 

observed Mr. Damour lying on the floor of the vestibule. Sec. Ex. 151 at 97:11-13. Mr. 

Smokes felt the crowd pushing up against him and he was concerned that he would be 

knocked to the ground and no one would be able to help him. Sec. Ex. 151 at 90:24-

91:19, 108:7-109:2. 

¶45 Mr. Blair also testified that he was exposed to struck by and asphyxiation 

hazards on Blitz Day 2008. Mr. Blair was located in the vestibule during the opening, 

and he observed customers pushed up against the glass doors prior to the doors opening. 

30 
Sec. Ex. 145 at 252:17-21, 267:25-268:7. As the associates were trying to open the Store 

doors, the glass was cracking and one of glass panes popped out of the door because of 

the force of the crowd pushing against it to get into the Store. Sec. Ex. 145 at 25:8-11, 

253:14-24, 254:4-6. He observed that the door itself fell off, the glass pane popped out, 

the bottom glass broke, and the left door was knocked completely off the hinges. Sec. 

Ex. 145 at 254:7-12. Mr. Blair also observed people pushing in the vestibule as they 

entered the Store. Sec. Ex. 145 at 258:12-14. 

¶46 Employee Antoine Lewis was also exposed to struck by and asphyxiation 

hazards on Blitz Day 2008. In particular, he was on the left-side door next to Mr. 

Damour in the vestibule. Sec. Ex. 142 at 13. While he was so positioned, one of the 

doors pinned him against the wall and he fell to the floor. Id. 

¶47 Employee Santiago Corporan was exposed to struck by and asphyxiation 

hazards on Blitz Day 2008. He was positioned on the right-side door in the vestibule, and 

the crowd pushed him against the wall and into the Store. Sec. Ex. 142 at 13. Similarly, 

the crowd pinned employee Jeff McWilliams against the wall. Id. at 14. He also saw Mr. 

Damour fall to the floor along with the door. Id.

¶48 Support Manager Richard Mason was also exposed to struck by and 

asphyxiation hazards on Blitz Day 2008. He was positioned in the vestibule during the 

opening and saw the front doors hanging by cords. Sec. Ex. 142 at 14. He cut down the 

doors with a knife, but then he fell to the floor. Id. There was a pregnant woman on the 

floor between his legs as he held the door above his head until the glass came out of the 

frame. Id. 

31 
¶49 Employee Jaime Thompson testified that he observed fellow employees’ 

exposure to struck by and asphyxiation hazards on Blitz Day 2008. When Mr. Thompson 

arrived at the Store before opening, he observed a crowd of customers outside. Tr. at 

869:2-9, 874:23-875:1. Before the doors opened, he saw customers outside pushing on 

the entrance doors. Tr. at 890:13-17. He was stationed in the vestibule on top of a 

vending machine when the doors opened; he was holding the inner vestibule door 

(between the vestibule and the interior of the store) because the door had no locking 

mechanism. Tr. at 888:20-24, 889:1-4, 889:8, 889:13-22. After the doors opened, he 

observed customers pushing on the outer doors and one door broke and fell down. Tr. at 

891:8-16. Employees were in the vestibule when the door was knocked down. Id. Mr. 

Thompson saw Mr. Damour in the vestibule, trying to turn around and run back inside 

before the door hit Mr. Damour in the head and he was knocked to the ground. Tr. at 

891:20-24, 893:4-11. Mr. Thompson, along with other employees, tried to pick up the 

door off Mr. Damour, but with the number of people coming in, the door fell back down 

on Mr. Damour. Tr. 893:15-18. Even after the door was finally removed, Mr. Thompson 

observed people continue to walk on Mr. Damour. Tr. at 893:19-25. Mr. Thompson also 

observed several other people on the ground, including employees. Tr. at 894:1-8. 

¶50 Employee Bibi Azeem also testified that she observed fellow employees’ 

exposure to struck by and asphyxiation hazards on Blitz Day 2008. During the 

countdown prior to the opening, Ms. Azeem went into the Store because she was 

concerned that she would get hit by the crowd or fall because of too many people 

entering the Store at once. Sec. Ex. 144 (B. Azeem Dep. Tr.) at 81:6-21. As the crowd 

entered, she observed that they were running, pushing, falling, and a number of people 

32 
were out of breath. Sec. Ex. 144 at 88:22-89:20. Ms. Azeem stated that she made sure to 

get out of the way of the crowd to avoid getting stamped on herself. Sec. Ex. 144 at 

165:5-17. She also saw people stepping over Mr. Damour on the ground. Sec. Ex. 144 at 

96:7-10. After the 2008 Blitz Day Event, the entire vestibule door needed to be repaired 

based on the damage sustained and Ms. Azeem arranged for the damaged door to be 

fixed. Sec. Ex. 144 at 109:19-110:11. See also Sec. Exs. 17 (invoices regarding repairs 

of Store doors after Blitz Day 2008) and 18 (invoices from Solar Glass regarding repair 

and replacement of Store doors after 2008 Blitz Day). 

¶51 Employee Earl Sanders likewise testified that he observed fellow 

employees’ exposure to struck by and asphyxiation hazards on Blitz Day 2008. Mr. 

Sanders was positioned on top of one of the vending machines in the vestibule when the 

Store opened. Sec. Ex. 150 at 10:14-11:5. He observed Mr. Damour, one of the assistant 

managers, and several other associates in the vestibule by the front door at the opening. 

Sec. Ex. 150 at 12:15-13:7. He saw the crowd pushing as the doors opened, the doors 

come off the tracks and the glass fall onto the floor. Sec. Ex. 150 at 11:18-12:4, 57:8-10, 

57:14-22. As the crowd rushed the door, Mr. Sanders saw one of the doors fall on top of 

Mr. Damour. Sec. Ex. 150 at 13:20-24, 57:14-22. Mr. Sanders also saw Mr. Damour 

knocked to the floor and the crowd trample over him; the crowd was running on top of 

both Mr. Damour and the door on top of him. Sec. Ex. 150 at 14:10-13, 15:20-22. Mr. 

Sanders observed that the glass from the door was broken. Sec. Ex. 150 at 15:18-19, 

57:15-16. As the crowd continued to enter the Store, they pushed the vending machine 

that Mr. Sanders was on; he became concerned that the crowd might push it over and as a 

33 
result he got off the vending machine and went into the Store near the vestibule. Sec. Ex. 

150 at 57:22-58:6. 

E. 2009 Day-After-Thanksgiving Day Sales Event

¶52 Following the death of Mr. Damour at the 2008 Blitz Day Event and a 

criminal investigation by the Nassau County District Attorney, Wal-Mart agreed to 

implement several changes to its Blitz Day Event (at the Valley Stream Store and 

extended to all its stores nationwide), beginning with renaming it simply: “the Annual 

Event” or the “Event.” Sec. Ex. 148 at 224:21-24, 226:7-17. For the 2009 Event, WalMart engaged professional crowd management experts at Populous and Landmark 

Consulting, and with their advice Wal-Mart developed and implemented a 

comprehensive crowd management plan for future Blitz Day Events (the “Plan”). See

Sec. Ex. 48 at 22; Sec. Ex. 74 (2009 Event Management Plan); Sec. Ex. 75 (2009 Crowd 

Management Plan implementation power point); Sec. Ex. 76 (2009 Event Management 

Plan National Tier Breakdown); Sec. Ex. 77 (Landmark Event Staffing Services 

Proposal, for Yearly Event 2009); and Sec. Ex. 148 at 239:9-12. In particular, the Plan 

“is intended to provide crowd management strategies and tactics to store management 

and associates to assist them in planning and maintaining a safe store environment . . . .” 

Sec. Ex. 74 at 3. 

¶53 As part of the Plan, Wal-Mart stores were classified into tiers based upon 

certain criteria including crowd density and history of accidents on Blitz Days, and the 

specific measures of the crowd management plan were mandated according to the risk 

classification of each tier. Sec. Ex. 148 at 252:10-25; see also Sec. Ex. 74. The Valley 

Stream Store was classified as “Tier 1” – the category requiring the most comprehensive 

34 
crowd management and preparation for the Blitz Day event. Sec. Ex. 148 at 252:12-16, 

265:16-18. 

¶54 The Plan is consistent with the substance of the recommendations made by 

the Secretary’s crowd management expert, Paul Wertheimer. Compare Sec. Ex. 74 with

Sec. Ex. 92 at 10-11 (Expert report of P. Wertheimer). Mr. Wertheimer’s 

recommendations included: the creation of a written crowd management plan, proper 

crowd management training of employees, a proper barrier system, queuing, signage, 

effective communication by employees with customers, the use of walkie-talkies by all 

employees interacting with the crowd, and a proactive communication plan with local 

law enforcement – all of which are reflected in Respondent’s Plan. Id. 

¶55 Pursuant to Respondent’s Plan, for the first time employees at the Store 

received crowd management training weeks prior to the 2009 Event, both in person and 

computer-based. Tr. at 97:11-15, 160:23-161:3; see also Sec. Ex. 73; Sec. Ex. 148 at 

225:9-12, 20-22; Sec. Ex. 145 at 280:24-281:6. 

¶56 Further, the Plan set forth different crowd management techniques that 

had not been used at the Store in prior years, including: 

(1) The development of an “Operations Plan” for each store, which is to be 

designed “through the identification of key factors for each store . . . .” Sec. Ex. 74 at 5. 

Such “Operations Plan” was presumably in writing, as a “Market Management Team” 

reviews all store plans. Id. at 7. 

(2) Training for management and other employees “to prepare for plan 

creation and implementation.” Id. at 5, 8. 

35 
(3) Preparations for Blitz Day that include “securing necessary equipment 

(barricades, two-way communication devices, and emergency equipment),” a plan for 

placement of “hot item” merchandise, specific signage and maps, and coordination with 

local law enforcement officials and other security. Id. at 9. 

(4) For “Tier One” stores – those with the need for the highest level of crowd 

management, such as the Valley Stream Store – “a queue line system protected by hard 

barricades” is required “to prevent customer surge.” Id. at 11. The queue line features “a 

serpentine line.” Id. The hard barricade is used “to help protect the queue from 

customers crowding in front of the line and rushing the entry doors at store opening.” Id.

(5) Employees trained in crowd management should be “posted along the hard 

barrier” to talk to customers, provide maps indicating the location of “hot items,” and 

direct customers to the entrance of the line. Id. 

(6) A “command podium,” which would have “an overview of the store entry, 

queue lines, and parking areas to coordinate communications and responses to exterior 

crowd actions.” Id. 

A summary of these requirements appears in the appendices to the Plan. See id. at C-1 – 

D-2. 

¶57 For the first time ever, the Store’s specific plan was reviewed, vetted and 

approved by numerous managers at the store, market, regional and divisional levels, as 

well as in the Home Office by the Senior Vice President and by outside joint safety 

experts. Sec. Ex. 148 at 247:9-248:5, 249:15-17, 251:7-9. 

¶58 The Store followed these new requirements by implementing various 

crowd management measures for the 2009 Event. For example, the Store remained open 

36 
to customers for 24 hours prior to the sales time, although sale items went on sale at 5:00 

a.m. Tr. at 162:2-23; Sec. Ex. 48 at 22; Sec. Ex. 145 at 284:4-12. The Store also rented 

steel security barricades that were placed in front and along the outer wall of the Store 

and formed a serpentine queuing line to the entrance of the Store. Tr. at 98:9-20; Sec. 

Ex. 48 at 22; Sec. Ex. 151 at 119:5-14, 120:13-121:7; Sec. Ex. 145 at 287:4-9, 20-22. 

See also Sec. Exs. 95d (P1030002 photograph from 2009 Event) and 95f (P1020897 

photograph from 2009 Event) (showing queuing lines and comprehensive barricade 

system outside the Store). 

¶59 The Store also hired third-party crowd management personnel to interact 

with customers outside the store. Tr. at 405:16-406:5; Sec. Ex. 48 at 22; Sec. Ex. 49 at 4; 

Sec. Ex. 95L (P1030112 video by P. Wertheimer from 2009 Event). Store associates also 

communicated with customers outside the Store. See Sec. Ex. 95n (P1030018 video by 

P. Wertheimer from 2009 Event) from 0:43 to 1:05. The employees outside were 

wearing yellow vests such that the crowd could easily identify them as Wal-Mart 

personnel. Sec. Exs. 95L & 95n; Sec. Ex. 145 at 288:21-289:3; Sec. Ex. 151 at 125:9-21. 

¶60 Additionally, the Store provided bullhorns to several associates to make 

announcements, such as informing customers waiting in line when all of the popular sales 

items had been accounted for by customers inside. Sec. Exs. 48 at 22; 95L & 95n. Other 

associates and security personnel were positioned upon elevated viewing stands outside 

the Store so that they could maintain an unobstructed view of the crowd to quickly 

identify any issues that may have arisen. Sec. Ex. 48 at 22; Sec. Ex. 95L; Sec. Ex. 145 at 

288:4-15; Sec. Ex. 151 at 120:13-121:7; Tr. at 99:7-14, 21-25. Further, based on a visual 

observation of the customers in the Store, the Market Manager Dave Hogan utilized a 

37 
metering technique such that an equal number of customers were permitted to enter the 

Store as the number of customers who left the Store. Sec. Ex. 48 at 23; Sec. Ex. 95m 

(P1030108 video by P. Wertheimer from 2009 Event) from 0:45 to 1:45. 

¶61 Additionally, customers were permitted to wait in queuing lines located 

throughout different areas inside the Store. Tr. at 162:2-23; Sec. Ex. 145 at 284:19-

285:4; Sec. Ex. 151 at 125:4-8. Customers waiting in queuing areas received tickets 

indicating whether they would receive the desired sale item. Tr. at 162:2-23; Sec. Ex. 

145 at 285:7-18; Sec. Ex. 151 at 123:17-17, 124:12-14. When all tickets for an item were 

handed out, this was indicated to customers. Sec. Ex. 145 at 285:7-18 (there was a 

balloon for each sale item and once balloon came down, item was sold out). 

¶62 Notably, in 2009, Wal-Mart employees at the Store were not exposed to 

crowd-related hazards. In particular, customers were not pushing, people did not fall, and 

the doors did not break or come off the hinges, as had occurred in prior years. Tr. at 

162:24-163:15; see also Sec. Ex. 95L. 

ARGUMENT 

The Secretary has presented a multitude of evidence that demonstrates WalMart’s failure to abide by Section 5(a)(1) of the Act, which provides that an employer 

“shall furnish to each of his employees employment and a place of employment which 

are free from recognized hazards that are causing or are likely to cause death or serious 

physical harm to his employees.”6

 To prove a serious violation under section 5(a)(1) of 

the OSH Act, the Secretary must establish that: (1) there was an activity or condition in 

 

6

 29 U.S.C. § 654(a)(1). 

38 
the employer’s workplace that constituted a hazard to employees; (2) either the cited 

employer or its industry recognized that the condition or activity was hazardous; (3) the 

hazard was causing or likely to cause death or serious physical harm; and (4) there were 

feasible means to eliminate the hazard or materially reduce it.7

 

Numerous Wal-Mart employees testified that they had been subject to struck by 

and asphyxiation hazards at Blitz Day Events at the Valley Stream Store, in 2008 and in 

prior years. Wal-Mart’s own documents demonstrate the corporation’s recognition of 

these serious hazards, based on events that had taken place at the Store and throughout 

the country before 2008. Although no employee had died prior to 2008, Wal-Mart was 

well aware that employees faced the threat of death or serious physical harm. WalMart’s minimal steps to address the hazards – such as setting up ineffective and 

inappropriate barricades and simply telling employees stationed in the vestibule to step 

aside in the face of surging crowds – were woefully inadequate in protecting its 

employees from the known hazards. Only after one of its employees was killed, and 

others injured in 2008, did Wal-Mart act to remedy the crowd-related hazards. At that 

point, with the assistance of retained crowd safety experts, it implemented a crowd 

management plan for its stores nationwide, thus demonstrating the feasibility of 

abatement of the hazards. In light of the clear evidence on each of the required elements, 

the amended citation must be affirmed. 

 

7

 U.S. Postal Service, 21 BNA OSHC 1767, 1770, 2005 WL 6407173 (Rev. Comm. 

