Commercial Litigation and Arbitration

Spoliation — Elements of Substantive Spoliation Cause of Action under Ohio Law

Newberry v. Silverman, 2015 U.S. App. LEXIS 8904 (6th Cir. May 29, 2015):

3. Because Newberry's [*23]  complaint against Silverman was not disrupted by the allegedly destroyed dental records, the spoliation claim cannot stand

Finally, the district court correctly determined that Newberry's spoliation claim is flawed. There are a number of problems with the claim, but the most determinative are Newberry's failure to plead facts to support the inference that the alleged destruction of the dental records actually disrupted his case and his failure to plead facts indicating that Silverman intentionally destroyed the documents to prevent their appearance in litigation. A spoliation claim under Ohio law has five elements: (1) pending or probable litigation, (2) the defendant's knowledge of such litigation, (3) the defendant's willful destruction of relevant evidence, (4) actual disruption of a claimant's litigation due to the destruction, and (5) damages flowing from the spoliation. Smith v. Howard Johnson Co., Inc., 615 N.E.2d 1037, 1038 (Ohio 1993).

 [**14]  Newberry has not identified any aspect of his complaint that he would otherwise have been able to pursue, but cannot, because of the alleged destruction of some of his dental records. Although Newberry's briefs argue that his spoliation claim stems from his fraud claim, the complaint itself frames the entire [*24]  cause of action around the loss of evidence of Silverman's "negligent performance" of the root canal, as well as "other dental work." The spoliation claim is in no way tied to the fraud claim.

And even if the spoliation claim did stem from the fraud claim, Newberry's argument about his missing records is "based on innuendo, claiming that the records were missing without explanation." See McLeod v. Mt. Sinai Med. Ctr., 852 N.E.2d 1235, 1245 (Ohio Ct. App. 2006) (internal quotation marks omitted) (rejecting a spoliation claim where the plaintiff's argument for willful destruction was based on the absence of records rather than affirmative evidence that the defendant intentionally destroyed them). Newberry's reply brief is full of rhetorical questions as to the location of the missing records and speculations as to why they were not presented. But he has not alleged that Silverman in fact destroyed them to hinder Newberry's claim, and Ohio law does not recognize a spoliation claim based on speculation and guesswork. In sum, the district court did not err in dismissing Newberry's fundamentally flawed spoliation claim.

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