Garcia Hernandez v. VanVeen

Filing 102

ORDER Denying Plaintiff's 36 Motion for Spoliation of Evidence. Signed by Magistrate Judge Carl W. Hoffman on 3/28/2016. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MARIA GARCIA HERNANDEZ,
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Plaintiff,
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vs.
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CASE PETER VANVEEN, et al.,
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Defendants.
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___________________________________ ______)

Case No. 2:14-cv-01493-JCM-CWH
ORDER

This matter is before the Court on Maria Hernandez’s Motion for Spoliation of Evidence

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(ECF No. 36), filed on March 11, 2015. The Court also considered Case VanVeen’s response

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(ECF No. 48), filed March 30, 2015, and Hernandez’s reply (ECF No. 50), filed March 31, 2015,

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and supplemental reply (ECF No. 73), filed June 8, 2015.

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BACKGROUND

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This matter involves a motor vehicle collision that occurred when VanVeen, while

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operating a commercial tractor-trailer, rear-ended a vehicle in which Hernandez was a passenger.

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Hernandez was transported from the accident scene by ambulance. VanVeen was cited by the

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investigating officer for failure to use due care. (Mot. for Sanctions (ECF No. 36), Ex. 2 at 4.)

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Hernandez argues that under the circumstances, federal regulations require that the driver of a

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commercial vehicle take an alcohol or controlled substance test after the accident, but VanVeen, a

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self-employed driver, did not take a test. Hernandez argues that she is entitled to an adverse jury

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instruction as a sanction for VanVeen’s failure to test himself for alcohol or controlled substances

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after the accident. Although Hernandez provides no adverse inference instruction, it would

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presumably lead the jury to infer that the results of the blood test would have demonstrated that

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VanVeen was impaired at the time of the accident.

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DISCUSSION
“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve

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property for another’s use as evidence in pending or reasonably foreseeable litigation.” West v.

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Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (9th Cir. 1999). There are two sources of

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authority under which the Court can sanction a party for spoliation of evidence—its inherent

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authority or Federal Rule of Civil Procedure 37. Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th

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Cir. 2006). Regardless of whether it is under Rule 37 or its inherent authority, a federal court

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applies federal law when addressing issues of spoliation of evidence. See Glover v. BIC Corp., 6

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F.3d 1318, 1329 (9th Cir. 1993) (applying federal law when addressing spoliation in diversity

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litigation). Here, Hernandez requests that the Court exercise its inherent authority to enter an order

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for an adverse inference jury instruction.

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The Court has “inherent discretionary power to make appropriate evidentiary rulings in

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response to the destruction or spoliation of relevant evidence.” Id. Such broad power includes

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permitting an adverse inference from the spoliation of relevant evidence against the spoliating

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party. Id. The adverse inference sanction is based on evidentiary and policy rationales that seek to

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deter a party who has notice of an item’s relevance to litigation from destroying it. Akiona v.

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United States, 938 F.2d 158, 161 (9th Cir. 1991). Therefore, the duty to preserve begins when a

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party reasonably should have known that the evidence is relevant to anticipated litigation. See In re

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Napster, 462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006). A finding of bad faith is not a prerequisite

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for an adverse inference. Glover, 6 F.3d at 1329. A spoliation remedy, however, requires some

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degree of culpability. In re Napster, 462 F. Supp. 2d at 1067.

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Although the Ninth Circuit has approved the use of adverse inferences as sanctions for

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spoliation of evidence, it has not articulated a precise standard for determining when spoliation

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sanctions are appropriate. Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 989 (N.D. Cal.

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2012). “Trial courts have widely adopted the Second Circuit’s three-part test, which provides that a

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party seeking an adverse inference instruction based on the destruction of evidence must establish:

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(1) that the party having control over the evidence had an obligation to preserve it at the time it was

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destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the
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evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find

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that it would support that claim or defense.” Id. at 989-90 (quotations omitted).

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A. VanVeen’s Obligation to Take the Test and Preserve the Results

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The parties agree that 49 C.F.R. § 382.101 et seq. requires that employers test commercial

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motor vehicle drivers for alcohol and controlled substances “as soon as practical” after an accident

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on a public road if (1) the accident causes a loss of human life or (2) a moving traffic citation is

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issued to the commercial driver combined with either (a) bodily injury requiring immediate medical

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attention away from the scene of the accident or (b) disabling damage to a vehicle. 49 C.F.R.