2005); Arcadian Corp., 20 BNA OSHC 2001, 2007, 2004 WL 2218388 (Rev. Comm. 

2004); Waldon Health Care Center, 16 BNA OSHC 1052, 1058, 1993 WL 119662 (Rev. 

Comm. 1993). 

39 
I. EMPLOYEES WERE EXPOSED TO STRUCK BY AND ASPHYXIATION 

HAZARDS AT THE VALLEY STREAM WAL-MART STORE ON BLITZ 

DAY, NOVEMBER 28, 2008. 

The Secretary has presented compelling evidence illustrating the existence of 

struck by and asphyxiation hazards at the Store on Blitz Day 2008, including video 

footage captured on employees’ mobile telephones and the Store’s own video 

surveillance, and the trial and deposition testimony of ten employees. As the evidence 

demonstrates, employees were exposed to numerous crowd-related hazards, including: 

(1) being struck by glass; (2) being struck by falling doors; (3) being struck by customers; 

(4) being asphyxiated by an oncoming crowd; and (5) being asphyxiated by falling doors. 

Despite these evident and recurring hazards, Wal-Mart failed to implement 

comprehensive measures to protect its employees until one employee died and it faced 

prosecution by the Nassau County District Attorney’s office. 

As a preliminary matter, the Secretary must show only that it was “reasonably 

certain that some employee was or would be exposed to that danger,”8

 not that an 

employee actually was injured or died on November 28, 2008.9 “[I]t is the hazard, not 

 

8

 Mineral Indus. & Heavy Constr. Group, 639 F.2d 1289, 1294 (5th Cir. 1981). 

 

9 See Arcadian Corp., 20 BNA OSHC at 2009; Marquette Cement Mfg. Co., 568 F.2d 

902, 910 (2d Cir. 1977) (“The Secretary need not show any actual injury to prove a § 

5(a)(1) violation.”). A lack of prior accidents does not establish that no hazard exists for 

purposes of the general duty clause. Kansas City Power & Light Co., 10 BNA OSHC 

1417, 1982 WL 22592, *6 (Rev. Comm. 1982); REA Exp., Inc., 495 F.2d 822, 825 (2d 

Cir. 1974) (“[Section 5(a)(1)] may well be violated even though no accident or injury 

occurs”); Brennan, 494 F.2d 460, 463 (8th Cir. 1974) (“[n]either the general duty clause 

nor section 17(k) requires any actual death or physical injury for a violation to occur”); 

Nat’l Realty & Constr. Co., Inc., 489 F.2d 1257, 1267 (D.C. Cir. 1973). 

40 
the specific incidence that resulted in injury or might have resulted in injury, that is the 

relevant consideration in determining the existence of a recognized hazard.”10

As customers were entering the Store during the 2008 Blitz Day, Respondent’s 

“employees were exposed to the hazards of asphyxiation or being struck due to crowd 

crush, crowd surge or crowd trampling.” Compl. ¶ V. Therefore, although one of WalMart’s employees died on November 28, 2008, and others were injured, the relevant 

inquiry is the potential for employees to be injured – which has been demonstrated by an 

abundance of documentary and testimonial evidence. 

A. Employees Testified That They Were Exposed to Serious CrowdRelated Hazards. 

 At the hearing, employees who worked in the Store’s vestibule on Blitz Day 2008 

testified that they, and other employees assigned to work in close proximity to the 

incoming crowd both inside and outside the Store, were in direct threat of, inter alia, 

being struck by the front doors that came off and by broken glass because of the crowd 

pressure, and being struck by the customers entering the Store creating crowd surges and 

crowd crushes. These employees also testified regarding the threat of asphyxiation from 

crowd pressures and being knocked to the ground and subjected to crowd trampling. 

Such testimony was consistent with and confirmed additional record testimony from 

employees at depositions. 

Numerous employees, including Dennis Fitch, Justin Rice, Salvatore D’Amico, 

Alton Calhoun, Dennis Smokes, Julius Blair, Antoine Lewis, Santiago Corporan, Jeff 

 

10 Arcadian Corp., 20 BNA OSHC at 2009. See also Bethlehem Steel Corp., 607 F.2d 

871, 874 (3d Cir. 1979) (issue for the court was not proximate cause of incident 

preceding the inspection, but whether employer maintained a recognized hazard); 

Brennan, 494 F.2d 460, 463 (8th Cir. 1974). 

41 
McWilliams, and Richard Mason were assigned to work in the vestibule and the front of 

the Store – directly facing the oncoming crowd of customers – just as the front doors 

were opened at 5:00 a.m. As they testified, these employees personally were subjected to 

hazards presented by the doors, broken glass and the crowd. Other employees, such as 

Jaime Thompson, Steve Sooknanan, Bibi Azeem and Earl Sanders, observed fellow 

employees’ exposure to the cited hazards from nearby locations in the Store. 

 The Store employees testified that they were pushed by the crowd and/or pinned 

by the crowd against the vending machines and the Store wall. Mr. Rice and Mr. 

D’Amico were pushed backward by the surge of customers entering the store and were 

pinned against the vending machines. Facts ¶¶ 41 & 42. Mr. Corporan and Mr. 

McWilliams were pushed by the crowd and pinned against the wall. Facts ¶ 47. Mr. 

Smokes and numerous other employees in the vestibule area were also pushed by the 

entering crowd. Facts ¶¶ 44, 45 & 50. 

 Additional Store employees were knocked down and trampled by the crowd. Mr. 

Fitch was pushed, knocked down and trampled by the crowd; he spent several minutes on 

the ground and reported difficulty breathing. Facts ¶ 39. He also saw other employees 

pushed and knocked to the ground as the crowd “bust[ed] through.” Facts ¶ 40. Mr. 

Lewis was pinned against the wall by the door and he fell to the floor. Facts ¶ 46. Mr. 

Thompson saw other employees on the ground being trampled by the crowd. Facts ¶ 49. 

As witnessed by numerous employees, Mr. Damour was struck in the head by the falling 

door, knocked to the floor and trampled by the crowd. Facts ¶¶ 41, 47, 49 & 51. 

Additional employees saw Mr. Damour lying on the ground, with the door and people on 

top of him. Facts ¶¶ 43, 44 & 50. Mr. Damour subsequently died. Facts ¶ 38. 

42 
At least eight employees also testified about the hazardous conditions employees 

working by the doors to the Store were exposed to: doors shaking and making noises, 

employees struggling to apply a counter force to the doors being pushed inward by the 

crowd, doors coming off the hinges, the glass being knocked out of doors, doors being 

knocked down and striking employees. For example, Mr. Calhoun and Mr. Rice were 

both assigned to hold the doors and apply counter pressure in an attempt to prevent the 

crowd from pushing them off. Facts ¶¶ 39-41 & 43. However the doors pushed inward 

towards them (and other employees) and the doors came off due to the crowd pressure. 

Facts ¶¶ 39-41 & 43. Many other employees, including Mr. Smokes, Mr. Blair, Mr. 

Thompson and Mr. Sanders, saw the doors come off due to the crowd pressure. Facts ¶¶ 

44, 45, 49 & 51. Additionally, the glass fell out of the door frame. Facts ¶¶ 43, 45, 48 & 

51. After cutting down a dangling door from its frame, Mr. Mason fell to the floor with 

the door overhead and the glass fell out of the door as he was on the floor. Facts ¶ 48. 

Mr. Sooknanan himself admitted that the Store doors had, indeed, fallen off and struck 

people on Blitz Day 2008. Tr. at 1102:16-24. 

As discussed in more detail infra, Section II.A.1.iv, Wal-Mart managers, 

including Mr. Sooknanan, Mr. D’Amico and Mr. Blair, were aware of each of these 

crowd-related hazards on Blitz Day 2008 prior to the opening of the Store. In fact, Mr. 

Blair stood in the buffer zone between the Store and the barricades outside (with Mr. 

Gilroy and six or seven other employees) when many customers crossed the barricades 

into the buffer zone in front of the Store doors, approximately thirty minutes prior to 

opening. Sec. Ex. 145 at 224:8-15, 224:16-25. Mr. Blair told the associates to go back 

inside the Store when this happened because it was not safe for them to be so close to the 

43 
crowd as the customers were pushing and trying to get closer to the Store doors. Sec. Ex. 

145 at 225:2-16. Similarly, Mr. D’Amico told Mr. Sooknanan that he felt it was unsafe 

for the employees outside because they were too close to the crowd that had jumped the 

barricades. Facts ¶¶ 34-35. 

Store Manager Sooknanan himself observed the entire glass facade of the 

vestibule and the glass doors shaking due to the pressure being applied by the crowd prior 

to the Store opening. Facts ¶ 34. He was concerned that the glass would shatter due to 

people pushing up against it. Facts ¶ 34. Employees were stationed in the vestibule at 

this point. Tr. at 1099:11-22. Mr. Sooknanan testified that he was concerned that the 

glass might break if the doors stayed closed and that might cause serious injury to people. 

Tr. at 1101:5-11. Mr. Blair and the other employees in the vestibule had been instructed 

by Mr. D’Amico minutes prior to the opening that when the doors open, they should “just 

stand to the side until the initial rush comes into the building.” Facts ¶ 36. Mr. Blair 

understood that management gave this instruction so that employees would not be pushed 

over by customers entering the Store. Facts ¶ 36. 

B. Graphic Video Footage From Blitz Day 2008 Confirms Wal-Mart’s 

Employees’ Exposure to Serious Crowd-Related Hazards. 

 Wal-Mart’s employees’ testimony was amplified by graphic video footage of the 

events of Blitz Day 2008 at the Store. While a selection of these videos was highlighted 

at the hearing, all show the same employee exposure to serious crowd-related hazards.11 

Exhibit 25 (from 0:00 to 4:00 minutes), a video of the Store on Blitz Day 2008 from 

 

11 Each of the video clips referenced below was shown, at least in part, during the hearing 

in this case. For longer videos, the Secretary has included specific counter designations 

to direct Your Honor’s attention to the relevant portions. See also Appendix C (chart 

summarizing video footage of Blitz Day 2008 Store opening). 

44 
employee Aubrey Dancey’s mobile device, shows the crowd entering the Store at the 

time of the opening. See Sec. Ex. 25 (from 0:00 to 4:00 minutes). The video begins 

inside the vestibule, facing the front doors as they are first opened, and then changes 

position to show the vestibule from just inside the Store. Id. This video clearly shows 

employees struggling to hold the doors open and apply a counter force, only to be 

exposed to struck by and asphyxiation hazards as a large crowd rushes into the Store. Id. 

Six additional videos from employees’ mobile devices illustrate the same 

employee exposure to crowd-related hazards on Blitz Day 2008. Exhibit 28c, a video of 

the Store on Blitz Day 2008 from employee Keesha Boyce’s mobile device, shows the 

crowd entering the Store, from inside the store near the vestibule. See Sec. Ex. 28c, 

video 146 (1:46 minutes total). Exhibit 143a, a video of the Store on Blitz Day 2008 

from employee Marvin Griffith’s mobile device, shows the crowd entering the Store, 

from inside the vestibule from an elevated viewpoint. See Sec. Ex. 143a, video 1 (0:20 

seconds total). In this clip, one of the vestibule front doors is visible in the air, off its 

hinges and posing a struck by hazard to employees. Id. Exhibit 143b, another video of 

the Store on Blitz Day 2008 from employee Marvin Griffith’s mobile device, shows the 

crowd entering the Store, from inside the vestibule from an elevated viewpoint. See Sec. 

Ex. 143b, video 2 (0:20 seconds total). Exhibit 31b, a video of the Store on Blitz Day 

2008 from employee Earl Sanders’ mobile device, shows the initial crowd entry when the 

doors opened, from inside the vestibule. See Sec. Ex. 31b, video 45927 (0:10 seconds 

total). This clip shows employees positioned to hold the vestibule doors as customers 

rush into the vestibule. Id. Exhibit 31c, another video of the Store on Blitz Day 2008 

from employee Earl Sanders’ mobile device, shows the crowd entering, from inside the 

45 
vestibule. See Sec. Ex. 31c, video 45957 (0:10 seconds total). This clip also shows the 

Store doors off the hinges, posing a struck by hazard to employees. Id. Exhibit 31g, a 

third video of the Store on Blitz Day 2008 from employee Earl Sanders’ mobile device, 

shows the crowd pushing in the vestibule as they enter, from inside the vestibule. See

Sec. Ex. 31g, video 50552 (0:10 seconds total). 

Three additional video clips obtained from Respondent’s own security camera 

surveillance footage further illustrate the crowd-related hazards present at the Store on 

Blitz Day 2008. The clips show similar time periods of initial crowd entry from three 

different viewpoints: (1) Exhibit 35a (from 04:59 to 05:09) shows the vestibule from an 

elevated camera inside the store; (2) Exhibit 35b (from 05:01 to 05:05) shows the 

vestibule from a camera inside the vestibule; and (3) Exhibit 34a (from 04:59 to 05:01) 

shows the outside of the store along the northeast side of the store, facing the main 

entrance doors into the vestibule. See Sec. Ex. 35a, 04[1].44.56_06.44.59 video (from 

04:59 to 05:09); Sec. Ex. 35b, 04.54.51_05.54.59 video (from 05:01 to 05:05); Sec. Ex. 

34a, ES301/Group 1 Camera 1 video (from 04:59 to 05:01). Similar to the employees’ 

videos, these videos vividly depict how Wal-Mart’s employees faced serious physical 

injury as the oncoming crowd entered the Store, creating crowd crush, crowd surge and 

crowd trampling. Indeed, as Exhibit 35a (from 04:59 to 05:09) illustrates, Wal-Mart’s 

employees were not exposed only to isolated or brief hazards; rather, the serious danger 

continued for a significant length of time as the large crowd continued to enter the Store. 

46 
II. WAL-MART RECOGNIZED THAT ITS EMPLOYEES FACED SERIOUS 

STRUCK BY AND ASPHYXIATION HAZARDS FROM THE CROWDS 

OF CUSTOMERS AT ITS STORES ON BLITZ DAY. 

Wal-Mart had actual knowledge that its employees at the Valley Stream Store 

were subject to struck by and asphyxiation hazards due to crowd crush, crowd surge, or 

crowd trampling during Blitz Day. The Secretary presented evidence establishing WalMart’s recognition of the hazards, including: prior crowd-related incidents and issues at 

the Valley Stream Store on Blitz Days in 2005-2007, prior crowd-related incidents and 

injuries to customers and employees during Blitz Day events at Wal-Mart stores 

nationwide, various internal Wal-Mart Blitz Day planning documents, and the Store’s 

inadequate safety precautions for Blitz Day 2008. 

A hazard is deemed “recognized” when the potential danger of a condition or 

activity is either actually known to the particular employer12 or recognized by safety 

experts familiar with the industry or activity in question.13 Because the Secretary has 

 

12 See McKie Ford, Inc., 191 F.3d 853, 856 (8th Cir. 1999); Nelson Tree Services, Inc., 

60 F.3d 1207, 1209-10 (6th Cir. 1995); Georgia Elec. Co., 595 F.2d 309, 321 (5th Cir. 

1979) (“recognized hazard” can be established by proving that the employer had actual 

knowledge that a condition is hazardous); Marquette Cement Mfg. Co., 568 F.2d at 910; 

Pepperidge Farm, Inc., 17 BNA OSHC 1993, 1997 WL 212599, *12 (Rev. Comm. 1997). 

13 Nat’l Realty & Constr. Co., Inc., 489 F.2d at 1265 n32; R.L. Sanders Roofing Co., 620 

F.2d 97, 99 (5th Cir. 1980). See also Kelly Springfield Tire Co., Inc., 729 F.2d 317, 321-

22 (5th Cir. 1984) (“where a practice is plainly recognized as hazardous in one industry, 

the Commission may infer recognition in the industry in question”); McKie Ford, 18 

BNA OSHC 1393, 1998 WL 175008, *5 (ALJ 1998), aff’d 191 F.3d 853 (8th Cir. 1999) 

(“finding of industry recognition does not require a specific showing as to the safety 

practices in a narrowly defined industry”). 

