Commercial Litigation and Arbitration

Back Surgery as Spoliation? — Maybe, But Not Where Defendant Was Alerted That Surgery Would Be Forthcoming & Failed to Schedule Adverse Medical Exam — No Intent to Deceive or Deprive Defendant of Evidence

Guzman v. Jones, 2015 U.S. App. LEXIS 18373 (5th Cir. Oct. 22, 2015):

Melvin Jones and Celadon Trucking Services appeal the district court's denial of their motion for new trial. They argue that the district court erred by admitting evidence of Jaime [*2]  Guzman's medical expenses and refusing to provide an adverse jury instruction in their favor based on spoliation of evidence after Guzman underwent back surgery prior to a requested medical examination. Because the district court did not abuse its discretion in admitting evidence of the medical bills and in refusing spoliation sanctions, we AFFIRM.


This law suit arises from a motor vehicle accident between a truck driven by Jones and owned by Celadon and another vehicle driven by Jaime Guzman. All parties agree that Jones was at fault for the accident and that Celadon is vicariously liable because the accident occurred in the scope of Jones' employment. A trial took place solely to determine the amount of damages. The jury returned an award of $1,314,000 to Guzman, of which $104,000 reflected past medical expenses. An additional $20,500 was awarded to co-plaintiff Derrick Lambert. Appellants do not contest that award.

During trial the district court allowed Guzman to present evidence of his medical bills. These bills showed the amounts charged to Guzman by his various medical providers. Although one bill indicates that Guzman may have been eligible for workers' compensation, no bill [*3]  shows any reduction in charges provided as part of insurance coverage. The parties agree that, at the time of the accident, Guzman was not actually a Medicaid participant and received no benefits from the program toward his medical expenses, nor did he receive any workers' compensation payments. Prior to trial, Appellants moved to exclude the bills, arguing that Guzman was eligible for Medicaid and workers' compensation based on his employment status and his income levels. The district court denied Appellants' motion.

During discovery, on May 9, 2011, Appellants sent Guzman's counsel an e-mail indicating that they wanted Guzman to undergo an independent medical examination1 to support Appellants' contention that his injuries were not a result of the accident. Guzman's counsel provided Appellants' counsel with a draft order agreeing to the examination. The draft order was unsigned and had blank spaces in which Appellants' counsel could enter the examining physician and date of examination. On May 27, Guzman disclosed to Appellants during his deposition that he intended to undergo back surgery. On June 21, Appellants' counsel sent Guzman's counsel a signed proposed order for an independent [*4]  medical examination. On June 23, Guzman scheduled his surgery, which then took place on June 27. On June 29, Guzman's counsel signed and returned the proposed order, which was never filed with the court. Guzman underwent the examination on July 26. Guzman's medical records, including scans taken prior to his surgery, were provided to Appellants' examiner. Following the examination, Appellants moved for sanctions against Guzman, alleging that his surgery constituted spoliation of evidence, and they requested a jury instruction of an adverse inference in their favor. The district court denied both motions.

1   Although the phrase "independent medical examination" ("IME") might suggest an examination by a court-appointed physician, in Texas, an IME is simply an examination by a physician upon another party's motion; it does not entail the court's appointment of an independent physician. Under Rule 204.1 of the Texas Rules of Civil Procedure, a party may move to compel another party to submit to a medical examination, and the court may issue an order granting that motion if certain conditions are met. See Tex. R. Civ. P. 204.1. This is colloquially referred to as an "IME."



A trial court's decision on a motion for sanctions for spoliation of evidence during discovery is reviewed for abuse of discretion. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th Cir. 1996). Spoliation of evidence "is the destruction or the significant and meaningful alteration of evidence." Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010). We permit an adverse inference against the spoliator or sanctions against the spoliator only upon a showing of "bad faith" or "bad conduct." Condrey v. SunTrust Bank of Georgia, 431 F.3d 191, 203 (5th Cir. 2005) (internal quotation marks omitted). A party's duty to preserve evidence comes into being when the party has notice that the evidence is relevant to the litigation [*12]  or should have known that the evidence may be relevant. Rimkus, 688 F. Supp. 2d at 612. Bad faith, in the context of spoliation, generally means destruction for the purpose of hiding adverse evidence. See Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir. 1998).

The district court acknowledged that Guzman may have been under a duty to preserve. At the time he scheduled the surgery, his counsel knew of Appellants' desire to conduct an independent medical examination. The district court concluded, however, that even if Guzman had been under a duty to preserve evidence, his conduct did not merit sanctions or adverse instructions because Appellants produced no evidence suggesting bad faith. Guzman's disclosure of his intent to have surgery during his deposition suggests he was not seeking to deceive Appellants. After Appellants received this disclosure in the deposition, they made no request to be informed of his surgery date, nor did they ask that he delay surgery pending his examination. Only after the examination was completed did Appellants assert that the surgery had meaningfully altered evidence.

While the timing of Guzman's surgery may seem strange, there is no evidence to suggest that he acted in a manner intended to deceive Appellants or that he undertook the surgery [*13]  with the intent of destroying or altering evidence. The district court concluded that the timing of Guzman's surgery alone was insufficient to demonstrate he had acted in bad faith. We find no reason to conclude that the district court abused its discretion in denying the motion for adverse instructions based on spoliation of evidence.

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