Zaunbrecher, Jr et al v. Northland Insurance Co et al

Filing 24

MEMORANDUM RULING re 14 MOTION to Compel Physical Examination and/or Alternatively Motion for Relief Based on Spoliation of Evidence, MOTION for Attorney Fees, MOTION to Expedite. By the motion before the Court, the defendant has sought to compel a DME of the plaintiff before the lumbar surgery, which aspect of the motion is now MOOT. The decision on the motion will be DEFERRED as to the requests for adverse presumptions and adverse jury charges regarding spoliation. IT IS ORDERED that a telephone status conference among the parties will be held on 9/26/2014 at 9:30 a.m. for discussion of the progress of the discovery effort. Signed by Magistrate Judge Patrick J Hanna on 8/26/2014. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
VINCENT ZAUNBRECHER, JR.

CIVIL ACTION NO. 14-CV-0426

VERSUS

JUDGE DOHERTY

NORTHLAND INSURANCE CO.

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Before the Court is the Motion to Compel Physical Examination and/or
Alternatively Motion for Relief Based on Spoliation of Evidence, which motion has
been referred to the undersigned for ruling. [Rec. Doc. 14]. Opposition has been filed
by the plaintiff [Rec. Doc. 19], and a reply memorandum was filed by the defendant.
[Rec. Doc. 22]. Oral argument was heard on the motion on August 26, 2014.
Factual and Procedural Background
Vincent Zaunbrecher has alleged he was injured in a motor vehicle accident
in July, 2013. He underwent cervical surgery soon thereafter. He also had
shoulder surgery on another date. During discovery and the collection of medical
records, it was learned that the plaintiff’s treating physician, Dr. DeAraujo, had
found no significant pathology in the patient’s lumbo-sacral spine. Defense
counsel asserts that nothing in the medical records collected or discovery
responses from the plaintiff indicated that another back surgery was recommended

or contemplated until May, 2014, when a new physician, Dr. Ilyas Munshi noted a
possible surgery at L4-5. On that information, in June, 2014, defense counsel
wrote to plaintiff’s counsel asking to be notified in advance of the lumbar surgery
or any other future surgery so that a Defense Medical Evaluation (DME) could be
obtained before surgery.
Defense counsel asserts that she learned on July 1, 2014 that the plaintiff
would have lumbar surgery on July 9, 2014. Attorneys for both sides
communicated regarding the prospects for obtaining the requested examination in
advance of the surgery date, mindful of the July 4th holiday and the general short
notice for accomplishing the examination. Arrangements were made for the
examination by a physician in Metairie, Louisiana on July 8, 2014, the day before
the scheduled surgery. When the information was conveyed to plaintiff’s counsel,
however, it was represented that the plaintiff refused to participate in the
evaluation. The plaintiff went forward with the lumbar surgery the next day.
Defendant was charged a $500.00 ‘no show’ fee by the doctor.
By the motion before the Court, the defendant has sought to compel a DME
of the plaintiff before the lumbar surgery, which aspect of the motion is now
MOOT. What remains is the defendant’s alternative argument that the Court
should apply an adverse presumption regarding the necessity for the lumbar
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surgery, including an adverse instruction to the jury at trial regarding spoliation of
evidence.
The defendant asserts that (1) the plaintiff was on notice of the defendant’s
desire for a pre-surgery medical evaluation; (2) no medical records available to the
defendant showed pathology indicative of surgery, and (3) had the examination
gone forward, the additional medical opinion would have either confirmed the
need for surgery or shown that surgery was unnecessary. That loss prejudices the
defendant.
In response to the motion, the plaintiff argues that the DME request on the
eve of the scheduled surgery was unreasonable in its timing and as to the travel
required of the plaintiff to accomplish the examination in New Orleans.
Nevertheless, plaintiff’s counsel concedes that the surgery could have been
postponed to accommodate the request. Plaintiff’s counsel maintains that there is
no evidence of bad faith by the plaintiff, which would be required for the
defendant to obtain the relief sought by the motion.
Applicable Law and Analysis
The severity of the sanctions sought by the defendant depends on (1) the
degree of fault; (2) the degree of prejudice suffered by the mover; and (3) whether
there is a lesser sanction that will avoid substantial unfairness to the opposing
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party and would serve to deter such conduct by others in the future. Pascal’s
Manale Restaurant Inc. v. United National Insurance Co., 2008 WL
1774131(E.D.La. 2008); Savarese v. Pearl River Navigation, Inc., 2010 WL
1817758(E.D.La. 2010); Allen v. Resto, 2013 WL 2152177(E.D.La. 2013).
Despite the arguments of the parties, it is the finding of the undersigned that
there are insufficient facts and evidence in the record to make a proper
determination relative to the issue of spoliation, and therfore, discovery will be
allowed on that issue. Therefore, the decision on the motion will be DEFERRED
as to the requests for adverse presumptions and adverse jury charges regarding
spoliation.
IT IS ORDERED that the parties proceed with discovery addressing the
spoliation issue and may include inquiry into spoliation in the taking of testimony
from the plaintiff, his treating doctors, and any other physician who may conduct
an examination at the defendant’s request.
At such time as the discovery process is completed, the Court will allow
supplemental briefing and submission of evidence on the issue of whether
spoliation has occurred, and if so, whether the plaintiff was in bad faith and
whether the defendant has been prejudiced.

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IT IS ORDERED that a telephone status conference among the parties will
be held on September 26, 2014, at 9:30 a.m. for discussion of the progress of the
discovery effort.

Signed at Lafayette, Louisiana this 26th day of August, 2014.

___________________________________
Patrick J. Hanna
United States Magistrate Judge.

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