Scruggs et al v. International Paper Company et al

Filing 85

ORDER granting 54 Motion ; granting 57 Motion to Amend/Correct; granting 72 Motion to Compel; granting in part and denying in part 74 Motion to Amend/Correct. Signed by Magistrate Judge G. R. Smith on 5/24/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOHNY SCRUGGS and MALINDA
SCRUGGS,
Plaintiffs,
V.

INTERNATIONAL PAPER COMPANY,
UNIMIN CORPORATION, ABC
CORPORATION, EFG CORPORATION,
XYZ CORPORATION,
and JOHN DOES 1-5,
Defendants.

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Case No. CV411-203

ORDER
Johny Scruggs is a truck driver who burned his feet while walking
through some liquid when he delivered a load at defendant International
Paper Co.'s (IP's) Savannah, Georgia mill. He brought this
premises-liability case against IP. Doc. 1-2. His wife brings a
consortium claim. Id. at 4. In this Order, as joined by a companion
Order issued this day, the Court is reaching the rest of a series of
discovery disputes arising between the parties. See Scruggs v.
International Paper Co., 278 F.R.D. 698 (S.D. Ga. 2012) (resolving video

inspection issue); doc. 41; doc. 38; doc. 26.

A. Spoliation
IP seeks sanctions for plaintiffs' alleged spoliation of evidence.
Doe. 54. Such sanctions are applied where a party destroys or fails to
preserve evidence ahead of reasonably foreseeable litigation, if not in the
face of actual litigation. Flury v. Daimler Chrysler Corp., 427 F.3d 939,
943-46 (11th Cir. 2005). They "prevent unfair prejudice to litigants and
to insure the integrity of the discovery process." Id. at 944. Sanctions
range from an "adverse inference instruction" to the jury to, if a plaintiff
is at fault, outright dismissal of his case. Id. at 947; Evans v. Mobile
County Health Department, 2012 WL 206141 at * 10-13 (S.D. Ala. Jan. 24,

2012) (imposing spoliation sanctions, including an adverse inference
instruction and an award of attorney's fees and expenses, based on the
defendant's destruction of computer evidence).
The sanctions extend to negligent, reckless, and intentional evidence
destruction. Hudson v. A4JH Receivable Management Services, 2012 WL
1194329 at * 4 (D. Kan. Mar 14, 2012) (sanction warranted for negligent
destruction of emails), as modified, 2012 WL 1215250 (D. Kan. Apr 9,
2012); Kraft Reinsurance Ireland, Ltd. v. Pallets Acquisitions, LLC, F.
Supp. 2d -' 2011 WL 5386421 at * 11-12 (N.D. Ga. Sep. 30, 2011) (food

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company and its cargo insurer spoliated evidence when, following mold
contamination of international food shipment, they destroyed wooden
shipping pallets that allegedly were the cause of the infestation, knowing
that litigation with seller of pallets was reasonably foreseeable; prior to
time of destruction of evidence, food company had written to seller
indicating that seller would be fully liable for the losses and that its
insurance carrier would be in touch with seller concerning the claim).
Bad faith is the common element here, and Drury reminds that it
need not include a malice component, Drury, 427 F.3d at 946, though for
the ultimate spoliation sanction -- dismissal, as seen in Drury -- the
circumstances must be "extraordinary." Id.; Denim North America
Holdings, LLC v. Swift Textiles, LLC, 816 F. Supp. 2d 1308, 1330 (M.D.

Ga. 2011) (determining there was no evidence that plaintiffs employees
destroyed email in bad faith); see also Danny Lynn Elec. & Plumbing, LLG
v. Veolia Es Solid Waste Southeast, Inc., 2012 WL 1571314 at * 1 (M.D.

Ala. May 4, 2012) (collecting cases).
Here IP explains that just before Scruggs burned himself IP gave
him a "truck unloading permit that required him to wear rubber boots."
Id. at 2. He did not. In fact, Scruggs says "[h]e was wearing inexpensive

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black boots that he purchased at Walmart." Doc. 63 at 5. After his feet
were burned, he took the time to write a contemporaneous note about it,
but then failed to retain the boots. But later, IP points out, Scruggs
claimed that "somebody around [his] house" must have accidentally
thrown them out. Id. at 3.
IP disbelieves him and moves for an adverse instruction spoliation
sanction (instructing the jury that Scruggs destroyed the boots and that
they may infer that the boots would have helped IP's defense), insisting
that "this loss of the boots could not have happened accidentally." Id. at 3.
Because the loss has prejudiced IP's ability to defend itself in this case (the
boots could have yielded forensic evidence supporting, for example, a
comparative-negligence defense), it seeks an instruction that, were the
boots available, they would "provide valuable and relevant evidence
adverse to Plaintiffs' case." Id. at 4. IP says that there are only three
people in the Scruggs' household and two of them are the plaintiffs here.
The third was their minor son and they had a duty to control him. Id.
Scruggs, IP insists, "could have easily put his boots in a protected area or
otherwise prevented their actual disposal." Id.