47 
established that Wal-Mart actually recognized the hazards to its employees,14 she need 

not prove a violation of any industry standard.15

 The Secretary may demonstrate an employer’s actual knowledge of the hazard in 

numerous ways, including knowledge of the employer’s supervisors16 or knowledge 

reflected in corporate documents.17 Knowledge may also be shown through a company’s 

lower level employees when the employee has a duty to report safety concerns.18 

Employer recognition, through manager and employee knowledge or corporate 

 

14 See McKie Ford, Inc., 191 F.3d at 856; Nelson Tree Services, Inc., 60 F.3d at 1210; 

Brennan, 494 F.2d at 463-64 (8th Cir. 1974). 

15 W.G. Fairfield Co., 285 F.3d 499, 505 (6th Cir. 2002) (citing Nelson Tree Services, 

Inc., 60 F.3d at 1210). See also Safeway, Inc., 382 F.3d 1189, 1195 n4 (10th Cir. 2004) 

(An employer “cannot ignore the presence of an obviously dangerous condition by 

asserting that its industry is ignorant of such hazards.”). 

16 See, e.g., W.G. Fairfield Co., 285 F.3d at 505-506 (former supervisors’ knowledge of 

the hazard was sufficient to charge knowledge of the hazard to the corporation); Georgia 

Elec. Co., 595 F.2d at 321 (a boom operator’s actual knowledge that the lever was 

reversed could be imputed to the employer, as the boom operator, although not a 

superintendent or foreman, exercised supervisory authority); The News Press, 21 BNA 

OSHC 2211, 2007 WL 1934885, *8 (Rev. Comm. 2007) (“News Press, through its 

supervisors, knew the catcher employees stood in front of the paper roll during its trolley 

loading procedure without any protective devices.”); Dover Elevator Co., 16 BNA OSHC 

1281, 1286, 1993 WL 275823 (Rev. Comm. 1993); Dun-Par Engineered Form Co., 12 

BNA OSHC 1962, 1986 WL 53522, *3 (Rev. Comm. 1986) (actual or constructive 

knowledge of a supervisory employee is imputed to the employer). 

17 See U.S. v. Ladish Malting Co., 135 F.3d 484, 492-93 (7th Cir. 1998) (corporate 

knowledge remains as long as information is reflected in corporate documents and even 

after its destruction, as long as a responsible employee remembers it). 

18 Ladish Malting Co., 135 F.3d at 493 (employees with duties to report safety concerns 

to the company can impute knowledge to the company even if they do not have general 

supervising responsibilities such as hiring and firing). 

48 
documents, may be based on prior instances where the hazardous condition occurred,19 or 

prior complaints about the hazardous condition.20 Recognition may also be evidenced by 

a company’s own safety documents.21 In addition, precautions taken by an employer can 

be used to establish recognition of a hazard, if used in conjunction with other evidence.22 

 

19 See, e.g., Carlyle Compressor Co., Div. of Carrier Corp., 683 F.2d 673, 677 (2d Cir. 

1982) (The danger of flying metal shafts from a grinding machine was a recognized 

hazard because the company knew of previous cases where the shafts were expelled); 

Praxair Distrib., Inc., 22 BNA OSHC 1075, 2007 WL 2511145, *3 (Rev. Comm. 2007) 

(Respondent recognized the hazard based on a nonfatal incident in 2004, when another 

employee was struck by a falling lift gate, and on a 2004 toolbox meeting document that 

warns employees about the dangers of falling lift gates). 

20 Kus-Tum Builders, Inc., 10 BNA OSHC 1128, 1981 WL 18941, *4-*5 (Rev. Comm. 

1981) (Improperly bracing large wooden roof trusses was recognized because the 

employer had been warned of the dangers by its own employees and by another 

contractor at the worksite). 

21 See Puffer’s Hardware, Inc., 742 F.2d 12, 18 (1st Cir. 1984) (employer’s safety 

program may constitute evidence that employer recognized hazard at issue); General 

Dynamics Land Sys., Inc., 985 F.2d 560, 1993 WL 15067, *3 (6th Cir. 1993) 

(unpublished) (several company safety bulletins go toward showing recognition); Ted 

Wilkerson Inc., 9 BNA OSHC 2012, 2016, 1981 WL 18797 (Rev. Comm. 1981) 

(employer’s work rule evidences recognition of hazard under general duty clause). See

also The Timken Co., 20 BNA OSHC 1070, 2003 WL 1889150, *6-*8 (Rev. Comm. 

2003). 

22 Beverly Enterprises, Inc., 19 BNA OSHC 1161, 1190, 2000 WL 34012177 (Rev. 

Comm. 2000) (safety precautions taken by an employer can be used to establish hazard 

recognition in conjunction with other evidence); Pepperidge Farm, Inc., 1997 WL 

212599, at *41; Waldon Health Care Center, 16 BNA OSHC 1052; Ulysses Irrigation 

Pipe Co., 11 BNA OSHC 1272, 1275, 1983 WL 23858 (Rev. Comm. 1983) (instruction 

not to use unlighted, unprotected tractor at night goes toward recognition of hazard of 

unlit, obstacle-filled pipe storage yard); Mercer Well Serv., Inc., 5 BNA OSHC 1893, 

1977 WL 7758, *1 (Rev. Comm. 1977) (employer’s own safety rule requiring derrick 

men to wear a safety belt while riding elevators established it had actual knowledge that 

riding elevator without protection of safety belt was hazardous). 

49 
A. Wal-Mart Recognized Crowd-Related Hazards Because Employees 

Had Been Exposed to Serious Crowd-Related Incidents at Wal-Mart 

Stores Before 2008. 

 Respondent was aware that its employees were exposed to crowd-related hazards 

before November 28, 2008. The Secretary has presented evidence of numerous prior 

incidents both at the Valley Stream Store, and at other Wal-Mart stores throughout the 

nation that establishes Respondent’s knowledge of prior instances or complaints of the 

hazardous condition.23 Although the existence of prior reported injuries is not a sine qua 

non for establishing employer recognition under Section 5(a)(1),24 courts routinely deem 

such evidence of prior incidents, accidents, and injuries as probative of a party’s notice of 

a dangerous condition.25 

 

23 See, e.g., Carlyle Compressor Co., Div. of Carrier Corp., 683 F.2d at 677 (The danger 

of flying metal shafts from a grinding machine was a recognized hazard because the 

company knew of previous cases where the shafts were expelled); Praxair Distrib., Inc., 

2007 WL 2511145, at *3 (Respondent recognized the hazard based on a nonfatal incident 

in 2004, when another employee was struck by a falling lift gate, and on a 2004 toolbox 

meeting document that warns employees about the dangers of falling lift gates); Kus-Tum 

Builders, Inc., 1981 WL 18941, at *4-*5 (Improperly bracing large wooden roof trusses 

was recognized because the employer had been warned of the dangers by its own 

employees and by another contractor at the worksite). 

24 See, e.g., Arcadian Corp., 20 BNA OSHC at 2005 (in context of 5(a)(1) violation, 

rejecting Respondent’s argument that accident was “freakish and unprecedented,” and 

therefore unforeseeable, simply because it had not occurred before); Union Oil Co., 869 

F.2d 1039, 1045 (7th Cir. 1989) (rejecting Respondent’s argument that pressure vessel 

explosion was a “freak accident” based on factual determination that hazard of hydrogen 

stress corrosion cracking in a vessel was widely recognized even though no rupture or 

explosion had occurred before). 

25 See, e.g., Fears v. Wal-Mart Stores, Inc., Civ. A. No. 99-2515-JWL, 2000 WL 

1679418, *2-*4 (D. Kan. Oct. 13, 2000) (court found that discovery regarding prior 

injuries and incidents involving falling merchandise at all of Respondent’s stores in the 

U.S. for a five-year period was “probative of whether [Respondent] had notice of 

potentially dangerous situation and failed to implement an adequate safety program”); 

Granite City Terminals Corp., 12 BNA OSHC 1741, 1746, 1986 WL 53439 (Rev. 

Comm. 1986) (a company’s history of injuries is relevant to whether a reasonable person 

50 
1. Wal-Mart Was Aware of Prior Crowd-Related Incidents at the 

Valley Stream Store. 

Wal-Mart experienced crowd-related incidents at the Valley Stream Store during 

Blitz Day events from at least 2005 to 2007: employees were pinned by the crowd, 

employees were pushed by customers, the doors were knocked off while customers 

entered the Store, and both employees and customers fell and were injured. Numerous 

employees testified regarding incidents during Blitz Days at the Store in 2005-2007, 

including Salvatore D’Amico, Alton Calhoun, Justin Rice, Steve Sooknanan, Bibi 

Azeem, Dennis Smokes and Julius Blair. In addition, four exhibits in particular highlight 

these prior incidents and hazards at the Store: Secretary’s Exhibits 129 & 130 (claim 

records for customer injuries at the Store during Blitz Day 2005), Exhibit 48 

(Respondent’s Supplemental Response to Interrogatory No. 4 regarding customer injuries 

at the Store during Blitz Day 2005), and Exhibit 53 (NYIT video taken prior to Blitz Day 

2008 with interviews of managers Mr. Sooknanan and Mr. Rice). Indeed, Store Manager 

and long-time Wal-Mart employee Steve Sooknanan underscored the consistently unsafe 

conditions present at Blitz Days in his recorded remarks made merely days prior to Blitz 

Day 2008: “it’s always the same. It’s always in the morning, you know, the big rush and 

getting everybody through the door and everybody running towards that great item....” 

See Facts ¶ 13. 

i. Wal-Mart Knew That Crowd-Related Incidents Occurred at 

the Store on Blitz Day 2005. 

 In 2005, the crowd pushed and rushed into the Store, the front doors to the 

vestibule were broken off, and at least two customers were injured due to crowd crush. 

 

would recognize that the cited work practice is unsafe or hazardous) (citing General 

Dynamics, Elec. Boat Div., 15 BNA OSHC 1891, 1992 WL 184536 (ALJ 1982)). 

51 
Respondent was well aware of these incidents, as evidenced by the testimony of its 

employees and managers and by documents memorializing the crowd-related hazards. 

Both Mr. D’Amico and Mr. Calhoun testified that there was a crowd of customers 

waiting outside the Valley Stream Store before the doors opened on Blitz Day 2005. Tr. 

at 192:22-23, 902:7-9. Mr. Calhoun described the crowd’s entry as a “bum rush” as they 

pushed and rushed into the Store. Tr. at 902:16, 903:16-21. Similarly, Mr. D’Amico 

described the crowd’s entry into the Store as an “initial surge,” “when it comes closer to 

5:00 o’clock and the crowd is anxious, want to get in and get a hold of whatever 

merchandise it is they’re there for.” Tr. at 196:3-6, 197:21-198:1. 

Both Mr. D’Amico and Mr. Calhoun testified that when the crowd rushed into the 

Store in 2005, the front door came off the hinges. Tr. at 202:4-7, 203:3-8, 904:13-15. 

Store Manager Steve Sooknanan testified that he knew the doors had come off the rails in 

2005. Tr. at 1013:11-13; see also Sec. Ex. 152 at 73:7-15 (front doors came off the 

hinges in 2004 or 2005). Statements by assistant managers at the Store, as recorded in 

the claim documents for customer injuries at the Blitz Day 2005, corroborated the fact 

that the customers had broken the doors off completely upon entering the Store. Facts ¶ 

15; Sec. Ex. 130 (Claim #4836912) at 12, box 4 (“[T]he customers that were still waiting 

to come in had broken down the door.”).26 See also Sec. Ex. 152 at 84:6-16, 86:13-22. 

At least two customer injuries resulting from crowds rushing into the Store on 

Blitz Day 2005 were reported to Wal-Mart. Facts ¶ 15; Sec. Ex. 152 at 78:6-9. One of 

 

26 All the files regarding incident and injury reports were kept in the Valley Stream Store, 

including such reports from 2004-2008. Sec. Ex. 152 at 56:15-19. Respondent has no 

information that contradicts any statements made in those injury claims. Id. at 86:13-22. 

Moreover, statements by Respondent’s managers contained within injury claim forms 

constitute admissions of a party-opponent and thus are admissible as non-hearsay. See

Fed. R. Evid. 801(d)(2(D). 

52 
these injuries was described by Respondent as “Blitz crushed between door and the 

crowd.” Sec. Ex. 152 at 79:3-5, 9-18. An assistant manager at the Store stated that “they 

opened the doors at 5:00 and people from the PL [parking lot] came and pushed their way 

in. The claimant was pushed and pinned into the door until the door broke and then she 

finally got away.” Sec. Ex. 129 at 3, box 1. 

ii. Wal-Mart Knew That Crowd-Related Incidents Occurred at 

the Store on Blitz Day 2006. 

Upon opening the doors for the 2006 Blitz Day, the crowd once again pushed and 

rushed into the Store, the front doors to the vestibule were broken off again, and 

employees were stationed in the vestibule area to assist customers when they fell down. 

Respondent was well aware of these incidents, as evidenced by the testimony of its 

employees and managers. Both Mr. D’Amico and Mr. Calhoun testified that there was a 

crowd of customers waiting outside the Valley Stream Store before the doors opened on 

Blitz Day 2006. Tr. at 199:3-6, 905:6-8. Mr. Calhoun testified that he was concerned 

about the doors coming off prior to opening on Blitz Day 2006. Tr. at 905:2-5. Mr. 

Calhoun indicated that the crowd entered “just as the last year, they rushed in.” Tr. at 

905:21-22. Mr. Calhoun saw the crowd pushing on the front door; he was holding the 

door open as customers entered the Store. Tr. at 905:24-906:3. Mr. Calhoun testified 

that due to the crowd pushing on the door, the door came off the hinges again. Tr. at 

910:10-12. When the door came off, it was put to the side to “make sure it don’t fall on 

somebody.” Tr. at 910:13-16. Mr. D’Amico also testified during his direct examination, 

and at his deposition, that the customers pushed on the door and the door came off the 

53 
hinges (and it needed to be repaired) on Blitz Day 2006. Tr. at 200:24-201:7, 201:12-15, 

284:13-15.27 

Mr. Sooknanan testified that Store employees were stationed inside the vestibule 

at the time of the opening on Blitz Day 2006 to help people who fell. Sec. Ex. 152 at 

106:7-15. He indicated that he gave that instruction every year as a manager because 

every year people could fall upon entering the store. Sec. Ex. 152 at 106:16-18. He also 

testified that he told employees to stand to either side of the doors in the vestibule as the 

crowd entered the Store. Sec. Ex. 152 at 115:2-11. In preparation for either Blitz Day 

2006 or 2007, Mr. Sooknanan created a map of the Store to hand out to customers at the 

front door. Facts ¶ 14. The map included the following statement: “Please refrain from 

running as you enter the store to avoid injuring fellow shoppers and our associates.” Id.; 

see also Sec. Ex. 69 (Map of Valley Stream Store for Blitz Day 2006 or 2007). Mr. 

Sooknanan wrote that statement on the map because he was concerned that running might 

present hazards that may injure associates. Sec. Ex. 152 at 105:9-18; Tr. at 989:25-990:2, 

1030:14-1031:5. Mr. Sooknanan also wrote on the map “please wait for doors to be 

completely open before entering;” he included that statement, in part, “because he knew 

the doors were broken the year before and he wanted to make sure that similar issues did 

not happen again.” Sec. Ex. 152 at 106:19-107:9. 

 

27 Although Mr. D’Amico expressed confusion about the year(s) the Store had a problem 

with the door coming off the hinges during cross examination by Wal-Mart’s counsel, see

Tr. at 272:7-11, 284:22-285:13, he unequivocally testified that prior to 2008 the problems 

with the door occurred, thereby putting Wal-Mart on notice as to potential crowd-related 

hazards. 

54 
iii. Wal-Mart Knew That Crowd-Related Incidents Occurred at 

the Store on Blitz Day 2007. 

