Insurance Litigation

Spoliation of Evidence: Where’s The Mesh?

What is Spoliation?

“Spoliation” is defined as “the improper destruction of evidence” relevant to a case. Whiteside v. Watson, 12 S.W.3d 614 (Tex. App.—Eastland, 2000). Preservation of evidence is of particular concern and of critical importance when trying to prove a personal injury or products liability case. When a person is injured by a defective product, the product itself is often the best piece of evidence the plaintiff has to show how the product was dangerously designed, manufactured, or lacked warnings about its most hazardous features. Although this firm is not aware of a mesh manufacturer arguing that the patient/client destroyed evidence, it is better to be “safe rather than sorry,” but more on that below. First, an understanding is needed of what spoliation is and how Texas courts are handling the issue of spoliation currently.

In Texas, spoliation is both an evidentiary concept and, as it results in the failure to produce discoverable evidence, a particularized form of discovery abuse. Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998). Spoliation, however, is not a separate cause of action. Id. at 954.The doctrine of spoliation has been around for centuries with the first recognition of the concept by the Texas Supreme Court in 1852 when it adopted the principle that “all things are presumed against the wrongdoer.” This is known as the spoliation presumption. See Cheatham v. Riddle, 8 Tex. 162, 167 (1852).

The Texas Supreme Court Speaks

With the advent of the twenty-first century and numerous technology advances, allegations of spoliation have proliferated as litigating parties and the courts increasingly deal with massive electronic data requests during the course of discovery. A need for guidance on how to deal with this type of increase as well as a general update on curbing the destruction of critical trial evidence was provided by July 3, 2014, Texas Supreme Court’s 6-3 decision in Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014). This twenty-five-page opinion outlines a complete analytical framework to guide Texas courts in evaluating arguments regarding the spoliation of evidence, but first the facts of this case. On September 2, 2004, Jerry Aldridge was a customer at Brookshire Brothers grocery store when he slipped and fell on grease near a rotisserie chicken display. Aldridge later went to the emergency room and reported the incident to Brookshire’s employees. Brookshire initially preserved approximately eight minutes of video footage from just before Aldridge’s entrance until shortly after his fall in the store. Aldridge’s attorney requested Brookshire to preserve approximately two and a half hours of footage from the store’s cameras, but Brookshire claimed, as was their business practice, that the footage had already been recorded over. Thus, there was no video footage that might show whether Brookshire Brothers was aware of the spilled grease, a critical issue in the case.

At trial, a Brookshire executive testified that he has saved only a portion of the video just to show that the fall had happened, but had not saved additionally footage as he did not think it was relevant and did not know at that time there would be litigation about the fall. The trial court submitted the following instruction: “If you find that Brookshire Brothers knew or reasonably should have known that such portions of the store video were not preserved and contained relevant evidence to the issues in this case, and its non-preservation has not been satisfactorily explained, then you are instructed that you may consider such evidence would have been unfavorable to Brookshire Brothers.”

The jury awarded Aldridge $1.6 million in damages. The appellant court affirmed and the supreme court granted review.

The “New” Texas Two-Step

Upon review, the Court completely rewrote spoliation. The Court formalized a two-step analysis for handling spoliation by the trial court. First, a court—not a jury—must determine, as a matter of law, whether a party spoliated evidence; and second, if spoliation occurred, the court must assess an appropriate remedy. Regarding step one, the Court further required the trial court to find: (1) whether the party had a duty to reasonably preserve evidence; (2) whether the party intentionally or negligently breached the duty by failing to do so; and (3) whether the spoliation prejudiced the non-spoliating party’s ability to present its case or defense. The duty to preserve evidence is not raised unless a party (based on a reasonable person standard) knows or reasonably should know that there is a substantial chance that a claim will be filed and that the subject evidence is relevant and material. An alleged non-spoliating party that has a duty can defend a spoliation allegation by offering a justification for the failure to preserve the potentially relevant evidence.

With regard to step two, if the trial court finds spoliation has occurred, the court may submit a spoliation jury instruction which is the harshest remedy, but only if it finds: (1) the spoliating party acted with intent to conceal discoverable evidence, or (2) the spoliating party acted negligently and caused the non-spoliating party to be irreparably deprived of any meaningful way to present a claim or defense. Brookshire Brothers, 439 S.W.3d at 23-26. The Texas Supreme Court found Brookshire Brothers had not intentionally spoliated the tape and affirmed the trial court judgment.

Where’s the Mesh?

Given the surge in vaginal mesh products liability cases over the last few years and our firm’s participation in them, it is possible that manufacturers may soon argue that our patient-clients have a duty to preserve any revised or explanted mesh. Consequently, if you are one of the thousands of unlucky women that have experienced the pain and suffering of having had surgically implanted mesh and are considering removal, it is better to be “safe than sorry”—tell your doctor to preserve any trimmed or explanted mesh, especially if you have already filed suit against a manufacturer. Not only will this simple suggestion prevent the manufacturer from arguing that you spoliated relevant evidence, but it will also go a long way in helping you and your attorney to prove the necessary piece to a successful trial outcome of “how” you were injured by the mesh.

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