Skip to main content
Insight

Claims for Negligent Spoliation of Evidence Not Supported by Louisiana Law, Reynolds v. Bordelon

Published on: July 23, 2015

In Reynolds v. Bordelon, 2014-2362 (La. 6/30/15), — So.3d—, 2015 WL 3972370, the Louisiana Supreme Court definitively ruled that Louisiana law does not recognize a cause of action for negligent spoliation of evidence. This resolved a disputed issue of Louisiana law.

The Reynolds plaintiff was involved in a multi-car accident in which his airbag failed to deploy. His insurance company paid what was owed for the totaled vehicle under its policy and, in the normal course of business, disposed of the vehicle by auctioning it to a salvage yard. Plaintiff’s petition included a claim against the auto manufacturer for the airbag failure. It also included a claim against his insurance company and the salvage yard for failure to preserve the vehicle as evidence likely to be used in litigation.

The Supreme Court classified the insurer and salvage yard as "third parties" to the lawsuit and categorized the plaintiff's claims against them as a negligent spoliation theory. In rejecting these third-party claims, the Court declared a claim for negligent spoliation to be against Louisiana public policy.

First, the tort would not deter future conduct, but would instead penalize a party unaware of potential wrongdoing. Second, liability for such a tort would be based upon great speculation regarding the value of the evidence at issue. Lastly, it would create unnecessary litigation and place a substantial burden upon society as a whole because third parties not even aware of litigation would be required to adopt cumbersome retention policies to reduce exposure to liability.

To prevent spoliation of evidence by third parties, a plaintiff who anticipates litigation should instead enter into an agreement with the third party or obtain a court order to preserve the evidence. By doing so, the plaintiff preserves a potential breach of contract claim regarding the evidence or can seek remedies for violation of the court order in the event the evidence is lost or destroyed.

Under Reynolds, the plaintiff cannot assert a claim for negligent spoliation of evidence. However, the Court confirmed that discovery sanctions and criminal sanctions remain viable against “first parties” who intentionally destroy evidence, Further, third parties may still be liable if a plaintiff can demonstrate a breach of a contract to preserve the evidence.

Posted by:

Disclaimer

Keogh Cox & Wilson, Ltd. provides this blog as a public service for general information only. The materials contained herein may not reflect the most current legal developments or even express the opinion of all or even most of Keogh Cox attorneys. Such material does not constitute legal advice or form any attorney-client relationship. Keogh Cox and all contributing author(s) expressly disclaim all liability to any person with respect to the contents of this Web site and Blog and expect that no reliance will be made upon the information provided.

Continue Reading

Explore legal perspectives on the issues shaping Louisiana's key industries and courtrooms.

Insight

Here Comes Hurricane Ida: What To Do If Your Home is Damaged by a Storm or Flood

Unfortunately, Louisianians have endured many natural disasters in the past several years. From the historic flooding in Baton Rouge in August 2016 to the devastation caused by Hurricanes Laura and Delta in 2020, Gulf Coast residents are very familiar with significant storms and flooding events. While the rebuilding process will take months or years to complete, this article is designed to provide some basic information on how to document and report your property damage claim and apply for and obtain disaster assistance.

  • DOCUMENT, DOCUMENT, DOCUMENT - Once you are able to do so, make sure to document the damages to your home and contents. Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos of the damage. Make a list of the items in your home that were damaged or destroyed. One way to organize this list is to list each item from each room together, approximate its age, where it was purchased and its value when purchased. As you rebuild, and materials and items are thrown out, it will be much more difficult to document your claim.
  • REPORT YOUR CLAIM – Report your damage to your homeowners or flood insurer as soon as possible. Provide as much detail about the damage as you can. If you are unaware of your insurer, contact your insurance agent who can help you to report your claim.
  • OBTAIN MULTIPLE ESTIMATES - Although it is often difficult to do so after a natural disaster because of the volume of work, obtain multiple estimates for the work needed on your home. Pay for the estimate if necessary. If you have three estimates and the amounts are close, they are much more credible. Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes.
  • SAVE YOUR RECEIPTS – Whether for repairs you undertake to fix the damage to your home, to replace contents, or for living expenses after the storm, save your receipts. These receipts will be used to document your losses and verify the amount of your claim to your insurer.
  • FOLLOW UP WITH YOUR INSURER - Provide whatever is requested by your insurer as they adjust your claim. Communicate with your insurer on a regular basis. Although it may seem tedious, communication with your insurer during the claim is important.
  • APPLY FOR ASSISTANCE - Especially if your property is not insured, make sure to immediately apply for government assistance. You can apply for federal assistance at www.disasterassistance.gov. Oftentimes, the state government will also administer federal or state disaster assistance funds.
Insight