At the 2007 Blitz Day at the Valley Stream Store, the hazards were even more 

acute than in previous years as employees were pinned by the crowd against the front 

doors and cut by falling broken glass. The crowd was pressed up against the front doors 

and they pushed and rushed into the Store. The front doors to the vestibule were broken 

off again, glass from the vestibule broke and injured an employee, and employees were 

again positioned in the vestibule to assist falling and pushing customers. Respondent was 

well aware of these incidents, as evidenced by the testimony of its employees and 

managers and by a videotaped interview of a manager regarding the crowd-related 

hazards he experienced in 2007. Mr. Rice, Mr. Calhoun and Mr. Blair all testified that 

there was a crowd of customers waiting outside the Valley Stream Store before the doors 

opened on Blitz Day 2007. Tr. at 126:4-9 (when Mr. Rice arrived around 4:00 a.m., 

customers were waiting outside as far back as the next building), 911:5-10 (Mr. Calhoun 

stated that people were “close on the door” when the store opened); Sec. Ex. 145 at 77:5-

15 (when Mr. Blair arrived at store, people outside were not in a line, they were in front 

of the Store doors). 

Mr. Rice testified that he and other employees went outside to help “lean” people 

off the front door and try to get the crowd to step back because they were too close to the 

door. Tr. at 129:12-16, 130:7-15. The customers were right in front of the doors; Mr. 

Rice stated that he “could have kissed them on their forehead.” Id. Mr. Sooknanan 

testified that the customers were bunching at the doors, pushing and putting pressure on 

the doors. Tr. at 1037:9-12, 1039:3-12; Sec. Ex. 152 at 140:14-17, 141: 7-12, 142:8-23, 

160:19-25, 236:4-10. Mr. Sooknanan was concerned about the crowd being so close to 

55 
the door; he testified that that the customers got “too close for comfort.” Facts ¶ 16. 

Nevertheless, numerous employees were stationed in or around the vestibule for the 

opening, including Mr. Smokes, Mr. Calhoun and Mr. Rice. Tr. at 1042:20-1043:14, 

912:1-3, 7-15, 122:1-123:10, 123:16-19, 124:6-8; Sec. Ex. 151 at 36:23-37:2, 40:14-20. 

Mr. Blair testified that prior to the doors opening, employees were instructed by a 

manager to step to the side when customers were entering the store, so that they would 

not get hurt by customers running into the store. Sec. Ex. 145 at 93:2-14, 95:15-19. Mr. 

Smokes also testified that he received an instruction from a store manager to “stand back” 

because of the crowds and “[j]ust don’t stand in front of the door.” Sec. Ex. 151 at 

41:22-42:25. 

Both Mr. Rice and Mr. Smokes testified that immediately prior to the doors 

opening on Blitz Day 2007, there was an employee “countdown.” Tr. at 117:21-118:2; 

Sec. Ex. 151 at 41:3-4. Mr. Rice described how after the employees counted down to 

one, it was silent and then there was a cracking noise of people pushing against the glass 

in the doors and the vestibule area. Tr. at 117:21-118:2, 121:18-23. He testified that the 

force of the crowd pushing on the vestibule glass sounded like the vestibule was about to 

fall apart from the pressure. Id. Five employees testified that when the doors opened, the 

crowd rushed inside and the pressure the customers were exerting on the front door 

caused the door to come off the hinges. Tr. at 124:6-23 (Rice: crowd was pushing into 

vestibule and doors broke), 911:11-17, 912:7-15 (Calhoun: crowd rushed in and glass 

came off door); Sec. Ex. 151 at 44:7-45:5 (Smokes: door fell off, customers rushing in 

and “rammed against the door”); Sec. Ex. 152 at 140:4-9, 142:8-12, 142:21-143:2, 

143:18-20 (Sooknanan: customer rush when doors opened, doors came off hinges due to 

56 
pressure from crowd); Sec. Ex. 145 at 89:5-8, 89:21-90:2, 90:9-11 (Blair: customers 

pushed through doors into store and front doors came off hinges). 

Numerous employees were positioned in or near the vestibule at the time of the 

opening, including Mr. Rice, Mr. Calhoun and Mr. Smokes. Mr. Rice and other 

employees were pushed against the vestibule door by the crowd, and he was pinned 

against the door for several minutes. Facts ¶ 16. Mr. Calhoun was holding one of the 

doors as customers rushed into the vestibule and the glass came off the door. Tr. at 

912:1-3, 7-15. Mr. Smokes was also in the vestibule and witnessed management 

employees trying to hold the door when it came off because of the crowd pushing. Sec. 

Ex. 151 at 45:6-46:10. Mr. Smokes saw many people running, pushing and falling, and 

he and other employees were in the vestibule trying to help customers quickly to their 

feet as the crowd was still rushing into the Store. Sec. Ex. 151 at 46:14-25, 47:1-19, 

48:8-10, 53:13-23. Ms. Azeem and Mr. Sooknanan also witnessed customers rushing and 

running in the vestibule and into the Store. Sec. Ex. 144 at 40:17-41:14; Sec. Ex. 152 at 

141:19-142:3. 

Mr. Rice was injured by broken glass from the vestibule that broke while the 

doors were opening and fell down onto him. Facts ¶ 16. He put up his hand to protect 

his face from the falling glass and cut his hand. Tr. at 124:9-23, 131:7-24. Both Mr. 

Rice and Mr. Sooknanan testified that Mr. Rice informed Store Manager Sooknanan of 

this injury. Tr. at 138:15-18, 1042:23-1043:14. 

Mr. Rice’s experiences during Blitz Day 2007 and the some of the concerns he 

raised with Store Manager Sooknanan were also recorded in a videotaped interview with 

57 
a student reporter taken only a few days prior to Blitz Day 2008.28 See Sec. Ex. 53. Mr. 

Rice ominously described the entry of the crowd in 2007 following the countdown: “And 

as soon as they said one, it got silent and all you heard was [makes cracking sound] and 

everybody was just pushing. It was – it was like a rampage in here. It was crazy.” Sec. 

Ex. 53 from 18:30 to 19:30 (see Tr. of Sec. Ex. 53 at 21:8-11). He estimated that 

approximately three hundred people entered the Store right as the doors opened in 2007. 

Tr. of Sec. Ex. 53 at 21:21-25. During the recorded interview, Mr. Rice also stated that 

he was going to throw different ideas at the Store Manager to attempt to “just make it 

[Blitz Day 2008] safe, because . . . last year was crazy.” Tr. of Sec. Ex. 53 at 22:25-23:8. 

Mr. Rice’s express statement of concern to Mr. Sooknanan leaves no doubt that WalMart employees faced serious dangers posed by the rush of crowds at Blitz Day Events, 

and these dangers were identified by Wal-Mart management. 

iv. Wal-Mart Recognized the Crowd-Related Hazards at the 

Store Following Blitz Day 2007. 

After three years of similar incidents on Blitz Day at the Valley Stream Store, 

Respondent knew that it should expect the following conditions on future Blitz Days: (1) 

that a large crowd would be present outside the store prior to the opening; (2) that the 

crowd would be gathered close to the Store entrance doors and pushing on the front 

doors; (3) that the crowd would rush into the store and people would be knocked down; 

(4) that the front doors would fall down and/or be knocked off the hinges from the 

pressure of the crowd; (5) that employees positioned in the vestibule to hold the doors 

 

28 As part of a class project, students from the New York Institute of Technology 

(“NYIT”) received approval to interview Mr. Sooknanan regarding Wal-Mart’s Blitz Day 

preparations, and to video inside the Valley Stream Store prior to Blitz Day 2008. See

Sec. Ex. 152 at 183:3-24, 184:23-185:3. 

58 
and assist the entering crowd would be subjected to struck by hazards posed by doors, 

glass and customers; and (6) that the unmanaged crowd posed serious hazards to its 

employees due to crowd surge, crowd crush and crowd trampling. 

 In fact, two management employees, Mr. Rice and Mr. Blair, specifically raised 

their safety concerns with Store Manager Sooknanan on separate occasions following the 

incidents during Blitz Day 2007 at the Store. Sometime after Blitz Day 2007, Mr. Blair 

had a conversation with Mr. Sooknanan regarding his concerns about the doors coming 

off the hinges during the opening of the Store on Blitz Day. Sec. Ex. 145 at 101:14-

102:18; Tr. at 1047:7-10. Mr. Sooknanan admitted that he was also concerned because 

the customers got too close to the door for his comfort during Blitz Day 2007. Tr. at 

1047:11-14. Mr. Blair testified that he suggested to Mr. Sooknanan that the Store use 

barricades for upcoming events, as a measure to prevent the door from coming off the 

hinges. Sec. Ex. 145 at 101:14-102:18. Although Mr. Blair, like the other Wal-Mart 

employees, lacked any crowd management training, he told Mr. Sooknanan that it would 

be easier to open the doors if the crowd was away from the doors when the doors are 

opening, and he suggested barricades. Sec. Ex. 145 at 102:19-25. Mr. Blair testified that 

Mr. Sooknanan told him “we’ll do that next year,” for the 2008 Blitz Day. Sec. Ex. 145 

at 103:2-7. Mr. Sooknanan testified that, prior to Blitz Day 2008, Mr. Rice also raised 

concerns about customers pushing on the front door and being too close to the door 

during Blitz Day 2007. Tr. at 1047:22-1048:1; see also Tr. at 999:4-8 (Mr. Sooknanan 

admitted that Rice “had voiced some concern about the amount of people that initially 

entered into the store when it opened”). Based on Mr. Rice’s injury during Blitz Day 

59 
2007, as well as the concerns raised by Mr. Blair and Mr. Rice, Mr. Sooknanan decided 

to use barricades to create a buffer zone for Blitz Day 2008. Tr. at 999:4-8, 1047:19-21. 

 Mr. Blair was also a member of the Valley Stream Store’s safety team in 2008. 

Sec. Ex. 145 at 155:4-17. Mr. Blair explained that “crowd control” was listed under 

“Plan for Blitz” in the Store safety committee notes (drafted weeks prior to Blitz Day 

2008) because crowd control was needed so that no one would get hurt, and this concern 

was based, in part, on the previous year’s Blitz Day in 2007. Sec. Ex. 145 at 161:6-10. 

Mr. Rice also testified that he was concerned about the safety of employees and 

customers during Blitz Day based on the incidents in 2007. Tr. at 125:10-15. Mr. Rice 

raised concerns with Store Manager Sooknanan during a meeting at the Store a few days 

prior to Blitz Day 2008, as recorded on videotape by NYIT students. See Sec. Ex. 53. 

During this meeting, Mr. Rice stated: “I was at the door last year, I just want somebody 

else out there with me.” Sec. Ex. 53 from 17:00 to 18:00 (see Tr. of Sec. Ex. 53 at 18:19-

20). Mr. Sooknanan responded: “We’ll have enough. We’ll have enough people at the 

door. We’ll have overnight [indiscernible] going to provide a lot of people 

[indiscernible] at the doors.... So it’s not – we’re going to do it a little bit differently. 

We’ll keep the line farther away from the door this year.” Sec. Ex. 53 from 17:00 to 

18:00 (see Tr. of Sec. Ex. 53 at 18:23-19:2, 19:7-9). Clearly, based on his own safety 

concerns and the concerns raised by other management employees regarding crowd entry 

on Blitz Days prior to Blitz Day 2008, Store Manager Sooknanan was aware of the 

potential crowd-related hazards posed to Store employees. 

Indeed, the hazardous conditions present on Blitz Day 2008 at the Valley Stream 

Store represented a continuing pattern of unsafe conditions due to recognized crowd60 
related hazards to its employees during the Store’s Blitz Days, and Respondent’s failure 

to implement appropriate crowd management planning, training and measures in the face 

of this knowledge. These hazards were clearly recognized by Respondent’s managers at 

the Valley Stream Store. 

2. Wal-Mart Was Aware of Prior Crowd-Related Incidents at Its 

Stores Nationwide. 

 The hazards at the Valley Stream Store were not unique; Wal-Mart was aware of 

similar reported crowd-related incidents and hazardous conditions at its other stores prior 

to 2008. As a corporation, Respondent’s knowledge is memorialized in its documents 

and cannot be overlooked: 

 Corporations do not record knowledge in neural pathways; they record it 

in file cabinets (and increasingly on computer disks). File cabinets do not 

“forget.” Files may be destroyed, and people may forget about data in file 

cabinets, but a [document indicating knowledge of certain fact] remains in 

the corporation’s knowledge as long as the [document] itself continues to 

exist (and, even after its destruction, as long as a responsible employee 

remembers it).29 

 Here, Respondent had notice of over 160 reports of incidents or injuries to 

employees and customers who were struck or injured by crowds entering or rushing 

through Respondent’s stores during Blitz Days in 2003-2007 across the country. See, 

e.g., Sec. Exs. 112-123, 127. Indeed, in its discovery responses, which Respondent was 

ultimately compelled by Chief Judge Sommer to produce, Respondent admitted notice of 

over 100 incidents. Sec. Ex. 48 at 15-16 (listing 114 claims of strikes to customers and 

employees which met the following limited criteria: (1) “employees and/or customers 

who were struck or injured by crowds entering or rushing through the store,” (2) from 

 

29 Ladish Malting Co., 135 F.3d at 492-93. 

61 
“centrally-located” information, (3) from “a period of five years before the subject 

incident,” and (4) on Blitz Days (and a few other limited holidays)). Respondent does 

not deny that every single one of these injuries were reported and recorded in its CMI 

claims forms records. Facts ¶ 19. 

 CMI, Wal-Mart’s administrator for all injury claims, is a wholly owned subsidiary 

of Wal-Mart and effectively a unit within Wal-Mart’s corporate structure. Facts ¶ 4. 

Accidents or incidents involving employees and/or customers are reported electronically 

by Wal-Mart managers through CMI’s Incident Reporting System, which is available on 

store computers and connected to Wal-Mart’s own intranet. Facts ¶ 7. Wal-Mart 

management employees, at the store, regional, district and corporate levels, have direct 

access to claims from all stores, including information such as store location, description 

of injury, date and time of incident, whether any work was lost by the claimant, and 

whether any medical attention was required. Facts ¶¶ 8-9. In addition, the Home Office 

and Wal-Mart managers may request accident incidence and summary reports, prepared 

and generated from the information stored by CMI. Facts ¶ 10. Specifically, reports can 

be requested by type of injury, location of injury, and frequency of injury by hour of the 

day (i.e., all “struck by” injuries in the vestibule between the hours of 5:00 a.m. and 6:00 

a.m. on Blitz Day). Facts ¶ 10. Indeed, in advance of the 2008 Blitz Day Event, WalMart personnel requested a summary of incident and accident reports that specifically 

occurred in the vestibule of its stores on prior Blitz Days. Facts ¶ 11. 

 As the evidence of prior crowd-related incidents at Wal-Mart stores has been 

offered by the Secretary to demonstrate Respondent’s notice of crowd-related hazards, 

62 
the veracity of the underlying injury claims is not important.30 Respondent’s notice of 

reported incidents of similar hazardous conditions reflects Respondent’s recognition of 

the cited hazards to its employees. The Commission has held that such prior incidents 

need not take place at the same facility.31 Furthermore, in establishing notice of prior 

incidents, “[t]he incidents need only be sufficiently similar to make the defendant aware 

of the dangerous situation.”32 Accordingly, the fact that prior incidents may have 

occurred at other Wal-Mart stores, or involved injuries to customers as well as 

employees, does not eviscerate the relevance of such evidence in demonstrating 

Respondent’s notice of similar hazardous conditions. Indeed, as the video footage from 

Blitz Day 2008 has shown, employees positioned in the same or nearby locations as 

 

30 However, the manager statements contained in these documents constitute non-hearsay 

admissions pursuant to Federal Rule of Evidence 801(d)(2)(D) and thus are offered for 

their truth. Fed. R. Evid. 801(d)(2)(D); see also Sec. Ex. 148 at 116:25-118:5 

(Respondent does not have any information that would contradict the statements 

attributed to management employees in injury claim forms, beyond any information 

contained in claim forms or discovery responses.). 

31 Jones & Laughlin Steel Corp., 10 BNA OSHC 1778, 1982 WL 22627, *3 n7 (Rev. 

Comm. 1982) (in a 5(a)(1) case, the Commission agreed that evidence of prior fatality at 

a different plant was relevant and should not have been excluded from evidence); 

Continental Oil Co., 630 F.2d 446, 448 (6th Cir. 1980) (affirming the Commission’s 

ruling that Continental recognized the hazards posed by overflows of inherently 

dangerous product and that Continental was aware of a similar explosion at another tank 

farm which, like Continental, used an unmanned delivery system); Dye Constr. Co., 9 

BNA OSHC 1215, 1980 WL 10549, *8 (ALJ 1980), aff’d 698 F.2d 423 (10th Cir. 1983) 

(the existence of an unsafe condition was proven, in part, by the employer’s knowledge 

of one prior accident at another location). See also Wal-Mart Stores, Inc., 406 F.3d 731, 

737 (D.C. Cir. 2005) (repeat classification against Wal-Mart upheld based on violation at 

another store). 

