Commercial Litigation and Arbitration

Spoliation of Tangible Evidence — Bad Faith Required in Fifth Circuit (No Change Post 37(e))

Estes v. Lanx, Inc., 2016 U.S. App. LEXIS 15328 (5th Cir. Aug. 16, 2016):

Rocky Estes had a Lanx-created device, the Telluride system, implanted to fuse his spinal vertebrae. After several months, the screws in the system fractured and broke. As a result, the device had to be removed and replaced. About a year later, Estes sued Lanx in federal court asserting claims under Mississippi tort law. The district court granted summary judgment to Lanx on all claims. Estes appeals that ruling with respect to two of the claims--manufacturing defect and fraudulent concealment. He also appeals the denial of a motion to compel.

Estes claims his injury happened because [*2]  of a manufacturing defect in the screws. But neither the hospital nor Lanx retained the broken screws when they were removed in the surgery that replaced the first implant. This prevents Estes from making the required showing that the malfunctioning item deviated from the manufacturing specifications. See Cooper Tire & Rubber Co. v. Tuckier, 826 So. 2d 679, 693 (Miss. 2002). Recognizing that the missing screws prevent the comparison that is usually necessary in these cases, Estes argues that the district court should have drawn an adverse inference against Lanx on this issue because one of its product distributors was present in the operating room from which the screw went missing.

We conclude that the trial court did not abuse its discretion in refusing to draw an adverse inference based on spoliation of evidence. Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015). When evidence is spoliated, we will draw an "adverse inference against the destroyer of evidence only upon a showing of 'bad faith' or 'bad conduct.'" Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005) (quoting King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003)). Having reviewed the briefs and record, and considered the oral argument of the parties, we find no basis for disturbing the district court's finding of no bad faith.1

1   The district court also correctly noted that Estes failed to introduce any evidence showing the actual manufacturing [*3]  specifications.

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