Keeping Testimony of Future Medical Expenses “Out of the Gate”

Ina recent case involving Keogh Cox attorneys, the Eastern District of Louisiana in MichaelBrander, Jr. v. State Farm Mutual Auto. Ins. Co., Civ. A. No. 18-982(Feb. 14, 2019), 2019 WL 636423 barred testimony of substantial projectedmedical expenses because it was not based on a reliable methodology. Thisruling stands to impact many other cases where plaintiffs seek to usefar-reaching projections of a life-long need for radiofrequency ablations("RFAs") or other pain-management modalities to "board" sixand even seven-figure numbers for future medical expenses.

InDaubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), theUnited States Supreme Court recognized the trial judge as the “gatekeeper” of expertopinion testimony and held that only reliable and relevant expert opinions maybe admitted. The reliability requirement serves to keep expert opinions“outside the gate” when they constitute unsupported speculation or meresubjective belief; only scientifically valid expert opinions are allowedinside. To ascertain whether an expert opinion is scientifically valid, Daubertinstructs the trial court to consider:

∙ whether theexpert’s theory can or has been tested;

∙ whether it hasbeen subject to peer review and publication;

∙ the known orpotential rate of error when applying the theory;

∙ applicablestandards and controls; and,

∙ the degree towhich the theory has been generally accepted in the scientific community.

InBrander, the plaintiff advanced medical testimony that he would needRFAs every year of his expected lifetime, a period of 36 years. The courtdisallowed the testimony, noting that the plaintiff’s physicians had less thanten years personal experience in administering RFAs to patients, the medicalliterature only considered the effectiveness of RFAs over a span of seven toten years, and there was no showing that the 36-year treatment plan was ingeneral acceptance by the medical community. According to the court, theexpert opinions offered by plaintiff failed Daubert “on all points.” Asa result, the plaintiff was permitted to introduce testimony of future RFAs foronly a seven-year period.

The reasoning of Brander may be equally applicable to projections of lifetime treatment involving other medical procedures, such as medial branch blocks, Botox injections, or spinal cord stimulators, for which the long-term efficacy has not been firmly established in the medical literature. Opinions unsupported by personal treatment experience and peer-reviewed medical studies are not scientifically valid and are properly halted “at the gate.”

Nancy B. Gilbert is a partner with Keogh Cox in Baton Rouge, Louisiana. She is a puzzle-solver by nature, and specializes in providing clear and in-depth analysis of complex litigation issues.

Insight

What to do if your Home or Business is Damaged by Flood or Storm

Unfortunately, recent flooding and storm events have again affected our area in Louisiana. Many people experienced flooding and storm damage to their homes and businesses. If you experienced flood or storm damage, please consider following these steps to ensure your damage claim is properly documented and submitted:

  • DOCUMENT, DOCUMENT, DOCUMENT - Once you are able, make sure to document the damages to your home and contents. Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos and video of the damage. Make a list of the items that were damaged or destroyed. One way to organize this list is to group items from each room together, approximate its age, where it was purchased, and its value when purchased. It will be more difficult to document your claim once the cleanup or rebuilding begins.
  • OBTAIN MULTIPLE ESTIMATES -To the extent you are able, obtain multiple estimates for the work needed on your home. Pay for the estimate if necessary. If you have three estimates and the amounts are close, they are much more credible. Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes.
  • NOTIFY YOUR INSURER – Whether a homeowners or flood policy claim, or other insurance claim related to your business, promptly notify your insurer of your damage. Your insurer will send someone to inspect the damage and start your claim. Provide as much information as possible to make their job as easy as possible. That will likely quicken the pace of your claim.
  • FLOOD CLAIMS – If you have flood insurance, it is likely provided by the federal government through the National Flood Insurance Program (NFIP). There are specific rules for submitting your claim through the NFIP. YOU MUST SUBMIT FEMA FORM 086-0-11 (NOTICE OF LOSS) WITHIN 120 DAYS OF YOUR DAMAGE. You can find this form here.

C. Reynolds LeBlanc

Partner
Insurance
Louisiana Supreme Court