32 Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1386 (4th Cir. 1995) (similarity of prior 

incidents when proving notice is more relaxed than when proving negligence; upholding 

admissibility of dissimilar incident reports for purposes of proving notice, finding that 

they were “highly probative” despite various differences). 

63 
customers were exposed to similar crowd-related safety hazards on Blitz Day.33 See

App. C (chart summarizing video footage of Blitz Day 2008 Store opening). 

 The many crowd-related incidents and injuries reported in its claims records gave 

Wal-Mart knowledge of the hazardous conditions its employees were exposed to on Blitz 

Days and the need for effective crowd management to protect its employees from the 

cited hazards. Specifically, Respondent’s claim documents highlight its awareness of the 

following hazardous conditions reported on Blitz Days at its stores: (1) crowds rushing 

into its stores upon the opening of the doors on the morning of Blitz Day; (2) employees 

and customers being pushed or struck by entering crowds; (3) employees and customers 

being pushed or knocked down and trampled by entering crowds; (4) employees and 

customers being pushed, crushed or pinned against the store or doors by entering crowds; 

and (5) a lack of appropriate crowd control implemented by its stores.34 

i. Wal-Mart Had Notice That Crowds Rushing Into Its Stores 

on Blitz Day Presented Serious Hazards to Employees. 

 Based on its claims forms documents, Wal-Mart had notice of crowds rushing 

into its stores upon the opening of the store doors for Blitz Day. Indeed, even the limited 

portions highlighted in Appendix B contain more than thirty references to crowds rushing 

 

33 As Your Honor recognized in ruling on pretrial motions, prior injuries to customers are 

highly relevant in showing Respondent’s awareness of potential hazards to its employees. 

See Order dated June 23, 2010 (denying Respondent’s motion in limine to exclude 

evidence of prior crowd-related incidents and injuries at Wal-Mart stores). As the 

evidence has shown, Wal-Mart employees were often stationed in the vestibule on Blitz 

Days and subject to the same or similar hazardous conditions as customers. 

34 The information and quotations cited below, contained in Secretary’s Exhibits 112-123 

and 127, are also easily located in the Secretary’s Summary Chart of Prior Claims Forms, 

attached hereto at Appendix B. In the chart, the Secretary identifies 114 pages (from 51 

individual claims) in Respondent’s claim forms that contain specific information and 

statements particularly relevant to Respondent’s notice of hazards associated with Blitz 

Day crowds. See also footnote 5. 

64 
into Wal-Mart stores on prior Blitz Days as the doors opened. See Sec. Exs. 116, 117, 

120, 121, 122 & 123 (employees “injured in [or during] Blitz rush”); Sec. Ex. 127 at 18 

(same); 95 (“big crowd” entered when doors opened); 102 (when doors opened 

“everyone . . . started crowding into the line from several directions”); 259 (“There were 

thousands and thousands of [people]. [People] started yelling they are opening the doors. 

[People] rushed.”); 282 (crowd “started to push when the doors were open”); 341 (“there 

was a mad rush when the doors were open”); 455-456 (“the minute the doors were being 

opened people tried to push their way through and customers “started busting through the 

exit doors”); 672 (“when the doors were opened it became a stampede of customers into 

the store”); 679-680 (“200 people outside trying to get in . . . [a]s soon as their keys 

clicked opened [sic] the customers started pouring in;” “customers appear to immediately 

start running into the store”); 882 & 911 & 987 (“The doors were opened and they all 

made a mad rush.”); 962 (“600-800 people rushing in the doors”); 986 (“customers 

rushed in the door on blitz day and clmt fell”); 1018 (“There was a mass rush at the 

door.”); 1076 (“They opened up the doors and they had a rush of customers”); 1151 

(“Once the doors were opened, the crowd began running.”); 1177 & 1182 (“one minute 

after the hour” crowd of more than 625 people was “rushing into the store”); 1273 

(“rushing in with other customers on blitz days [sic]”); 1335 (“everyone started rushing 

into the store when they opened the doors”); 1356 (“when the doors opened a crowd from 

across the cross walk stormed the store”); 1386 & 1390 (“people all rushed in at once 

when the door was opened;” “[w]hen the doors opened at 5:00 A, people just began 

pushing and rushing”); 1403 (when doors opened “they all started pushing and rushing”); 

1420 & 1429 (“[w]hen the doors opened others not in line rushed up”); 2250-2251 

65 
(“[Store] had a little trouble getting doors opened and when they did all the customers 

we[r]e anxious and they crashed thru [sic] the doors and dashed inside like a stampede.”). 

Video footage from certain injury claims also provided Respondent with 

knowledge of crowd surge and crowds rushing in its stores on prior Blitz Days. See Sec. 

Ex. 128f (WM2009-43501/v000000015 video footage from injury claim) from 04:00 to 

05:30 (showing crowd rushing into store as doors are opened); Sec. Ex. 128d (WM2009-

43501/v000000013 news coverage with video footage from injury claim) from 0:00 to 

02:30 (showing crowd rushing into store as doors are opened); Tr. of Sec. Ex. 128d at 

2:4-6, 12-14, 18-19 (“crowd storms the doors in the mad rush to get to those door-buster 

deals inside;” hundreds of shoppers rushed in, pushing and shoving as doors opened). 

ii. Wal-Mart Had Notice That Employees and Customers 

Were Pushed and Struck By Crowds Rushing Into Its Stores 

on Blitz Day. 

The limited portions of Respondent’s claim documents highlighted in Appendix B 

contain almost twenty references to employees and customers being pushed or struck by 

crowds entering Wal-Mart stores on prior Blitz Days.35 See Sec. Exs. 118 & 119 

(employee “struck by Blitz rush customers”); Sec. Ex. 127 at 31 (same); 102 (crowd was 

“[p]ushing & shoving”); 235 & 238 (“pushed down” to floor “upon entering store”); 256 

(“Blitz Day mob pushed her to the floor”); 280 & 282 (“[p]ushed down by other 

customers;” “knocked down to the floor” by crowd when entering); 409 (“[p]ushed or fell 

during blitz”); 411 & 415 (“Blitz pushed by customers” and “went flying into the store”); 

672 (“pushed down” as crowd entered); 1151 (“The [associates and managers] were 

 

35 References to employees or customers being pushed or struck which also describe 

crowd trampling or crowd crush are not included here; such references have been noted 

below, see Sections II.B.2.iii & iv. 

66 
actually shoved aside and had to push their way thru [sic] the crowd.”); 1389 (“[p]eople 

were pushing” and it was “crazy”); 1414 & 1416 (“knocked down by customers” when 

doors first opened); 2312-2313 (“pushed from behind by other shoppers while trying to 

enter store”); 2323 (crowd was “pushing and shoving” as they entered and claimant “got 

knocked down”); see also Facts ¶¶ 17 and 18. 

iii. Wal-Mart Had Notice That Employees and Customers 

Were Knocked Down and Trampled By Crowds Rushing 

Into Its Stores on Blitz Day. 

The limited portions of Respondent’s claim documents highlighted in Appendix B 

contain more than thirty references to employees and customers being pushed or knocked 

down and trampled by crowds entering Wal-Mart stores on prior Blitz Days. See Sec. 

Exs. 112 & 113 (employee “knocked down and trampled by customers”); Sec. Ex. 127 at 

12 (employee “pushed down and trampled by the crowd”); 40 (“several 

associates/customers were injured in trampling over Blitz sale”); 95 (“trompled [sic] by 

the crowd”); 261 (“knocked down and wlkd [sic] over by [people] during a blitz rush”); 

270 & 275 (“[p]ushed and stepped on when the doors opened;” “got trampled”); 293-294 

(“lot of people ran over knock [sic] to floor;” entering crowd pushed, knocked her off her 

feet and “tumpled [sic] her”); 350-353 (“[r]an over by customers coming in the door;” 

crowd pushed and knocked down, “trampled by customers coming into the store”); 453, 

455 & 456 (crowd pushed, “knocked down and trampled” as entered store); 680, 689 & 

707 (“pushed down as crowd poured in” and “stampeded;” employees tried to stop crowd 

from running over him but “not in time for a few people to step on him”); 882 & 911 & 

987 (unlocked doors and customers “all fell in;” one customer pushed from behind, fell 

and “the rest fell on top”); 1074 & 1076 (“Blitz – customer was trampled coming in 

67 
building;” “she was run over” by crowd rush); 1149-1150 & 1153 (“Blitz – pushed down 

on Blitz Day and walked on;” “pushed down by another customer and trampled by the 

crowd;” “trampled by the crowd when the doors were opened for Blitz”); 1182 (“pushed 

flat on the floor – people kept trampling over her”); 1335 & 1343 (“People in the back 

pushed forward” and 6 people “fell on top of the clmt;” “2 people got 

trampled....“[claimant] had broke [sic] kneecaps.”); 1403 & 1411 (“got pushed down and 

stampeded;” “got trampled;” “someone stepped on her head, and body ... said she truly 

though[t] she was going to die...”); 2250-2251 (crowd “pushed her down and a lot of 

people started running over the top of her... too many people coming for her to get up by 

herself”); see also Facts ¶¶ 17 and 18. 

Video footage from certain injury claims also provided Respondent with 

knowledge of crowd trampling on prior Blitz Days. See Sec. Ex. 128f from 04:00 to 

05:30 (showing people pushing and falling during crowd entry and employees positioned 

in vestibule); Sec. Ex. 128d from 0:00 to 02:30 (showing people pushing and falling 

during crowd entry and people being trampled by crowd); Tr. of Sec. Ex. 128d at 2:1-2, 

15-16, 19-20 (crowds “trampling a number of customers, sending two to the hospital”) & 

3:6-7 (“lady knocked down and people trampling over her”). 

iv. Wal-Mart Had Notice That Employees and Customers 

Were Pushed, Crushed or Pinned Against the Store or 

Doors By Crowds Rushing Into Its Stores on Blitz Day. 

The limited portions of Respondent’s claim documents highlighted in Appendix B 

contain nearly twenty-five references to employees and customers being pushed, crushed 

or pinned against the store or doors by crowds entering Wal-Mart stores on prior Blitz 

Days. See Sec. Exs. 114 & 115 (employee “[o]pening doors for Blitz, pushed against the 

68 
doors”); Sec. Ex. 127 at 9 (same); 91 (“squished in crowd”); 98 (“pushed and 

pinned/door”); 99 & 102 (“pinned by crowd while entering the store;” “crushed under the

people”); 205 & 208 (“[t]rying to get in the door and got slammed into it and pinned 

against it;” crowd “squeezed [ ] against the glass”); 338 & 341 (“crushed in customer 

rush blitz sale;” “pinned against the pallets outside the door”); 415 (“when the doors were 

opened, it created a stampede” and “pinned up against something”); 962 (“as they open 

[sic] the doors the wave of people got her caught in the doors and she broke two ribs;”); 

998 & 1002 (“Blitz-Pinned Against Door by the Crowd;” “pushed against the wall by the 

crowd”); 1012 (“lot of pushing,” manager “stood there traped [sic] for a good 10 to 15 

minu[t]es”); 1016 & 1018 (“caught up in the crowd and pined [sic] against the door and 

the shopping cart,” “saw the older lady get pinned up against the wall”); 1273 (“pushed 

by other customers into the manuel [sic] doors”); 1356 (“was thrown up against the metal 

detector” as crowd entered); 1388 & 1390 (“pinned against the wall” by shopping cart 

during crowd entry); 1420 & 1429 (“crushed him up against a black bench, shopping 

carts and the front door”); 2242 (“several customers were pushing through doorway and 

she got her hand crushed”); see also Facts ¶¶ 17 and 18. 

v. Wal-Mart Knew That It Lacked Appropriate Crowd 

Control Measures at Its Stores. 

The limited portions of Respondent’s claim documents highlighted in Appendix B 

contain more than twenty references to a lack of appropriate crowd management and 

crowd control measures implemented by Wal-Mart stores on prior Blitz Days. See Sec. 

Ex. 127 at 275 (“[parking lot] was filled, line wrapped around building, no security until 

5 minutes before store opened but crowd was out of control”); 294 (“no one came out to 

warn the crowd to be careful or anything”); 672 (store and security personnel in parking 

69 
lot were ineffective in controlling crowd); 707 (“The store security guards who opened 

the doors just stepped back and let the flood of customers enter without any order 

whatsoever.”); 882 & 911 (employees were at the doors “trying to do crowd control,” 

customers “not in line at all,” employees were “yelling to walk don’t run the whole time 

but they could not be heard over the crowd”); 984 (“people were pulling up getting out of 

their cars and pushing to the front”); 987 (questions in file included: “What kinds of 

precautions was this store taking? ...Were all [available] doors open? How many 

customers (estimated) were in line waiting? Were any associates warning, asking 

everyone not to run, proceed in normal fashion? Any numbers or any kind of system 

used to hand out items?”); 1011 (Blitz Day injury “due to W/M allegedly providing no 

crowd control”); 1018 (“We did have 1 poorly trained security guard there he was trying 

to control this mass people.”); 1273 (“this is not a 24hr store and [crowd injury] occurred 

when they opened”); 1356 & 1365 (“No crowd control. No one trying to contain the 

shoppers or keep order & people safe.” Claimant was a former associate “so she is well 

aware of [ ] what the store is like on this day.”); 1386 & 1390 (claimant and wife noted 

there was “no security;” “What methods of crowd control were being used by the store 

prior to the inc;” “[T]hey only allowed entrance at one door to better control the rush...If 

the crowd had not been under some control, others would have been hurt also, according 

to [employee].”); 1403 & 1411 (“no one outside directing the crowd;” store manager 

stated “no crowd control measures specifically” and “store should have had some type of 

crowd control;” claimant said “no one trying any crowd control measures, they just 

opened the doors and let them go”); 1416 (“requesting information on what precautions 

were taken in crowd control”); 1429 (“The store created the atmosphere in which this 

70 
customer was injured...”); 2313 (questions in file included: “did store have any [asset 

prevention or associates] assigned outside to maintain crowd – confirm what store was 

doing to maintain crowd”); 2323 (“I asked him if the [store] tried to control the crowd 

[employee said] there was nothing they could do except stay out of the way.”); see also

Facts ¶¶ 17 and 18. 

Video footage from certain injury claims also provided Respondent with 

knowledge of the need for appropriate crowd management and crowd control to manage 

Blitz Day crowds. See Sec. Ex. 128f from 04:00 to 05:30 (showing employees 

positioned in vestibule during crowd rush); Sec. Ex. 128d from 0:00 to 02:30; Tr. of Sec. 

Ex. 128d at 4:5-17 (complaints regarding the store’s “lack of security;” Wal-Mart 

“should hire trained uniformed security guards to help bring order to this early-morning 

holiday crowd”). 

 In addition to these extensive references in its own documents, crowd-related 

incidents at Wal-Mart stores during prior Blitz Day events have been the subject of media 

coverage. See, e.g., Sec. Ex. 107 (ProQuest Wall Street Journal article regarding crowd 

problems in Pennsylvania and California at 2003 Blitz Days) at 1 (report of near riot; 

door hinge snapped at one location; public officials met with Wal-Mart); Sec. Ex. 108 

(Westlaw Milwaukee Journal Sentinel article regarding crowd problems in Milwaukee 

for PlayStation 3 release) at 1 (customer stampede, trampling); Sec. Ex. 109 (Westlaw 

Daily News article regarding crowd problems in Palmdale, California for PlayStation 3 

release) at 1 (unruly crowds, concern regarding safety); Sec. Ex. 110 (Lincoln Journal 

Star article regarding crowd problems in Lincoln at 2005 Blitz Day) at 1 (people pushed 

by crowd; stampedes; location where there was a controlled line had no problems), Sec. 

