Posted by: Ted Schmidt, Dev Sethi, Matthew Schmidt and Burt Kinerk Evidence—No third party spoliation of evidence claim allowed
Lips v. Scottsdale Healthcare Corp., 563 Ariz. Adv. Rep. 10 (App. Div. I, August 25, 2009) (J. Thompson)
ARIZONA DOES NOT RECOGNIZE A CLAIM FOR SPOILATION OF EVIDENCE BY A FIRST OR THIRD PARTY TO THE LITIGATION
Plaintiff had a hip prosthesis implanted which subsequently failed. Upon removal of the broken prosthesis, the surgeon at the defendant hospital found the device in fragmented pieces. Despite plaintiff's request that the failed prosthesis and its pieces be preserved the hospital either lost or destroyed the evidence.
Plaintiff then sued the manufacturer alleging products liability theories and the hospital alleging third party spoliation of evidence. The defendant moved to dismiss pursuant to Rule 12 (b)(6) of the Rules of Civil Procedure—failure to state a claim upon which relief could be granted. The trial court granted the motion and entered judgment under rule 54 (b) allowing for an immediate appeal.
On appeal the Court of Appeals acknowledged that in La Raia v. Superior Court, 150 Ariz. 118, 722 P.2d 286 (1986) the Arizona Supreme Court held there was no first party claim (claim against the allegedly negligent defendant who caused injury to plaintiff) for spoliation of evidence. This is a case of first impression where the plaintiff seeks to hold a third party to the litigation liable for spoliation. In the first party scenario denying the plaintiff a right to recover for spoliation does not leave the plaintiff without remedy-- the plaintiff may still recover for the underlying tort against the spoilating party. In the third party situation there is no remedy other than spoliation as to the third party.
Nonetheless, the Court of Appeals refused to recognize a right to a claim of spoliation against the third party hospital. The court found a general public policy against expanding tort liability to include litigation related misconduct. The court felt a jury would likely be confused and render inconsistent results if faced with both this theory and the underlying tort theory. Finally the court stated it was speculative and unquantifiable as to what extent the plaintiff's claim against the first party was damaged by the spoliation.