Opinion
Civil Action No. 03-2646, Section T(2).
August 5, 2004
Before the Court is a Motion in Limine and Request for Sanctions (Doc. 61) filed on behalf of the defendants, Gerald Michael Lucas and Great Northern Insurance Company ("Lucas"). This matter was submitted for the Court's consideration with oral argument on April 28, 2004. The Court, having considered the arguments of the parties, the Court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
This matter arises out of an accident that occurred on April 3, 2004 for which the plaintiff began treatment with local physicians for pain in his neck, back, knees, and headaches. As his condition failed to improve, plaintiff sought the assessment and care of neurosurgeon, Dr. Kenneth Vogel who, on September 8, 2004, requested that plaintiff undergo further testing to determine the extent of his condition.
On September 16, 2004, plaintiff's counsel's secretary, Dinah, faxed Kim Olsen, the insurance adjuster to whom the matter was assigned, correspondence. The cover sheet stated, "Dr. Vogel has scheduled surgery for October 1, 2003 for Mr. Mitchell." The remaining four pages consist of the Petition for Damages and a Request for Notice. Within one week of receiving this fax, the defense counsel arranged an Independent Medical Examination ("IME") with Dr. Robert L. Mimeles, an orthopedic surgeon. On September 23, 2003, defense counsel confirmed with plaintiff's counsel's office that the IME was scheduled on September 29, 2003, as previously arranged in a telephone conversation with same.
On September 24, 2003, plaintiff was admitted to the hospital for a cervical myelogram and subsequently underwent surgery on September 25, 2003. Plaintiff's counsel informed counsel for the defendants on September 26, 2003. The defendants contends that the plaintiff chose to undergo surgery without first allowing them to obtain an IME, as previously agreed, and requests that evidence of the surgery should be excluded on the basis of spoliation of evidence or under the Court's inherent authority to sanction the parties their conduct.
II. LAW AND ANALYSIS OF THE COURT
The spoilation of evidence doctrine concerns the intentional destruction of relevant evidence. Menges v. Cliffs Drilling Company, 2000 WL 765082, *1 (E.D. La. 2000) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)). Before a court may exclude spoiled evidence, the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed. Id. at *2 (quoting Nation-Wide Check Corp. V. Forest Hills Distribs., 692 F.2d 214, 218 (1st Cir. 1982)). Once a court concludes that a party was obliged to preserve the evidence, it must then consider whether the evidence was intentionally destroyed and the likely contents of that evidence.
In Menges, the Court found that sanctions of exclusion and adverse instruction are not warranted absent intentional destruction of evidence. The Court set out the elements required to obtain sanctions for spoilation, which are as follows:
In the event relevant evidence is spoiled (i.e. intentionally destroyed), the trial court may exercise its discretion to impose sanctions on the responsible party . . . The seriousness of the sanctions that a court may impose depends on the consideration of: (1) The degree of fault of the party who altered or destroyed the evidence; (2) The degree of prejudice suffered by the opposing party; and (3) Whether there is a lesser sanction that will avoid substantial unfairness.Id.
This Court finds that the evidence was not intentionally destroyed. Former counsel for plaintiff contends, and this Court believes, that the misstatement on the fax was not a purposeful attempt to mislead the defendant, but rather an error made by Mr. Harvey's secretary, as another of Mr. Harvey's clients/Dr. Vogel's patients, Bruce Thomas, did have surgery on that date. Mr. Harvey, in a sworn affidavit, sets forth that he did not purposefully mislead the defendants, but rather insists that his office follows the usual practice which is to forward whatever information is available to the defendants regarding their clients' medical condition and testing. Although the defendant submits in his Memorandum in Support of Motion in Liminie and Request for Sanctions (Doc. 61) that the plaintiff intentionally destroyed the evidence by undergoing elective surgery before submitting to a previously scheduled IME, counsel for the defendant freely admitted in open court that he had no evidence, nor did he contend, that either plaintiff or plaintiff's former counsel intentionally destroyed or "spoiled" any evidence.
Secondly, this Court finds that the degree of prejudice to the defendant is limited, as Mr. Mitchell's condition before the time of the accident is will documented and preserved by ample medical records and depositions of his treating physicians. In addition, Mr. Mitchell underwent several objective tests, including the MRI's of his back, neck and knee, CT of his neck and Myelogram of his neck, which can be reviewed by a physician of the defendants' choosing. "While defendant will suffer some prejudice to the surgery, the Court finds that the prejudice will not be unfair because defendant has access to plaintiff's medical records from the examinations undertaken [prior to surgery]." Id.
While this Court finds that a error was made on the part of Mr. Harvey's office, the Court does not believe that this error rises to the level of intentional and willful destruction of evidence. Consequently, this Court does not find that the sanctions of exclusion or adverse instruction are warranted in the present case. This court will consider a cautionary jury charge on this issue if and when required.
Accordingly,
IT IS ORDERED that the Motion in Limine and for Sanctions (Doc. 61), filed on behalf of the Defendants, be, and the same is hereby DENIED.