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FOSTER v. LAWRENCE MEM. HOSP.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS


March 12, 1993

MARY ALICE FOSTER, personal representative of the Estate of Lance Foster, and WADE and MARY ALICE FOSTER, individually, Plaintiffs,
v.
LAWRENCE MEMORIAL HOSPITAL, MICHAEL GEIST, M.D., Defendants.

The opinion of the court was delivered by: SAM A. CROW

MEMORANDUM AND ORDER

 On May 6, 1989, Lance Foster, a student at the University of Kansas, was injured when a "large coke machine" fell on him at his scholarship hall. Foster was transported to Lawrence Memorial Hospital (LMH) in Lawrence, Kansas. At LMH, Foster received treatment from Dr. Michael Geist. Foster was later "life-flighted" to the Kansas University Medical Center in Kansas City, Kansas. On May 7, 1989, Foster died.

 On April 30, 1991, Mary Alice Foster, as representative of the estate of Lance Foster, and Wade and Mary Foster, individually, brought this action against LMH, Michael Geist, M.D. and John Doe Defendants (1-3) for negligence and violation of "the Social Security Act § 1867(a)(b)(1)(A) as amended and/or 42 U.S.C. § 1395, and 42 U.S.C. § 1395dd . . ."

 On January 9, 1992, this court issued an order denying LMH's Fed. R. Civ. P. 12(b)(6) motion to dismiss the plaintiffs' 42 U.S.C. § 1395dd "COBRA" claim. In that order the court granted Geist's and LMH's motion to determine the place of trial. This case will be tried in Topeka, Kansas. On March 24, 1992, the plaintiffs filed their first amended complaint.

 On September 11, 1992, this court granted in part and denied in part LMH's motion for summary judgment. In that order, the court granted LMH's motion for summary judgment on the plaintiffs' COBRA claims. The court also granted LMH summary judgment on some, but not all, of the plaintiffs' negligence claims.

 On December 10, 1992, the court denied Dr. Michael Geist's motion for partial summary judgment, or in the alternative, motion to strike on plaintiffs' spoliation of evidence claim. The court concluded that Kansas would, under the circumstances of this case, recognize the tort of spoliation. The court also concluded that genuine issues of fact precluded summary judgment. See Foster v. Lawrence Memorial Hospital, 809 F. Supp. 831 (D. Kan. 1992).

 Notwithstanding this ruling, on pages 838-839 of the court's order, the court stated:

 

From the plaintiffs' amended complaint, the pretrial order and memoranda addressing this issue, the court is uncertain of the plaintiffs' damage theory and the extent of damages claimed by the plaintiffs. Although Dr. Geist argues that the plaintiffs' have failed to plead damages, the court will allow the plaintiffs an opportunity to amend their spoliation claim to plead damages. The plaintiffs are granted leave to file an amendment to the pretrial order which articulates their theory of damages and the amount of damages claimed. In articulating the theory of their damages, the court expects the plaintiffs to demonstrate how the damages on their spoliation claim are not inseparable from their negligence claims. (footnotes omitted).

 On February 1, 1993, the plaintiffs filed a proposed amendment to the pretrial order which states a claim for damages resulting from Dr. Geist's spoliation of evidence. In that amendment, the plaintiffs' seek damages in an amount not to exceed $ 2,056,894. In a memorandum attached to the proposed amendment, the plaintiffs contend that their damages under the spoliation claim are the same monetary amount as the damages they seek under their malpractice claims. The plaintiffs contend that these damages are not duplicitous in that recovery under the theory of malpractice operates to exclude the spoliation claim: If the plaintiffs prevail on their malpractice claim, they are precluded from recovering under the spoliation claim. If the plaintiffs do not prevail on their malpractice claims, the jury would then be required to consider their spoliation claim to determine whether Dr. Geist's acts prevented them from proving their malpractice claims.

