State Ex Rel. Wal-Mart Stores, Inc. v. Kortum

Attorney Steve Smith of the firm Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder, and Hofmeister, P.C. (Van Steenberg) defended Wal-Mart Stores, Inc. (Wal-Mart) (plaintiff) in four personal-injury matters that all occurred at the Scottsbluff, Nebraska, Wal-Mart store. One case concerned plaintiff Pottorff, who injured herself when she slipped and fell on the store’s floor. During Smith’s representation of Wal-Mart in the Pottorff matter, Smith had access to the Wal-Mart property, staff, manuals, and other information. Around the same time as the Pottorff litigation, Debra Holden fell in the parking lot of the Scottsbluff Wal-Mart store and injured herself. Two years after the Pottorff matter concluded, Tylor Petitt (defendant) of Van Steenberg represented Holden against Wal-Mart. Holden and Pottorff both alleged negligence and failure to warn. Wal-Mart defended both cases on the grounds of contributory negligence and assumption of the risk. Wal-Mart filed a motion to disqualify Petitt from the Holden matter, and the trial court denied the motion. Wal-Mart sought a writ of mandamus instructing the trial court to vacate its order denying the motion. The Nebraska Supreme Court appointed a special master to compile recommended findings of fact and conclusions of law. The special master found that Smith received no confidential information during his representation of Wal-Mart. Nevertheless, the special master recommended that the supreme court issue the writ because the nexus between the Pottorff and Holden cases was too close to avoid the appearance of impropriety.