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§ 382.303. The regulation applies to VanVeen even though he is self-employed. Id. at

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§ 382.103(b). The parties disagree on whether the circumstances of the accident met these criteria

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and triggered a duty for VanVeen to take a drug test.

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Hernandez argues that the accident resulted in a moving citation and bodily injury requiring

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immediate medical attention, and therefore a test was required. VanVeen responds that he had no

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duty to take a drug test even though a citation was issued because Hernandez did not receive any

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immediate medical treatment. In support, VanVeen cites evidence that the ambulance arrived

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without being summoned by the parties or the Nevada Highway Patrol, and that Hernandez was

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assessed as normal both at the scene and at the hospital where she was taken by the ambulance.

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VanVeen concedes, however, that Hernandez complained of some neck pain and hand pain.

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(Def.’s Resp. (ECF No. 48) at 6.) VanVeen argues that the only reason Hernandez was transported

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to the hospital by ambulance was because of the mechanism of the injury, which apparently was the

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impact at a speed in excess of 40 miles per hour, and that she was discharged approximately an

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hour after she was admitted.1

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VanVeen was cited for the accident, and Hernandez was transported by ambulance from
the scene, which leads to an objective conclusion that “bodily injury requiring immediate medical

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At the time that the test under § 382.303 would have been required, it is unlikely VanVeen
knew the results of Hernandez’s hospital visit or what the records would reflect were the reason for her
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being transported because after the accident, he had no further contact with her, and continued on his
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attention away from the scene of the accident” must have occurred. Hernandez was obviously

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examined by medical personnel for bodily injury, and she did receive some medicine at the

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hospital. Even if VanVeen thought Hernandez was not seriously injured, the regulations should be

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interpreted to require testing when the criteria are objectively established. The Court finds that

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under 49 C.F.R. § 382.303, VanVeen had a duty to take a drug test “as soon as practical” after the

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accident, thereby preserving any evidence regarding intoxication that may have existed.

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Although VanVeen argues that he did not have a duty to preserve evidence because he was

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not on notice that Hernandez would pursue a claim, the Court is not convinced by this argument.

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While all traffic accidents may not result in litigation, the accident report and transportation from

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the scene by ambulance is sufficient to trigger VanVeen’s duty to preserve relevant evidence.

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Compare Aiello v. Kroger Co., No. 2:08-cv-01729-HDM-RJJ, 2010 WL 3522259, *3 (D. Nev.

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Sept. 1, 2010) (noting completing an accident report was sufficient to put Defendant on notice of

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potential litigation) with English v. Walmart, No. 3:10-cv-00080-ECR-VPC, 2011 WL 3496092 (D.

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Nev. Aug. 10, 2011) (finding Defendant did not breach its duty to preserve video footage because

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Plaintiff did not file an accident report at the scene and notice of litigation did not arise until three

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months later when Plaintiff’s attorney requested the video). Here, Hernandez was transported from

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the scene by ambulance after a Nevada Highway Patrol investigation, and VanVeen was cited for

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the accident. VanVeen had sufficient notice on the date of the accident that litigation was

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reasonably foreseeable. Given that VanVeen had an obligation to take the test required by 49

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C.F.R. § 382.303 and to preserve the test results, this factor weighs in favor of spoliation sanctions.

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B. VanVeen’s Culpability

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To obtain an adverse inference instruction, Hernandez must prove that VanVeen had a

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culpable state of mind in failing to preserve the evidence, i.e., failing to take the test. See Apple,

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888 F. Supp. 2d at 998; In re Napster, 462 F. Supp. 2d at 1078; Med. Lab. Mgmt. Consultants v.

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ABC, 306 F.3d 806, 824 (9th Cir. 2002) (stating that “[w]hen relevant evidence is lost accidentally

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or for an innocent reason, an adverse evidentiary inference from the loss may be rejected.”) The

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Court must find that VanVeen acted with “conscious disregard” of his obligations. Apple, 888 F.