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Too, Scruggs brought a workers compensation claim against his
employer prior to this lawsuit and "to the extent that [he] filed that
workers compensation claim prior to the losing of his boots, such loss
would conclusively establish that spoliation had occurred." Id. at 9.
Scruggs, IP thus concludes, "threw his boots away, or allowed his boots to
be thrown away, while he was in contemplation of litigation." Id.
Deeming IP's motion meritless and urging that it be summarily
denied, doe. 63 at 2, Scruggs denies that he was warned to wear special
footwear. Id. In fact, he further asserts, an IP first aid clinic employee
treated his burns and told him he could throw his boots away since they
had chemicals on them. Id. at 2-3. And, he did not contact a lawyer "until
many months later." Id. at 3. Unguided legally, he took the boots home
but "[t]hey were disposed of when his brother and another family member
decided to surprise [him] by cleaning out his truck. At this point [he] had
yet to hire an attorney or make any other indication that he intended to
file a lawsuit." Id.
Scruggs also insists that his boots are not crucial to any issue in this
case, as IP's own records document his burns and the cause of same. Id.
at 4. Indeed, he reminds, IP investigated the matter the day it happened,

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but apparently failed to collect a sample of the liquid. Id. at 5. But even
if the parties dispute precisely what kind of liquid burned Scruggs, all
"have a pH level of 12, meaning they are both equally caustic substances."
Id.

IP replies that Scruggs should not be believed, as his current
explanation of what happened to his boots is suspiciously enhanced over
his earlier, deposition explanation that "[s]omebody around the house
accidentally" threw his boots away. Doc. 81 at 3. Even if this
explanation is true, IP further contends, Scruggs was charged with
knowledge that the boots would be of at least some relevancy and thus
"such recklessness with regard to potentially vital evidence . . . justif[ies]
sanctions for spoliation." Id. at 4. IP reminds that Scruggs appreciated
the likelihood of litigation because he took the time to contemporaneously
record his recollection of what happened that day. Id. at 5. The boots,
IP insists, indeed were relevant to its defense because the experts in this
case dispute the extent of Scruggs' injuries and resulting disability, and
there is some chance the boots would have shown other, third-party
chemicals on them. And their "cheapness" went to Scruggs' own duty of
care to himself -- a point relevant to any comparative-negligence based

defense. Id. at 2-4. Finally, nothing compares to the impact of allowing
jurors to see a piece of critical evidence (the boots) when finding liability
and damages facts. Id.
While this is a reasonably close call, the Court agrees with IP. It is
undisputed that the parties are disputing the extent of Scruggs' foot
injuries, including his pain and suffering. If his boots showed extensive
damage then that would tend to corroborate his exposure to and pain
suffered from the burning liquid. And vice versa. Meanwhile, it is
difficult to believe that a man who thought enough to memorialize that
day's events in writing would also not think to preserve the only things
that separated his feet from even more pain and suffering: his boots.' IP
is therefore entitled to a jury instruction that Scruggs has failed to
produce his boots for trial and that it is permissible for the jury to infer
that those boots would have been favorable to IP's defense. Its spoliation
motion, then, is granted. Doc. 54.
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Cf. Stanfill v. Talton, 2012 WL 1035385 at * 10-11 (M.D. Ga. Mar. 29, 2012) (father
of pretrial detainee, who died while in custody at county jail, failed to establish that
county defendants had duty to preserve any video of detainee in his cells, as would
support spoliation sanctions against defendants in father's civil rights action;
defendants did not anticipate litigation resulting from detainee's death, father did not
file suit until almost two years after detainee's death, and there was no indication that
father requested that defendants impose litigation hold or provided defendants any
form of notice that litigation was imminent or even contemplated until lawsuit was
actually filed).
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within the responding party's control.").
The Searock case, however, also noted the requester's option to
obtain "documents by taking the deposition of the custodians of the
records of the companies concerned, Fed. R.Civ.P. 45(d)(1). . . ." Searock,
736 F.2d at 654. Still, expense and efficiency considerations are always
in play. Scruggs shall promptly provide IP with the full names and
addresses of all of his doctors. IP shall be free to prepare postage-paid,
written-record requests for Scruggs to sign and for IP to then send to
those sources. Each request shall ask the records source to send the
records directly to IP. IP shall furnish a copy of those records to Scruggs
upon his request. Alternatively, IP may directly subpoena those sources
but then invoice Scruggs for the subpoena expenses if he fails to utilize the
informal, prepared-letter option. IP may seek records back as far as 15
years. See doe. 67 at 3; doe. 83 at 8 (IP agrees to a 15-year limit). The
Court is extending (limited to this matter) discovery 60 days to
accommodate this ruling. To that extent, then, the Court grants IP's
motion to compel. Doe. 72.