71 
Ex. 111 (WKYC.com website article regarding crowd problems in Michigan at 2005 

Blitz Day) at 1 (customer injured as people rush into store; crush of shoppers; people 

fell). It is difficult to fathom that these widely reported events simply escaped WalMart’s knowledge – particularly since they reflect the same type of events and incidents 

extensively reported in Wal-Mart’s own claim documents. 

B. Wal-Mart’s Blitz Day Planning Documents Demonstrate That WalMart Recognized Crowd-Related Hazards. 

As noted above, an employer’s knowledge of the hazard may be evidenced by 

information contained in corporate documents, such as the company’s safety 

documents.36 Knowledge is imputed to the corporation as long as the information is 

reflected in corporate documents, or if such documents are destroyed, as long as someone 

remembers the information contained in the documents.37 Wal-Mart’s documents, 

including both corporate-wide and Store-based planning documents and e-mails, further 

underscore its recognition of the crowd-related hazards posed on Blitz Days. 

Numerous Wal-Mart documents, created in preparation for Blitz Days in 2007 

and 2008, explicitly reference the need for its stores to plan for “crowd control.” See

 

36 See Puffer’s Hardware, Inc., 742 F.2d at 18 (employer’s safety program may constitute 

evidence that employer recognized hazard at issue); General Dynamics Land Sys., Inc., 

1993 WL 15067, at *3 (several company safety bulletins go toward showing 

recognition); Ulysses Irrigation Pipe Co., 11 BNA OSHC at 1275 (instruction not to use 

unlighted, unprotected tractor at night goes toward recognition of hazard of unlit, 

obstacle-filled pipe storage yard); Mercer Well Serv., Inc., 1977 WL 7758, at *1 

(employer’s own safety rule requiring derrick men to wear a safety belt while riding 

elevators established it had actual knowledge that riding elevator without protection of 

safety belt was hazardous); Ted Wilkerson Inc., 9 BNA OSHC at 2016 (employer’s work 

rule evidences recognition of hazard under general duty clause). See also The Timken 

Co., 2003 WL 1889150, at *6-*8. 

37 Ladish Malting Co., 135 F.3d at 492-93 (corporate knowledge remains as long as 

information is reflected in corporate documents and even after its destruction, as long as a 

responsible employee remembers it). 

72 
Sec. Ex. 71 (Blitz Weekend Priorities, 2007) at 4 (Blitz morning: “All AP staff ready and 

prepared for safety, crowd control and assisting associates.”); Sec. Ex. 3 (Blitz and 

Holiday Security Focus 2008) at 2 (Blitz Security Focus: “Ensure stores have action 

plans in place for crowd control and customer safety.”); Sec. Ex. 14 (November 20, 2008 

e-mail from Asset Protection Communication to Asset Protection Recovery Team) at 1 

(Blitz Response Reminder: “Review action plans for crowd control and customer 

safety.”); Sec. Ex. 15 (November 25, 2008 e-mail from S. D’Amico to J. Blair and 

others) at 2 (Blitz: Increased Customer Traffic: “Please ensure actions plans for crowd 

control . . . and customer safety are in place.”); Sec. Ex. 16 (Valley Stream Store safety 

committee notes, 2008) at 7 (“Plan for Blitz” lists “crowd control”); Sec. Ex. 54 (October 

17, 2008 e-mail from B. Broadus to Region 1 AP) at 2 (“need to focus on crowd control 

and crowd flow”). Both Market Asset Protection Manager Salvatore D’Amico and Vice 

President of Asset Protection Monica Mullins testified that Wal-Mart’s “actionable” email instructed stores to “review action plans for crowd control and customer safety,” see

Sec. Ex. 14, required the Market Asset Protection Manager to comply. Tr. at 230:17-19; 

Sec. Ex. 148 at 182:20-183:7. These documents highlight Respondent’s knowledge of 

the cited hazards, and the necessity of planning for and providing crowd control for its 

Blitz Day events accordingly. 

In addition to explicit language requiring action plans for crowd control, various 

Wal-Mart documents recommended that stores implement certain measures, such as 

communicating with the crowd. See Sec. Ex. 7 (Blitz Day Best Practices 2008) at 2 

(“Managers should consider ‘talking’ with customers before opening. Included in talking 

points would be general points about shopping safely, locations of key items, not running, 

73 
not throwing merchandise, etc.”); Sec. Ex. 13 at 1 (same); Sec. Ex. 15 at 2 (“Prior to 

opening on the morning of Blitz, stores should consider having store associates ‘meet and 

greet’ customers as they wait in line.”). Such documents, emphasizing particular crowd 

management measures, further highlight Respondent’s recognition of crowd-related 

hazards and the need to implement safety measures. 

Despite its failure to implement adequate crowd management planning and 

measures at the Valley Stream Store on Blitz Day 2008, Respondent’s recognition of 

crowd-related hazards is further supported by the Black Friday Market 45 Action Plan 

created by Mr. D’Amico in preparation for Blitz Day 2008. Facts ¶ 23. This operational 

document, distributed to managers to use at the Valley Stream Store, see Sec. Ex. 11 

(November 7, 2008 e-mail from S. D’Amico to S. Sooknanan, J. Blair and others, 

attaching plan), included a handful of safety measures. The list included using caution 

tape or cones to “control the line,” maintaining “clearance” space in front of the entrance 

door, and having employees “walk the line outside” to instruct customers to walk slowly. 

Sec. Ex. 2 at 1 (#9: “Caution Tape/Cones to be used to control the line.” #10: “10 Feet of 

clearance from front door to where the cones/barricades will be set up.” #11: “One APA 

and One additional associate to walk the line outside encouraging everyone to walk 

slowly and carefully.”); see also Tr. at 223:18-22 (D’Amico: ten foot clearance was 

buffer or safe area to have access to open doors and communicate with crowd). These 

items demonstrate the knowledge of Wal-Mart’s management of hazardous conditions 

and that crowd management measures were necessary to “control” the crowd – by 

demarcating the line outside, creating a “buffer” zone to allow the store to safely open the 

doors, and communicating with the crowd outside. Unfortunately, the Valley Stream 

74 
Store did not implement effective crowd management measures or establish a 

comprehensive crowd management plan prior to 2009. See infra Section IV (discussing 

feasible crowd management plan and measures, as implemented by Respondent in 2009). 

The map of the Valley Stream Store created by Mr. Sooknanan to hand out to 

customers on Blitz Day in 2006 or 2007 also demonstrates the knowledge of Wal-Mart’s 

management that customers running into the store and customers entering the store before 

the doors were completely open posed hazards to associates. Facts ¶ 14; see also Sec. Ex. 

69 at 1 (“Please wait for doors to be completely open before entering.”); Tr. at 989:25-

990:2, 1030:14-1031:5; Sec. Ex. 152 at 105:9-18, 106:19–107:9 (Sooknanan included 

instruction to customers to wait until doors were completely open “because he knew the 

doors were broken the year before and he wanted to make sure that similar issues did not 

happen again”). 

Additional Wal-Mart documents illustrate Respondent’s knowledge of increased 

customer traffic and expectation of larger crowds during Blitz Days, especially in the 

front end of the store during peak times on Blitz morning. See Sec. Ex. 1 (Holiday Best 

Practices for Asset Protection 2008) at 1 (Staffing: “Store that have Asset Protection 

Associates should utilize these Associates to assist Customers in key areas of the store 

that are anticipated to attract the most Customers during peak times of the day.” and 

Customer Flow: “Managers should be involved in scheduling, security, and Customer 

flow of the Front-end as these will be critical during this time.”); Sec. Ex. 4 (2008 

Holiday Security) at 2 (Blitz Day: “APAs, APCs, and other designated associates should 

be staffed at the front end during key hours of Blitz (5am-11am)....”); Sec. Ex. 5 

(Excerpt from Safety Playbook FY09: Holiday Safety Strategy 4th Quarter) at 4 

75 
(“increased traffic during early morning hours”); Sec. Ex. 72 (Valley Stream Blitz Plans 

2007) at 2 (“stage all empty shopping carts to prepare for customer RUSH”). Wal-Mart 

did not merely expect larger crowds on Blitz Day morning – it actively attracted these 

crowds for a limited supply of deeply discounted sales items offered during a limited time 

period (i.e., 5:00 a.m. to 11:00 a.m. on Blitz Day). Facts ¶ 13. In fact, in response to its 

2008 Blitz Day advertisement/flier, Respondent expected a greater number of customers 

than normal on Blitz Day 2008. Facts ¶ 23. 

Furthermore, numerous Wal-Mart documents show Respondent’s knowledge 

regarding the location, type and timing of Blitz Day injuries resulting from increased 

customer traffic and larger crowds. See, e.g., Sec. Ex. 10 (October 31, 2008 e-mail from 

D. McHale to S. D’Amico and others) at 1 (“The holiday season is a peak timeframe for 

Big 3 accidents due to the increased customer traffic and freight flow.”); Sec. Ex. 2 

(Black Friday Market 45 Action Plan 2008) at 1 (#20: “Have extra accident folders made 

up and ready for immediate use.”); see also, Sec. Ex. 148 at 195:7-21 (in discussing a 

large sales event, Respondent acknowledged that “the period before the store opens and 

the moment the door unlocks is a critical time with regard to crowd control for the 

store...”). According to Respondent’s own documents, “the largest occurrence of 

customer accidents happen during the first hour of Blitz (5am to 6am),” and “36% of total 

claims are directly related to crowd control.” Facts ¶ 20; see also Sec. Ex. 10 at 1 (noting 

that Wal-Mart’s goal of an “accident free Blitz Day” encompasses “all accidents, 

associate and customer”). Another Wal-Mart document, distributed via e-mail by the 

Home Office, contained details about injuries from Blitz Day 2007, including that 5am 

was the peak time for incidents, 43% of which were classified as S/T/F (slip/trip/fall) and 

76 
13% of which were classified as “Struck By Another.” Facts ¶ 11. These documents 

highlight that Respondent knew of the potential hazards posed by the large crowds it 

attracted to its stores for Blitz Days. Specifically, Respondent knew that these hazards 

were greatest at or around the time of the store opening, were often directly related to 

crowd control, and included “struck by” hazards in particular. 

C. The Valley Stream Store’s Flawed Safety “Precautions” For Blitz Day 

2008 Demonstrate That Wal-Mart Recognized Crowd-Related 

Hazards.38

In addition to the evidence demonstrating that Wal-Mart was aware that crowdrelated hazards were present at Blitz Day openings, Wal-Mart took specific “precautions” 

at the 2008 Blitz Day Event at the Valley Stream Store. While these steps were patently 

inadequate and ineffective in protecting its employees, they further evidence Wal-Mart’s 

recognition of the cited hazards. Presented in conjunction with other evidence, such 

“precautions” establish recognition of the hazard.39 

 

38 The Secretary does not concede that any of the measures discussed herein were 

actually preplanned and utilized by Respondent for the purposes of crowd management. 

Such flawed, ad hoc “precautions” simply support Respondent’s recognition of the 

crowd-related hazards. To the extent that Respondent has not abandoned its affirmative 

defense that it implemented reasonable precautions to ensure employee safety for its 2008 

Blitz Day Event, the Secretary briefly addresses Respondent’s failure to support such a 

defense below, see infra Section VI. 

39 Beverly Enterprises, Inc., 19 BNA OSHC at 1190 (safety precautions taken by an 

employer can be used to establish hazard recognition in conjunction with other evidence); 

Pepperidge Farm, Inc., 1997 WL 212599, at *41; Waldon Health Care Center, 16 BNA 

OSHC at 1061-62; Puffer’s Hardware, Inc., 742 F.2d at 18 (finding that employer’s 

elevator presented “recognized” hazard under general duty clause; evidence that 

employees had been told to be careful in using elevator, had been instructed in proper 

operation of elevator, had been told to keep their bodies outside of elevator shaft when 

waiting for the elevator, and had been told to call elevator service company in event 

elevator safety problems arose); Ulysses Irrigation Pipe Co., 11 BNA OSHC at 1275 

(instruction not to use unlighted, unprotected tractor at night goes toward recognition of 

hazard of unlit, obstacle-filled pipe storage yard); Mercer Well Serv., Inc., 1977 WL 

77 
As exemplified by certain ad hoc measures, Respondent knew, based on prior 

incidents at the Store, of the hazards presented by crowd pressure and pushing on the 

doors. For example, the Store set up barricades outside in an attempt to keep the 

anticipated crowd farther away from the entrance doors than in prior years. See Sec. Ex. 

145 at 21:3-16, 143:16-144:6, 147:21-148:4; see also Facts ¶¶ 26-27. In addition, 

managers specifically and purposefully instructed and placed employees in a wedge 

formation between the outside of the vestibule and the oncoming customers in an attempt 

to create a buffer zone by the entrance. See Facts ¶¶ 32 & 35. Respondent’s minimal 

and ineffective efforts to keep the crowd away from the door in 2008 – through the use of 

the inappropriate barricades and the dangerous “wedge” attempt – support its recognition 

of the crowd-related hazards to its employees. 

Aware of the hazards posed to employees, managers further provided employees 

with the futile instruction to “step to the side” to avoid crowds entering the Store. Facts 

¶¶ 28, 33, 34 & 36; see also Sec. Exs. 143a, 143b, 31c and 31g (video footage showing 

overview of vestibule and lack of space to “step to the side.”). Similarly, despite 

Respondent’s awareness of the hazards of employees being struck by or asphyxiated by 

doors, glass or customers, managers specifically tasked employees with applying 

counterforce on the entrance doors against the mounting crowd pressure to attempt to 

prevent the doors from being knocked off or falling inward. Facts ¶ 37. Indeed, this 

reckless “precaution” exposed employees to even greater risk of the cited hazards. 

 

7758, at *1 (employer’s own safety rule requiring derrick men to wear a safety belt while 

riding elevators established it had actual knowledge that riding elevator without 

protection of safety belt was hazardous); Ted Wilkerson Inc., 9 BNA OSHC at 2016 

(employer’s work rule evidences recognition of hazard under general duty clause). See

also The Timken Co., 2003 WL 1889150, at *6-*8. 

78 
In light of Respondent’s knowledge of prior crowd-related incidents in the 

vestibule during the opening at the Store, these unreasonable and ineffective 

“precautions” nevertheless demonstrate its recognition of the hazards – and highlight the 

grossly inadequate measures taken to reduce the dangers to employees who were 

instructed to stand directly in the stream of the rushing crowd. 

III. THE HAZARDS FACED BY WAL-MART’S EMPLOYEES WERE 

LIKELY TO CAUSE SERIOUS HARM OR DEATH.40

The general duty clause imposes upon an employer the duty to take reasonable 

precautionary steps to protect his employees from reasonably foreseeable recognized 

hazards that are likely to cause death or serious physical injury.41 The criteria for 

determining whether a hazard is “causing or likely to cause death or serious physical 

harm” is not the likelihood of an accident or injury, but whether, if an accident occurs, 

the results are likely to cause death or serious physical harm.42 Indeed, “the Act is 

intended to protect against ‘possible hazards’ and ‘potential danger.’”43 Importantly, 

“[t]he Secretary need not show any actual injury to prove a §5(a)(1) violation.”44 

 

40 A violation is deemed serious if, in the event of an accident, there is a “substantial 

probability that the result would be death or serious physical harm.” Tree of Life d/b/a 

Gourmet Award Foods, NE Div., 19 BNA OSHC 1535, 1537, 2001 WL 1154451 (Rev. 

Comm. 2001). Further, Commission precedent has held that all 5(a)(1) violations are, by 

definition, “serious” inasmuch as the Secretary must establish as part of her prima facie

case the existence of a recognized hazard likely to cause death or serious physical harm. 

The News Press, 21 BNA OSHC at 2216. 

