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Last week, we found ourselves focusing on spoliation issues in two different cases, one at the front-end (an early case assessment) and one at the back-end (haggling over jury instructions). The Actos spoliation saga has made any sentient defendant antsy about these things. Thus, it is worthwhile to discuss Moore v. Abiomed, Inc., 20 U.S. Dist. LEXIS 147191 (C.D. Illinois Aug. 29, 2019), for its potentially helpful spoliation ruling, even if the rest of the opinion is forgettable.

The plaintiff had undergone open heart surgery, and the pump used during that surgery malfunctioned. The pump could not be removed at the end of the surgery, though it was designed to release and thereby facilitate such removal. Instead, a follow-up surgery was required for removal. The plaintiff alleged that the failed initial removal of the pump caused him to suffer from ischemia in extremities, resulting in the loss of three fingers in his dominant hand. The plaintiff filed claims against the pump manufacturer for strict product liability, res ipsa loquitur, negligence, breach of warranty, and spoliation. The spoliation claim was premised on the fact that the pump manufacturer sales representative present during the second operation did not retain the allegedly defective pump.

The defendant manufacturer moved to dismiss the strict liability claim based on a failure to specify the alleged defect. The court gave that argument the back of its hand. Failure of the release mechanism seems to be the claimed defect, and the egregious Bausch Seventh Circuit case stands as a formidable obstacle to insisting on much more detail. The defendant challenged the warranty claim for lack of privity, but the medical records showed that the plaintiff was charged over $60k for the pump, so he looked enough like a buyer. The defendant contended that the res ipsa claim was flawed because it was not in exclusive control of the pump – what about the hospital staff? – but the court concluded that the manufacturer had exclusive control when the pump was defectively manufactured, even if it did not during the surgery. All of those rulings could have gone the other way, but they didn’t, they are not totally shocking, they turn on factual peculiarities, and we don’t see them as precedents that will cause too much mischief going forward. (Unlike, say, the Bausch case, which is like a low-hanging beam in the basement that bangs us in the noggin every month or so.)

The spoliation claim lives or dies solely on the presence of a manufacturer’s sales representative at the explant surgery. But the representative never had possession of the pump, which was disposed of by one of the health care providers after it was removed. Illinois law controls the case, and Illinois imposes three requirements to support a claim of spoliation: (1) the defendant owes the plaintiff a duty to preserve the evidence, (2) the defendant breached that duty by losing or destroying the evidence, (3) the loss or destruction of the evidence prevented the plaintiff from proving up the lawsuit, and (4) the plaintiff suffered actual damages. Note that foreseeability of potential importance in later litigation isn’t, by itself, enough to support spoliation. There must be a special relationship, or, failing that, some sort of statutory duty or actual undertaking to create a duty to preserve evidence. Hence, even though the Moore court assumed that the plaintiff furnished enough facts to permit an inference that the sales rep should have foreseen that the pump might be material to a lawsuit, it held that the plaintiff still fell short of establishing potential spoliation:

“Missing from Plaintiff’s complaint, however, are any allegations of an agreement, contract, statute, special circumstances, or voluntary undertaking that gave rise to a duty to preserve evidence. Because Plaintiff has not alleged facts supporting both the relationship prong and the foreseeability prong, Plaintiff has failed to support a claim for spoliation.”

Moore, 2019 U.S. Dist. LEXIS 147191 AT *11.

We have written before about legal issues that arise when a company’s sales reps are present during surgeries. (It remains one of our more popular posts.). Spoliation is, obviously, one of those issues. The Moore case supplies some ammo for our clients to use when plaintiffs play the spoliation gambit.