 On February 16, 1993, Dr. Geist filed a memorandum in opposition to the plaintiffs' proposed amendment to the pretrial order. Dr. Geist argues that the plaintiffs have failed to comply with the court's December 10, 1992, order. Specifically, Dr. Geist contends that the plaintiffs have failed to state how their spoliation claim is not inseparable from the malpractice claim. Dr. Geist complains that the plaintiffs simply want "two bites of the same apple." Dr. Geist contends that the plaintiffs cannot claim the "loss" of their malpractice claims and the entire amount of damages they seek under their malpractice claims as damages for the spoliated evidence. Dr. Geist also notes that the plaintiffs have been able to conduct this lawsuit without his personal notes, and contends that at best the plaintiffs can only claim a portion of their damages were caused by his destruction of the notes.

 The parties' research of this issue fell somewhat short of the court's expectations. The plaintiffs' brief contains two citations from two Florida decisions. Both cases were cited in the court's December 10, 1992, memorandum and order. In the first case, Continental Ins. Co. v. Herman 576 So. 2d 313, 314 (Fla. App. 3 Dist. 1990), rev. denied, 598 So. 2d 76 (Fla. 1991) (Table), the Florida court of appeals held that because the plaintiffs had successfully proven their underlying personal injury action, they were not entitled to sue in tort for negligent spoliation of evidence. In the second case, Bondu v. Gurvich, 473 So. 2d 1307 (Fla. App. 3 Dist. 1984), the plaintiff simply quotes the necessary elements of a claim for negligence. *fn1" This sparse treatment of the factual and legal issues raised by the court is particularly troubling in light of the fact that the court granted the plaintiffs' two motions for an extension of time to file a proposed amendment. In every case, the court expects each party to shoulder his or her own burden of researching relevant issues. In the preparation of each party's proposed jury instructions and trial briefs, the court expects the parties to adequately support the arguments advanced.

 The plaintiffs have not complied with the court's December 10, 1992, memorandum and order. The plaintiffs have not demonstrated that their spoliation claims are not subsumed into their malpractice claims. If the jury is permitted to consider evidence that Dr. Geist destroyed his notes and is thereby permitted to draw a negative inference from his actions in deciding the plaintiffs' malpractice claims, how is it legally possible for the jury to find no malpractice yet, in the next instance, find Dr. Geist liable for spoliation? Because the plaintiffs contend that their damages from spoliation are identical to the damages that they would be entitled to recover under their malpractice claims had the spoilation not occurred, it is not apparent to the court, under the facts of this case, a means by which the plaintiffs can prevail on a separate claim of spoliation following a finding of no malpractice. Unless the plaintiffs concede that the evidence of Dr. Geist's destruction of his notes is not relevant to the plaintiffs' malpractice claims, *fn2" then, as the defendant suggests, the plaintiffs are attempting to present essentially the same claim to the same jury captioned under two different headings. *fn3"

 In short, why should the court create a new tort out of what is essentially an evidentiary rule when the plaintiffs claim no damages that are distinct from their underlying claims? See Pharr v. Cortese, 147 Misc. 2d 1078, 559 N.Y.S.2d 780 (S. Ct. N.Y.) (refusing to recognize intentional spoliation of evidence as a separate tort when a physician allegedly falsifies records in order to avoid malpractice because, inter alia, the jury can infer that the purpose of altering records was fraudulent and that accurate records would have been unfavorable to the physician's interest). In denying Dr. Geist's motion for summary judgment on the plaintiffs' spoliation claims, the court presumed that the plaintiffs' were seeking damages that are, at least in part, distinct from the damages arising out of the underlying malpractice claim. If the damages claimed by the plaintiff were distinct, the plaintiff might be entitled to proceed under both theories. The plaintiffs have failed to demonstrate both factually and legally that it is necessary or appropriate to submit their claim for spoliation to the jury in the event that the jury finds no malpractice.

 In light of the plaintiffs' arguments and the facts of this case, the court finds that the submission of the plaintiffs' claim for "spoliation" is unnecessary, potentially confusing and prejudicial. The plaintiffs may not assert a separate or independent claim for spoliation of evidence.

 IT IS THEREFORE ORDERED that the plaintiffs' proposed amendment to the pretrial order (Dk. 136) is denied. The plaintiffs may not assert an independent or separate claim for the tort of spoilation of evidence.

 Dated this 12th day of March, 1993, Topeka, Kansas.

 Sam A. Crow, U.S. District Judge


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