41 Empire-Detroit Steel Div., Detroit Steel Corp., 579 F.2d 378, 384 (6th Cir. 1978). 

42 Waldon Health Care Center, 16 BNA OSHC at 1060; Kaiser Aluminum & Chem. Co., 

10 BNA OSHC 1893, 1897, 1982 WL 22713 (Rev. Comm. 1982). 

43 Marquette Cement Mfg. Co., 568 F.2d at 910 (internal citations omitted). 

44 Marquette Cement Mfg. Co., 568 F.2d at 910. 

79 
Accordingly, “[t]he Act does not wait for an employee to die or become injured. It 

authorizes the promulgation of health and safety standards and the issuance of citations in 

the hope that these will act to prevent deaths and injuries from ever occurring.”45

As such, the existence of a hazard under the general duty clause is established if a 

hazardous incident can occur under other than a freakish or utterly implausible 

concurrence of circumstances.46 The appropriate inquiry is the foreseeability of the 

general hazard, not the foreseeability of the incident as it actually occurred.47 Notably, 

however, “although the fact of an accident may not be sufficient to prove the likelihood 

of an injury, it is at least prima facie evidence of a likelihood and the rest may be 

supplied by common sense or an understanding of physical law.”48 

Although Mr. Damour’s death on November 28, 2008 was the first time an 

employee died during a crowd rush at Respondent’s Blitz Day events, the likelihood of 

death and/or serious harm had been present during Wal-Mart’s events and was not a 

freakish or utterly implausible concurrence of circumstances.49 In fact, the record is 

replete with evidence of employees’ and customers’ experiences of the hazards, including 

 

45 Whirlpool Corp. v. Marshall, 445 U.S. 1, 12 (1980); see also Mineral Indus. & Heavy 

Constr. Group, 639 F.2d at 1294. 

46 See Waldon Health Care Center, 16 BNA OSHC at 1061; Titanium Metals Corp., 579 

F.2d 536, 541 (9th Cir. 1978); Nat’l Realty & Constr. Co., Inc., 489 F.2d at 1265 n.33. 

Accord Royal Logging Co., 645 F.2d 822, 829 (9th Cir. 1981); Illinois Power Co., 632 

F.2d 25, 29 (7th Cir. 1980); Dorey Elec. Co., 553 F.2d 357, 358 (4th Cir. 1977). 

47 Marquette Cement Mfg. Co., 568 F.2d at 910. 

48 Illinois Power Co., 632 F.2d at 28. 

49 See Waldon Health Care Center, 16 BNA OSHC at 1061; Titanium Metals Corp., 579 

F.2d at 541; Nat’l Realty & Constr. Co., Inc., 489 F.2d at 1265 n.33. Accord Royal 

Logging Co., 645 F.2d at 829; Illinois Power Co., 632 F.2d at 28; Dorey Elec. Co., 553 

F.2d at 358. 

80 
actual harm ranging from injuries to the tragic death of Store employee Damour. Most 

tragically, Mr. Damour was positioned in the vestibule where he was hit on the head by 

the falling door. Facts ¶ 49. After he was knocked to the ground, he was trampled on by 

the crowd, and eventually died.50 Facts ¶¶ 41, 43-44, 47, 49 & 51. Other employees 

faced the same serious danger. For example, Store employee Fitch was positioned 

outside in front of the vestibule doors where he too was knocked down. Facts ¶ 39. 

While Mr. Fitch was on the ground, he was repeatedly stomped on. Facts ¶ 39. When he 

was finally able to get himself upright, he testified that he had difficulty breathing due to 

the cited hazards. Facts ¶ 39. Store employee Rice was stationed in the vestibule where 

he too was pushed by the crowd. Facts ¶ 41. Mr. Rice was also pinned up against the 

vending machines by the incoming mass of people. Id. Likewise, Store employee 

D’Amico was pushed up against the vending machines. Facts ¶ 42. Store employee 

Calhoun was positioned in the vestibule and was assigned to hold up the front door and 

keep it from falling in. Facts ¶ 43. Mr. Calhoun’s attempt was unsuccessful, however, 

and the door was eventually knocked off by the incoming crowd. Facts ¶ 43. He was so 

affected by the events that he was forced to miss several days of work after 2008 Blitz 

Day. Facts ¶ 43. 

As detailed above, the events of the 2008 Blitz Day were not an unusual or 

isolated series of events for Respondent. The evidence is further supported by the fact 

that employees and customers reported injuries in prior Blitz Days both at the Store and 

around the country. See supra Section II.A; see also Facts ¶¶ 15-18 (at the Store’s 2005 

Blitz Day Event, customers broke doors completely off including the motor; at the 

 

50 While the cause of Mr. Damour’s death is not at issue here, the serious hazardous 

conditions to which he was exposed cannot be denied. 

81 
Store’s 2007 Blitz Day Event, customers got “too close for [Store Manager Sooknanan’s] 

comfort” and broke down the door, injuring at least one employee; various records from 

customers and employees from prior Blitz Day events around the country reporting 

injuries, being struck, knocked down, slammed, pinned, shoved, trampled and crushed). 

While fortunately no one died at Respondent’s prior Blitz Day Events, it does not make 

the fact that someone was killed on Blitz Day 2008, as opposed to merely injured as in 

previous events, utterly implausible.51 The evidence clearly demonstrates that the 

hazards presented could eventuate in serious harm under circumstances that were neither 

freakish nor utterly implausible. 

Moreover, as stated in Illinois Power Co., “although the fact of an accident may 

not be sufficient to prove the likelihood of an injury, it is at least prima facie evidence of 

a likelihood and the rest may be supplied by common sense or an understanding of 

physical law.”52 Here, in addition to the numerous reports of injuries, common sense and 

an understanding of physical law cannot refute that untrained employees stationed in 

confined and close proximity to a glass doorway, facing an impending onslaught of 

thousands of people on the other side, were in a dangerous situation wherein they were 

exposed to or experienced the struck by and asphyxiation hazards, and thus were subject 

to the risk of serious physical harm or death. 

 

51 See Kelly Springfield Tire Co., 1982 WL 917447, *4 (Rev. Comm. 1982), aff’d, 729 

F.2d 317 (5th Cir. 1984) (“it is the hazard, not the specific incident that resulted in injury 

... that is the relevant consideration in determining the existence of a recognized hazard”); 

Beverly Enterprises, Inc., 2000 WL 34012177, at *31. 

52 Illinois Power Co., 632 F.2d at 29. 

82 
IV. WAL-MART COULD HAVE MATERIALLY REDUCED THE HAZARDS 

TO ITS EMPLOYEES BY USING PRACTICAL, FEASIBLE CROWD 

MANAGEMENT MEASURES. 

In order to establish that feasible means existed to eliminate or materially reduce 

the recognized hazard, the Secretary must demonstrate both that the abatement measures 

are economically and technologically capable of being put into effect, and that they 

would be effective in materially reducing the incidence of the cited hazard.53 

The required showing to establish feasibility of abatement was described by the 

D.C. Circuit as follows: 

Though resistant to precise definition, the criterion of preventability 

draws content from the informed judgment of safety experts. Hazardous 

conduct is not preventable if it is so idiosyncratic and implausible in 

motive or means that conscientious experts, familiar with the industry, 

would not take it into account in prescribing a safety program. Nor is 

misconduct preventable if its elimination would require methods of 

hiring, training, monitoring, or sanctioning workers which are either so 

untested or so expensive that safety experts would substantially concur 

in thinking the methods unfeasible. All preventable forms and instances 

of hazardous conduct must, however, be entirely excluded from the 

workplace...The record must additionally indicate that demonstrably 

feasible measures would have materially reduced the likelihood that 

such misconduct would have occurred.54 

Here, the Amended Citation lists the proposed abatement as: 

ABATEMENT NOTES: Among other methods, feasible and acceptable 

methods to correct this hazard include, but are not limited to: Special 

events anticipated to attract the public shall be preplanned by a person(s) 

qualified in crowd management. Effective crowd control procedures and 

techniques shall be implemented which may include, but are not limited 

to, maintaining queuing lines, metering, comprehensive barricade systems, 

etc. There shall be an adequate number of trained crowd managers and 

 

53 Beverly Enterprises, Inc., 19 BNA OSHC at 1190; Waldon Health Care Center, 16 

BNA OSHC at 1063. 

54 Nat’l Realty & Constr. Co., 489 F.2d at 1266-67 (footnote omitted); see also

Pepperidge Farm, Inc., 1997 WL 212599, at *43 (applying principle to all workplace 

hazards). 

83 
supervisors. There shall be effective signage and information awaiting 

customers and radios for employee communication in order to receive 

frequent updates and to timely provide information to customers. 

In order to materially reduce or eliminate the serious crowd-related hazards, WalMart could have used a number of crowd management techniques, including the ones it 

used in prior years at large sales events, or those proposed in the amended citation. As 

discussed in more detail below, developing and implementing a crowd management plan, 

providing crowd management training to employees interacting with crowds, and 

utilizing effective commonly used crowd management techniques, would have materially 

reduced or eliminated the cited hazards. Indeed, many of the measures implemented by 

Respondent for its 2009 day-after-Thanksgiving Day sales event, which were 

recommended by Respondent’s own crowd management expert consultants, coincide 

with the Secretary’s proposed abatement measures. Moreover, such measures did, in 

fact, materially reduce or eliminate the hazards in 2009. These very same measures 

existed as of November 28, 2008 and could have been implemented by Respondent for 

the 2008 Blitz Day Event. 

A. Wal-Mart Failed to Utilize Feasible Crowd Management and Crowd 

Control Measures That Were Available in 2008. 

“Feasible” measures are economically and technologically capable of being put into 

effect.55 In particular, feasible measures include those precautions that are recognized by 

“knowledgeable persons familiar with the industry as necessary and valuable steps for a 

sound safety program in the particular circumstances existing at the employer’s 

 

55 Beverly Enterprises, Inc., 19 BNA OSHC at 1190 (citing Baroid Div. of NL Indus., 

Inc., 660 F.2d 439, 447 (10th Cir. 1981)). 

84 
worksite.”56 Further, the Commission has held that where a hazard could not necessarily 

be abated with a single measure, it was permissible for the Secretary to “require the 

employer to engage in a ‘process approach’ to determine what action or combination of 

actions will eliminate or materially reduce the hazard.”57 

Here, the Secretary proposed various abatement measures, including providing 

crowd management training to employees interacting with crowds and utilizing effective 

commonly used crowd management techniques in planning and executing a crowd 

management plan. As described below, the record in this case establishes that similar 

approaches have been available and used successfully, both elsewhere and within WalMart stores at other large sales events. 

First, the Secretary has set forth unrebutted evidence that the measures proposed by 

the Secretary have been available and constitute feasible core components of effective 

crowd management and safety plans. For example, Paul Wertheimer, a crowd safety 

consultant admitted as an expert with respect to crowd management and crowd control 

practices, identified a list of more than 50 crowd management services providers that 

were available sources for crowd safety consultation prior to the 2008 Blitz Day Event. 

Tr. at 360:5-361:12 (discussing Sec. Ex. 45 (IAAM directory of companies)). Indeed, 

Respondent acknowledged that the various crowd management experts who it considered 

and consulted in advance of its 2009 Blitz Day Event were providing crowd safety advice 

 

56 Austin Bridge & Road, L.P., 21 BNA OSHC 1815, 2006 WL 2781631, *4 (Rev. 

Comm. 2006) (citing Cerro Metal Prods. Div., Marmon Group, Inc., 12 BNA OSHC 

1821, 1986 WL 53467 (Rev. Comm. 1986)); see also Con Agra, Inc., 11 BNA OSHC 

1141, 1144, 1983 WL 23849 (Rev. Comm. 1983). 

 

57 Beverly Enterprises, Inc., 19 BNA OSHC at 1190 (citing Pepperidge Farm, Inc., 17 

BNA OSHC 1993)). 

85 
for over 20 years prior to the 2008 Blitz Day Event. Sec. Ex. 148 at 231:23-232:10 

(testimony explaining that the safety experts consulted by Respondent were “very highly 

regarded” for having managed crowds at large events for over 20 years). As detailed 

below, these crowd safety consultants provided advice regarding the appropriate use of 

crowd management and crowd control strategies and techniques. These measures were 

equally available prior to the 2008 Blitz Day Event as they were when Respondent finally 

sought them out in 2009. 

Second, various crowd management techniques, including the proposed abatement 

measures, have been successfully utilized in other retail settings and at Wal-Mart’s own 

sales events. Sec. Ex. 92 at 4 (noting that the proposed crowd management techniques 

“have long been used for a wide variety of public assembly events including those 

sponsored by retail establishments, such as Apple and Microsoft”); see also Sec. Ex. 70 

(Wal-Mart’s Harry Potter Playbook, 2007) at 1, 3 & 11 (Wal-Mart’s 2007 Harry Potter 

plan included proposed abatement measures such as queuing, positioning employees 

outside the store to provide information to the crowd, and the use of multi-colored wrist 

bands and tickets as a means to manage crowd safety.). For example, the iPhone launch 

in 2007 utilized numerous crowd management measures, including crowd metering 

where only a set number of people are allowed into a location at a time. Tr. at 430:14-

431:6, 432:18-433:13; see also Sec. Ex. 105. Other events, such as the release of the 

PlayStation 2, used different crowd management measures such as a tagging system, 

wherein a customer is given a pull tag that assures them of getting the sale product. Tr. at 

429:16-430:13. These crowd management measures were available, widely used, and 

86 
could have been implemented by Respondent in connection with its 2008 Blitz Day 

Event. 

Notably, Respondent has not disputed that any of the proposed abatement measures 

are technologically or economically feasible. Nor can it, as demonstrated by its own 

awareness and use of the proposed abatement measures at some of its events both prior 

and subsequent to the 2008 Blitz Day Event. Indeed, as unequivocally established by the 

record, in 2009, with the advice of paid crowd management experts at Landmark 

Consulting, Respondent preplanned, developed and implemented a written 

comprehensive crowd management plan for future Blitz Day events.58 See Facts ¶ 52. 

Putting such a management plan into writing is consistent with the Secretary’s proposed 

abatement measures. Tr. at 362:22-363:8. 

Wal-Mart’s crowd management Plan “is intended to provide crowd management 

strategies and tactics to store management and associates to assist them in planning and 

maintaining a safe store environment . . . .” Sec. Ex. 74 at 3. The Plan is consistent with 

the Secretary’s proposed abatement measures, and the measures identified by the 

Secretary’s expert as reasonable components of a crowd management plan. Compare

Sec. Ex. 74 with Compl. ¶ V and Sec. Ex. 92 at 10-11 (Reasonable and proposed 

abatement includes: the creation of a written crowd management plan, proper crowd 

management training of employees, a proper barrier system, queuing, signage, effective 

communication by employees with customers, the use of walkie-talkies, and a proactive 

 

58 To the extent that Respondent objects to any discussion of its subsequent remedial 

measures, the Secretary notes that it is well established that evidence of such subsequent 

measures taken to eliminate a violative condition are admissible and probative to 

demonstrate practicability and feasibility of such measures. See Fed. R. Evid. 407. 

87 
communication plan with local law enforcement – all of which are reflected in 

Respondent’s Plan.). 

The Plan, moreover, was actually implemented during the Store’s 2009 Blitz Day 

Event, with employees – for the first time – receiving crowd management training weeks 

prior to the 2009 Event, both in person and computer-based. Facts ¶ 55. Consistent with 

the Secretary’s proposed abatement measures, portions of this training address methods 

to identify and diffuse certain problematic crowd dynamics. Sec. Ex. 73 at 71-75. Also 

consistent with the proposed abatement measures, the Plan includes a chain of command 

for communication and action. Sec. Ex. 73 at 42-44. 

Moreover, the Store implemented numerous other crowd management measures 

at its 2009 Event, including: 

(1) Remaining open to customers for 24 hours prior to the sales time although 

sale items went on sale at 5:00 a.m. Facts ¶ 58. 

(2) Renting steel security barricades to form a serpentine queuing line to the 

entrance of the Store. Facts ¶ 58. 

(3) Hiring third-party crowd management personnel to interact with customers 

outside the store. Facts ¶ 59. 

(4) Positioning Store associates to communicate with customers outside the 

store. Facts ¶ 59. These employees wore wearing yellow vests such that the crowd could 

easily identify them as Wal-Mart personnel. Id. 

(5) Providing bullhorns to several associates to make announcements to the 

crowd. Facts ¶ 60. 

88 
(6) Positioning associates and security personnel upon elevated viewing 

stands outside the Store to maintain an unobstructed view of the crowd to quickly identify 

any issues. Facts ¶ 60. 