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Supp. 2d at 998.
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The Court is not convinced that VanVeen consciously disregarded his obligation to take the

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test. To determine VanVeen’s state of mind, the Court has considered the following factors. First,

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it was VanVeen who called the Highway Patrol to report the accident—if he was impaired, it is

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unlikely that he would have initiated a call to report the accident. Hernandez argues that VanVeen

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attempted to flee the scene of the accident, but provided no facts to support that argument. Second,

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the police report indicates that alcohol/drug impairment was “not involved,” and VanVeen was

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allowed to continue his trip. Third, based upon Hernandez’s statement at the scene, VanVeen did

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not believe Hernandez was injured, which negated, in his mind, the need for a test. And VanVeen

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provided verified discovery responses which indicated he did not believe a test was required. The

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Court finds that Hernandez has provided insufficient evidence to support a finding that VanVeen

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had a culpable state of mind, that is, that he acted in conscious disregard of his obligations, when he

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failed to take a drug test. The absence of evidence indicating VanVeen acted with a culpable state

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of mind weighs against spoliation sanctions.

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C.

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Spoliation requires awareness that the evidence lost was potentially relevant to the

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litigation. Absent such awareness, there is no spoliation. U.S. v. Kitsap Physicians Serv., 314 F.3d

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995, 1001 (9th Cir. 2002). “Courts generally agree that ‘relevance’ for spoliation purposes is a

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two-pronged finding of relevance and prejudice because for the court to issue sanctions, the

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absence of the evidence must be prejudicial to the party alleging spoliation of evidence.” Reinsdorf

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v. Skechers U.S.A., Inc., 296 F.R.D. 604, 627 (C.D. Cal. 2013) (quotation omitted). The prejudice

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inquiry “looks to whether the spoliating party’s actions impaired the non-spoliating party’s ability

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to go to trial or threatened to interfere with the rightful decision of the case.” Leon, 464 F.3d at 959

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(quotation omitted).

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Relevance of the Evidence to the Claim

Here, had a test been administered, the relevant evidence from Hernandez’s perspective

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would have been test results indicating that VanVeen was impaired. Hernandez believes that

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VanVeen was impaired at the time of the accident because VanVeen suffers from sleep apnea, and

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therefore he may have been under the influence of controlled substances to avoid the drowsiness or

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fatigue of sleep apnea. VanVeen responds that because the investigating officer unambiguously

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reported no suspicion of drug or alcohol use and allowed VanVeen to proceed on his trip after the

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accident was investigated, there is no basis to believe the test would have provided evidence of

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impairment.

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The Court is unable to determine whether the test results, if they existed, would be relevant

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to Hernandez’s claim of negligence against VanVeen. The same evidence that indicates VanVeen

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has sleep apnea also explains that it is treated with a CPAP machine, not medication. (Mot. for

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Sanctions (ECF No. 36), Ex. 5 at 2.) Hernandez has provided absolutely no evidence suggesting

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that VanVeen was impaired. The Court therefore finds that Hernandez’s argument that the test

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would support her claim is speculative. See Rimkus Consulting Grp., Inc. v. Cammarata, 688 F.

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Supp. 2d 598, 616 (S.D. Tex. 2010) (stating that typically, “speculative or generalized assertions

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that the missing evidence would have been favorable to the party seeking sanctions are

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insufficient”). The Court cannot assess whether a reasonable trier of fact would find that the non-

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existent test results would support Hernandez’s claim, or even be useful to determine the issues in

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the case. Apple, 888 F. Supp. 2d at 989.

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Additionally, Hernandez’s ability to prosecute this action is not prejudiced or even

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impaired. The results of the test are not the foundation of Hernandez’s negligence case against

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VanVeen. The official report of the accident indicates, among other things, that VanVeen was

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found to be at fault. Hernandez can testify in detail regarding the accident, present evidence of the

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medical care which she received, and call additional witnesses to the accident, including the driver

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and other passenger of the automobile that was hit by VanVeen. Even without the test results, the

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trier of fact will be fully able to make the final determination as to whether VanVeen’s negligence

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caused the accident. The absence of a showing of relevance or prejudice weighs against spoliation

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sanctions. Given that two of the three factors weigh against spoliation sanctions, the Court will

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deny Hernandez’s request for an adverse instruction.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Spoliation of Evidence (ECF
No. 36) is denied.

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DATED: March 28, 2016.
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C.W. Hoffman, Jr.
United States Magistrate Judge

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