Medical Malpractice Case of the Month
September 2002

Court Rejects Tort Claim for intentional Spoliation of Evidence by Non-Litigant

The California Supreme Court has held that a no cause of action exists for intentional spolianon of evidence against a third party who destroys evidence that is relevant to litigation between other parties. The court therefore ruled that a hospital could not be sued for failing to preserve evidence that could have helped a patient establish a products liability claim against the manufacturer of a medical device that malfunctioned during a surgical procedure.
The case arose out of a surgical procedure during which flame from an electrocautery instrument allegedly caused caused oxygen that was being used in anesthesia to ignite, resulting in burns to the patient. The patient alleged that her counsel repeatedly requested that the hospital where the surgery took place retain the instrument and other evidence that was relevant to the patient's injury, and the hospital allegedly denied requests to inspect this evidence. The patient subsequently filed an action against various defendants, including the hospital and the manufacturer of the instrument. The claims against the hospital included a count alleging intentional spoliation of evidence based on the hospital's alleged loss or concealment of evidence that was relevant to the patient's claims. The unavailable evidence included the electrocautery instrument, the oxygen tank used during the surgery-which alleged) was disposed of-and related written records. The spoliation claim-which sought compensatory and punitive damages-alleged that the hospital's conduct substantially interfered with the patient's ability to establish her tort claims and obtain compensation for her injuries. The trial court denied the hospital's motion to strike the intentional spoliation claim, and an appellate court affirmed that result.
The state supreme court reversed, holding that no cause of action in tort exists for intentional spoliation of evidence against a non-party to litigation. In so ruling, the court determined that the benefits of recognizing this cause of action were outweighed by the prospect of promoting a spiral of collateral, duplicative legal action over litigation-related misconduct that would undermine the finality of civil judgments and give unsuccessful litigants a second chance to recover for speculative harm. The court observed that it had recently rejected a cause of action for intentional spoliation of evidence by a party to litigation in Cedars-Sinai Medical Center v, Superior Court, 976 P.2d 223 (Cal. 1998), 20 MLR 110 (May
1998), and concluded that the same rule should
apply where evidence is destroyed by a non-party to the underlying litigation. In so ruling, the court reasoned that caution must be exercised in expanding tort liability for litigation-related misconduct, and that other remedies exist for this type of wrongdoing. Those remedies include legislative, regulatory, disciplinary and criminal sanctions for destroying evidence. The court also opined that this type of derivative litigation would burden the judicial system and necessitate a "trial within a trial" which would create the potential for inconsistent judgments. Moreover, the court wished to avoid a rule which would require businesses to implement wasteful and burdensome policies of retaining records and objects that might someday be relevant to litigation between other parties. In addition, the court reasoned that issues of damages and causation are likely to be speculative in a separate action which alleges that a lawsuit was unsuccessful due to a litigant's inability to present certain evidence which cannot be evaluated due to its unavailability. The court added that additional sanctions are available where a third party spoliator acts on behalf of a party to the underlying litigation, and that a third party who is not connected with a litigant would be unlikely to have the motive to destroy evidence that is relevant only to other parties' interests. Three justices dissented, arguing that existing non-tort remedies were inadequate to deter and compensate intentional spoliation of evidence by a non-party to the underlying litigation. The dissent pointed out that when a party to litigation is found to have destroyed evidence, his adversary is entitled to an evidentiary presumption that the lost evidence would have been unfavorable, but that this inference is not available in the third-party context. The dissent would have recognized a limited cause of action for intentional spoliation of evidence by a third party who acts with the intent of of harming ~ litigant's ability to pursue or defend a legal claim.
- Temple Community Hospital ~'. Superior Court, No. S049103 (Cal. Sup. Ct. May 27, 1999).

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