(7) Utilizing a metering technique such that an equal number of customers 

were permitted to enter the Store as the number of customers who left the Store. Facts ¶ 

60. 

(8) Permitting customers to wait in queuing lines located throughout different 

areas inside the Store and implementing an in-store ticketing system. Facts ¶ 61. 

Further, as evidenced by prior events, the consideration and institution of such 

measures was entirely feasible and was not an unprecedented step for Respondent. 

Indeed, the year prior to the 2008 Blitz Day Event, Respondent implemented such an 

approach with respect to the widely anticipated release of a new Harry Potter book. Facts 

¶ 22. In particular, in connection with the 2007 book release, which was expected to 

attract large crowds, Respondent developed a detailed playbook to address safety 

concerns and crowd management for its nationwide special sales event. Id.

This detailed Harry Potter playbook was developed by the Home Office and 

distributed to store managers across the country via the WIRE. Sec. Ex. 148 at 185:21-

186:9, 209:2-5. Respondent concedes that “the period before the store opens and the 

moment the door unlocks is a critical time with regard to crowd control for the store and 

is highlighted in the best practices for the store’s management.” Sec. Ex. 148 at 195:7-

21. Accordingly, the best practices for the 2007 Harry Potter special sales event included 

crowd management techniques such as queuing, positioning employees outside the store 

to provide information to the crowd, and the use of multi-colored wrist bands and tickets 

89 
as a means to manage crowd safety. Facts ¶ 22. Indeed, Valley Stream Store Manager 

Mr. Sooknanan admitted that he was familiar with Wal-Mart’s use of certain crowd 

management techniques, such as ticketing, at other stores prior to the 2008 Blitz Day 

Event. Tr. at 1064:8-25. 

All of the crowd management measures included in the Secretary’s proposed 

abatement measures were available and reasonably could have been implemented by 

Respondent in preparing for its 2008 Blitz Day Event. Respondent could have developed 

a crowd management plan that utilized these measures in 2008, just as it did for the 2009 

Blitz Day Event and the 2007 Harry Potter book release. 

B. Wal-Mart Failed to Utilize Feasible Crowd Management and Crowd 

Control Measures That Would Have Materially Reduced the Hazards 

to Employees. 

As part of establishing feasibility of the abatement measures, the Secretary must 

also demonstrate that the proposed abatement measures would materially reduce the cited 

hazard.59 “[T]he Secretary need only show that the abatement method would materially 

reduce the hazard, not that it would eliminate the hazard. The Secretary is therefore not 

required to show that the abatement method’s absence was the sole likely cause of the 

serious physical harm.”60 

As discussed above, the Secretary’s expert, as well as Wal-Mart’s own 2009 

documents and actions, demonstrated that the proposed abatement measures are 

“necessary and valuable steps for a sound safety program in the particular circumstances 

 

59 Morrison-Knudsen Co., Inc., 16 BNA OSHC 1105, 1122, 1993 WL 127946 (Rev. 

Comm. 1993). 

60 Morrison-Knudsen Co., Inc., 16 BNA OSHC at 1122 (emphasis in original). 

90 
existing at the employer’s worksite.”61 In particular, Mr. Wertheimer’s unrebutted 

testimony established that the implementation of the proposed abatement measures would 

serve to reduce the recognized struck by and asphyxiation hazards. Tr. at 396:25-397:13. 

For example, having a written crowd management plan for an event provides a 

“framework upon which to identify and abate risks and identify crowd safety techniques 

and management procedures that could have reasonably ensured the safety of 

employees.” Sec. Ex. 92 at 8. Maintaining such a plan in writing, furthermore, decreases 

the possibility of miscommunication regarding duties, responsibilities and scheduling. 

Id. Additionally, planning and executing a crowd management plan by those trained in 

crowd safety is another effective abatement measure; professionals and individuals 

properly trained in crowd management can understand the concepts, principles and 

techniques included in the strategy and thus are well positioned to execute the crowd 

management plan. Tr. at 400:23-401:7. Moreover, properly training employees who are 

delegated to perform particular crowd management or crowd control tasks would further 

enhance overall safety; employees lacking training in crowd management and crowd 

control would be not be in the position to assume duties in areas beyond their training and 

capabilities. Tr. at 401:25-402:7; Sec. Ex. 92 at 8. Such methods help disseminate 

information and keep the event organized, creating less opportunity for hazardous 

conditions. Id. 

Further, Wal-Mart’s own 2009 Event planning documents and actions 

demonstrate that the proposed abatement measures were feasible and would reduce 

crowd-related hazards. As detailed above, many of the recommended and proposed 

 

61 Austin Bridge & Road, L.P., 2006 WL 2781631, at *4. 

91 
abatement measures were implemented by Respondent in 2009. Indeed, as Respondent 

admits, the crowd management techniques that are incorporated in Respondent’s own 

2009 Plan – many of which overlap with the proposed abatement measures – are “proven

crowd management strategies and tactics” to create and enhance a “safe environment.” 

Sec. Ex. 73 at 10. According to the Secretary’s expert, and unrebutted by Respondent, 

measures similar to those taken by Respondent in 2009 help to safely manage and process 

a crowd into a facility. Tr. at 410:19-25. For example, equipping employees with 

uniforms and/or amplification devices allows the crowd to identify and recognize those 

individuals who are responsible for the event and who can provide information, and 

provides employees with an audible and effective means of communication. Tr. at 

418:18-419:4; see also Sec. Ex. 92 at 10 (explaining how the utilization of techniques 

such as an amplification device for communication allows employees the “opportunity to 

convey sensitive information to a large gathering quickly. This is a particularly valuable 

method when significant changes occur during an event or an emergency situation 

develops.”). Likewise, positioning employees on elevated perches above the crowd – as 

Respondent also did in 2009 – allows for a more unobstructed view over the crowd and 

enables the employee to identify and address any unfavorable crowd dynamics that may 

develop. Tr. at 416:3-16. Additionally, measures such as keeping the Store open for the 

24 hours prior to the sales event reduces the need for large crowds to gather and wait 

before the event, and mitigates the build-up of crowd pressure. Tr. at 403:10-24. 

The reduction in hazards by utilization of crowd management techniques, 

including many of the proposed abatement measures, is perhaps most starkly 

demonstrated by the contrasting video evidence in this case. Whereas the disorganized 

92 
and hazardous conditions of the 2008 Blitz Day Event culminated in the tragic loss of 

employee Damour’s life, the 2009 Blitz Day Event operated in a significantly more 

organized and safe manner and Wal-Mart employees at the Store were not exposed to the 

same crowd-related hazards. Compare Sec. Exs. 35a & 35b with Sec. Ex. 95L. In 

particular, customers were not pushing, people did not fall, and the doors did not break or 

come off the hinges, as had occurred in prior years. Facts ¶ 62. 

It is clear that the abatement measures proposed in the amended citation were the 

very measures Wal-Mart successfully implemented in 2009 to reduce the cited hazards 

posed to its employees. Wal-Mart cannot credibly claim that after retaining independent 

crowd management consultants, the plan that its consultants created, which is now being 

implemented at its 4,200 stores throughout the United States, is ineffective or infeasible. 

V. THE SECRETARY’S $7,000 PROPOSED PENALTY IS REASONABLE IN 

LIGHT OF THE SERIOUS HAZARDS PRESENTED TO WAL-MART’S 

EMPLOYEES. 

The Secretary’s proposed penalty of $7,000, the statutory maximum for a serious 

violation of the Act, is appropriate in light of the gravity of the violation and the statutory 

criteria.62 Following a review of all materials in the case file, including interviews, 

statements, videotapes and other documents, OSHA Long Island Area Director Anthony 

Ciuffo determined the high gravity penalty based on his assessment of the severity and 

probability of the violation. Tr. at 660:7-11, 661:24-662:3, 662:21-663:10. “The gravity 

of a particular violation depends upon such matters as the number of employees exposed, 

the duration of the exposure, the precautions taken against injury, and the likelihood that 

 

62 See Valdak Corp., 17 BNA OSHC 1135, 1995 WL 139505, *4 (Rev. Comm. 1995), 

aff’d, 73 F.3d 1466 (8th Cir. 1996) (gravity is “primary element” in penalty assessment); 

see also Tr. at 663:2-10. 

93 
any injury would result.” 63 Mr. Ciuffo classified the violation as high severity and 

higher probability because of the nature of the cited hazards, the exposure of the 

employees and the time the employees were exposed. Tr. at 660:17-25, 662:7-17. No 

adjustments were made to the proposed penalty. Tr. at 663:2-12. As a result, Mr. Ciuffo, 

on behalf of the Secretary, proposed the $7,000 penalty, which is the maximum allowed 

VI. 

by the Act. 

RESPONDENT’S AFFIRMATIVE DEFENSES ARE MERITLESS.64 

None of Respondent’s affirmative defenses have merit. Respondent has not 

produced any evidence to support its asserted defenses of inconsistent or selective 

enforcement by OSHA, that abatement would be infeasible or present a greater hazard to 

employees, or that the citation presents an issue of workplace violence. Further, 

Respondent’s asserted defenses regarding fair notice and absence of consensus standards 

are misplaced because the Secretary has established Respondent’s actual knowledge of 

the cited hazards. See also App. A § VIII.E (citing relevant caselaw). 

Respondent’s asserted defense that the Secretary’s amendment of the citation in 

the Complaint was time-barred was the subject of extensive motion practice and was 

rejected (twice) by Chief Judge Sommer. See Chief Judge Sommer’s Orders of October 

15, 2009 and September 1, 2009; see also App. A § VIII.E. These orders are the law of 

the case and as such this defense is not valid. Wal-Mart’s suggestion that the citation was 

improperly amended finds no support in the OSH Act, the Secretary’s regulations, or 

 

63 Valdak Corp., 1995 WL 139505, at *4 (citing J.A. Jones Constr. Co., 15 BNA OSHC 

2201, 1993 WL 61950 (Rev. Comm. 1993)). 

64 Respondent bears the burden of proving its affirmative defenses. The Secretary 

reserves her right to respond in full, in her Reply Brief, to any affirmative defenses 

argued by Respondent in its opening brief. 

94 
Commission caselaw. The Secretary may amend the citation at the pleadings stage – and 

the Secretary’s actions may be implemented by her agents, whether in OSHA or the 

Solicitor’s Office. See, e.g., Secretary’s Order 05-2007, 72 Fed. Reg. 31160-01 (June 5, 

2007) at § 4.C (Pursuant to the Secretary’s Order 05-2007 regarding the delegation of 

authority and assignment of responsibility to the Assistant Secretary for Occupational 

Safety and Health, all matters of legal representation are delegated exclusively to the 

Solicito

ra in Section II.B, Respondent’s own documents 

contain

r of Labor.). 

Moreover, Respondent’s asserted defense that the amended citation is 

unconstitutionally vague lacks merit. Struck by and asphyxiation are well known 

hazards, the terms referenced in the citation are understood by individuals trained in 

crowd management and, as detailed sup

 references to “crowd control.” 

Finally, Respondent’s asserted defense that it took reasonable precautions to 

protect its employees from the cited hazards flies in the face of the evidence presented in 

this matter, and Respondent has not produced sufficient facts to support it. On the 

contrary, the evidence demonstrates that the minimal steps taken by Respondent at its 

Valley Stream Store did not constitute adequate or effective precautions by any measure, 

given the magnitude of the known hazards. See, e.g., Facts ¶ 23 (Market 45 “game plan” 

was designed by someone with no experience in crowd management and crowd control, 

and was not a crowd management plan); Facts ¶ 25 (additional hired personnel were not 

hired or trained for crowd management and crowd control duties); Facts ¶ 27 (use of 

eight plastic hollow construction barricades was inadequate to manage the expected 

crowds, and barricades were set up by individuals with no training in crowd 

95 
management); Facts ¶ 28 (managers provided employees with the meaningless instruction 

to “step to the side” to avoid crowds entering the Store); Facts ¶¶ 32 & 35 (formation of 

wedge to move back the crowd was attempted by employees with no training in crowd 

management); Facts ¶ 33 (token few employees who purportedly “walked the line” did 

not do so in any methodical or meaningful way or for any significant length of time); and 

Facts ¶ 37 (employees tasked with applying counterforce on the doors against the 

mounting crowd pressure had no training in crowd management). 

In the face of known hazards, Respondent’s glaring inactions are equally 

indefensible. See, e.g., Facts ¶ 22 (Respondent had no comprehensive crowd 

management plan); Facts ¶ 28 (other than plastic hollow barricades, Respondent utilized 

no other available crowd management techniques – such as ticketing, caution tape, 

metering or communication devices); and Facts ¶ 29 (employees were given no training 

in crowd management or crowd control). 

Indeed, the unreasonableness and inadequacy of Respondent’s “precautions” 

stand in stark contrast to the measures it implemented for the 2009 Blitz Day Event. 

Compare Facts ¶ 27 (use of plastic hollow construction barricades in a simple Lformation in 2008) with Facts ¶ 58 (use of steel security barricades in a serpentine 

queuing formation in 2009); compare Facts ¶ 29 (employees were given no training in 

crowd management or crowd control in 2008) with Facts ¶ 55 (all employees received 

extensive crowd management training weeks prior to the 2009 Event, both in person and 

computer-based); compare Facts ¶ 22 (Respondent had no comprehensive crowd 

management plan in 2008) with Facts ¶¶ 52-54 (with the assistance of professional crowd 

management experts, Respondent developed and implemented a comprehensive written 

96 
crowd management plan for the 2009 Event); compare Facts ¶ 25 (additional hired 

personnel were not hired or trained for crowd management and crowd control duties in 

2008) with Facts ¶ 59 (uniformed and trained third-party crowd management personnel 

were hired to monitor and interact with customers outside the Store in 2009); and 

compare Facts ¶ 28 (concerned with crowds based on prior years, other than a few plastic 

hollow barricades, Respondent utilized no other available crowd management techniques 

such as ticketing, caution tape or metering in 2008) with Facts ¶ 60 (in 2009, Store 

provided bullhorns to employees to assist with communications, and utilized metering) 

and Facts ¶ 61 (in 2009, customers waiting in queuing areas received tickets indicating 

whether they would receive the desired sale item). 

97 
CONCLUSION

Wal-Mart violated the Act by failing to provide a workplace free from recognized 

crowd-related hazards. Respondent had actual knowledge that its employees faced 

serious dangers at Blitz Day Events and failed to adequately protect them. Therefore, the 

amended citation and proposed penalty should be affirmed as issued. 

DATED: October 26, 2010 

New York, New York 

 M. PATRICIA SMITH 

 Solicitor of Labor 

 PATRICIA M. RODENHAUSEN 

 Regional Solicitor 

 

 BY: /s/ Sudwiti Chanda_____________ 

 SUDWITI CHANDA 

 Attorney 

 /s/ Kathryn L. Stewart___________ 

 KATHRYN L. STEWART 

 Attorney 

 U.S. Department of Labor 

 Attorneys for HILDA L. SOLIS, 

 Secretary of Labor, Complainant 

POST OFFICE ADDRESS: 

Patricia M. Rodenhausen 

Regional Solicitor 

U.S. Department of Labor 

201 Varick Street, Room 983 

New York, New York 10014 

Tel. 646-264-3650, Fax 646-264-3660 

98 
99 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION

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HILDA L. SOLIS, Secretary of Labor, 

United States Department of Labor, 

 Complainant, 

 v. 

WAL-MART STORES INC., 

 Respondent. 

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OSHRC DOCKET 

No. 09-1013 

CERTIFICATE OF SERVICE

I certify that all parties have consented that all papers required to be served may 

be served and filed electronically. I further certify that on this 26th day of October, 2010, 

I caused a copy of the foregoing Secretary’s Post-Trial Brief to be sent by electronic 

submission to: 

Baruch A. Fellner 

bfellner@gibsondunn.com

Jason C. Schwartz 

jschwartz@gibsondunn.com 

Daniel P. Rathbun 

drathbun@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, NW 

Washington, DC 20036-5303 

BY:____/s/ Kathryn L. Stewart 

Kathryn L. Stewart 

stewart.kathryn@dol.gov 

U.S. Department of Labor 

Office of the Solicitor 

201 Varick Street, Room 983 

New York, NY 10014