B. Medical Records
IP also moves to compel the production of Scruggs' medical records.
Doc. 72. Scruggs says that the requested documents are not in his
possession. Doc. 67 at 3. IP cites McDaniel v. Bradshaw, 2011 WL
2470519 (S.D. Fla. 2011), to insist that Scruggs must affirmatively obtain
and then disclose IP's requested documents. McDaniel's reasoning:
Although the Court accepts Plaintiffs representation that he does
not now possess the vast majority of the documents the Court
ordered him to produce, a party has an obligation to produce
documents not only in his possession, but also documents in his
custody and/or control. The Eleventh Circuit has defined "control"
as the legal right to obtain documents upon demand. Searock v.
Stripling, 736 F.2d 650 (11th Cir.1984). Plaintiff has the legal right
to obtain at least some of the documents at issue from other sources,
such as his income tax returns (from the IRS), medical records (from
the medical providers), and credit card statements and canceled
checks evidencing gun purchases (from the credit card providers
and/or the bank). It does not appear, however, that Plaintiff made
any effort to do so.
Id. at * 3; see also 1 DISCOVERY PROCEEDINGS IN FEDERAL COURT § 17:7 (3d
ed. Mar. 2012) ("a party need not have actual possession of documents to
be deemed in control of them if the party has the legal right to control or
obtain them. . . . If the responding party can obtain documents in the
possession of a third party upon request, the documents are considered

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C. Workers Compensation Records
IP also wants to reopen discovery in quest of Scruggs' worker's
compensation history. Doe. 74. Plantiffs object. Doe. 64. IP says
Scruggs failed to answer accurately its discovery request about the
existence of any pre-incident workers compensation claims and
treatment. Does. 74 & 82. Yet, IP asked him if he ever filed such a claim
and he said no. He was thus not deceptive, though it would have been
more satisfying if he revealed that an ex-employer had filed one for him.
Doe. 64 at 4-6. That claim is something IP found out about later from a
third party. Id. at 5. IP now says that data is relevant, and thus worth
reopening discovery to pursue, as it involved a sprained ankle. Id. at 5-6.
The Court agrees with Scruggs that he is claiming damages only for
"damaged peripheral nerve fibers in his feet," doe. 64 at 2, and the prior
claim, for a "twisted ankle," id. at 3, is a minor injury not reasonably
shown to bear any material relevance to his claim here. IP cites no
credible medical evidence showing that the ankle injury was permanent or
in any way has spawned downwind effects that even arguably figure into
Scruggs' present claimed difficulties. IP's motion thus is denied, and it is
not necessary to reach plaintiffs' untimeliness argument, doe. 64 at 8-9.

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The parties are also fighting over a specific doctor's (Dr. Reyes)
records on Scruggs. He had seen Reyes, a pulmonologist, after the
incident. Doe. 64 at 7. Scruggs had wanted to rule out any pulmonary
damage, and did (he pursues only foot-damage here), but when IP asked
him he could not remember Reyes's name. Id. Once Reyes's name was
later revealed, IP says, it sought his records. Doc. 82 at 3-4. Scruggs has
requested them and promises to share them, though he insists this is
much ado about nothing. Doe. 64 at 8. The Court directs Scruggs to
promptly share those records with IP, and otherwise denies IP's motion to
extend discovery on these grounds. Doe. 74. However, IP may apply for
a limited discovery extension to depose Reyes after it receives the
requested documents -- if it can show relevancy (i.e., that this
pulmonologist's findings in any reasonable way impacts Scruggs'
foot-based injury claims).
D. Conclusion
Accordingly, the Court GRANTS IP's spoliation motion, doc. 54, as
well as its motion to compel, doe. 72, but GRANTS only in part and
DENIES in part its motion to reopen discovery. Doc. 74. IP's "amend"
motion, doc. 57 (to amend a prior filing to cure an omission) is unopposed

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by operation of Local

Rule 7.5

and is therefore GRANTED.

SO ORDERED this 12V day of May, 2012.

UNITEb'9TALTES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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