MCCANN v. KENNEDY HEALTH SYSTEMS

Filing 97

MEMORANDUM OPINION AND ORDER Denying 62 Motion for Sanctions Due to Defendants Spoliation of Emergency Room Video Tapes. Signed by Magistrate Judge Joel Schneider on 1/24/14. (js) Modified on 1/24/2014 (js).

[Doc. No. 62]

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ROBERT MCCANN,

:
:
Plaintiff,
:
:
v.
:
:
KENNEDY UNIVERSITY
:
HOSPITAL, INC.,
:
:
Defendant.
:
:
_________________________:

Civil No. 12-1535 (JBS/JS)

MEMORANDUM OPINION AND ORDER
This
Sanctions
Video

matter

is

Due

Defendant[‘s]

Tapes”

McCann.
sanction

[Doc.

to

(“Motion”)

or

the

filed

62]. 1

No.

defendant

“intentionally

before

Court

on

Spoliation
by

pro

Plaintiff

Kennedy

the
of

se

requests

University

inadvertently”

destroying

“Motion

Emergency

plaintiff,
that

for
Room

Robert

the

Court

Hospital

for

videotapes

that

recorded defendant’s emergency room lobby on the night plaintiff
claims to have been mistreated by defendant’s staff. Id. at 2.
Plaintiff argues that defendant “knew or should have known that
the [video]tapes were discoverable material” and that there was

1

In a separate Order, the Court will address plaintiff’s request
for monetary sanctions due to the late production of defendant’s
documents.
1

an

“actual

constituting

withholding
spoliation.

or

suppression”

Id.

at

1.

of

the

The

videotapes

Court

received

defendant’s opposition to the motion (“Def.’s Brief”). [Doc. No.
69]. The Court also heard oral argument. For the reasons to be
discussed, plaintiff’s motion is DENIED.
Background
Plaintiff commenced the present action on March 12, 2012,
asserting

claims

against

defendant

pursuant

to

the

Emergency

Medical Treatment and Labor Act (“EMTLA”) 42 U.S.C. § 1395dd.
See generally Complaint [Doc. No. 1]. Plaintiff alleges that on
the night of December 21, 2011, he was transported by ambulance
to defendant’s Washington Township, New Jersey, hospital after
experiencing severe rectal pain and trouble breathing. Id.; see
October 17, 2013, “Pl.’s December 23, 2011, Email”. Plaintiff
alleges

that

hospital,

he

at

some

was

point

“incoherent

during
and

his
in

visit

to

excruciating

defendant’s
pain”

and

wandered into the emergency room lobby where he collapsed onto
the floor and “was left lying on the floor for more than ten
minutes,

while

staff

walked

over

him

without

offering

any

assistance.” Id. 2 Plaintiff claims that after he was eventually

2

At oral argument, plaintiff clarified the timeline of his
allegations. Plaintiff recalled waiting in defendant’s emergency
room at least two hours after arriving at the hospital before he
was placed in a “cubicle”, where he claims he waited for “three
to four hours without them not [sic] doing anything to me.”
November 21, 2013, Transcript of Oral Argument (“Tr.”), at 38:12

sent to a treatment room, he waited for hours without receiving
pain medication or medical attention. Id. Plaintiff alleges that
once

the

treating

physician

and

nurses

arrived,

they

were

reluctant to touch him and one nurse left the room “gagging”
because

of

his

condition,

which

caused

him

“embarrassment,

emotional stress, and extreme humiliation”. Id. The gravamen of
plaintiff’s complaint is that defendant “delayed and refused to
treat

the

plaintiff”

after

learning

that

he

did

not

have

insurance. Id.
On December 23, 2011, the day after his hospital visit,
plaintiff sent an email to Renae Alesczyk, an assistant to the
Senior

Vice

President

of

Kennedy

Health

System,

complaining

about his alleged experience at the hospital. See Pl.’s December
23, 2011, Email; October 17, 2013, Letter at 5. In the email,
7 [Doc. No. 88]. Plaintiff explained that due to the severity of
his pain, he eventually left the cubicle to walk outside of the
emergency room into the lobby area to call someone to bring him
to another medical facility. Id. at 38:8-18.
Plaintiff claimed that he did not remember anything but
“waking up by the telephone and watching medical staff go by
[him] and not even stop to see whether [he] was dying.” Id. at
38:19-21. Plaintiff stated that after he woke up he saw “white
coats passing by [him] – two of them right next to [him]. They
never stopped to see if [he] was having a heart attack, to see
if [he] needed prompt medical attention. They never stopped to
ascern [sic] what was wrong with [him] whatsoever . . . .” Id.
at 37:1-6.
Plaintiff claims that he was eventually helped into a
wheelchair by a hospital employee and wheeled back into the
emergency room, where he was allegedly told by hospital staff
that he needed to be readmitted because he left his cubicle. Id.
at 38:24 to 39:7.
3

plaintiff described the circumstances surrounding his collapse
in the lobby as follows:
The pain became so bad, I thought I was losing my
mind, I was determined to do something. I went to the
bathroom although it was agonizing I mad[e] it holding
onto the wall, a nurse who saw me struggling helped me
back to the room, I lay there for another 30 minutes
or so, when I dec[i]ded if I was to get no relief,
there was no need in being there, I struggled to get
up and walk, made it to the lobby, called my
girlfriend and after that I don’t know what happened,
I woke up on the floor where I laid for 5 minutes . .
. .
Id. In the email, plaintiff stated, “[t]his correspondence shall
serve as my notification of my intent to sue your hospital, Dr.
Constantine Tsgratos and Nurse Diana Hollop for discrimination
and their unfair and inhumane treatment of me while in your
hospital, and for pain and suffering.” Id. Plaintiff added that
“[t]he outcome of the lawsuit really doesn’t matter to me . . .
[y]ou can reach me at [phone number] if you so choose, if not
see you in court.” Id.
While
reasonably
months

defendant
foresee

following

initially

that

asserted

[p]laintiff

plaintiff’s

that

intended

December

23rd

it
to

email

“could
sue”
(see

not

in

the

Def.’s

Brief at 17-18), in a letter dated October 17, 2013, defense
counsel

submitted

to

the

Court

newly

discovered

email

correspondence between hospital staff that sheds light on how
defendant perceived plaintiff’s threat of litigation. The emails
reveal that only hours after plaintiff emailed his grievance to
4

Ms.

Alesczyk,

Aron

Berman,

formerly

employed

as

defendant’s

Director of Guest Relations and Service Improvement, forwarded
plaintiff’s email to Kim Hoffman, defendant’s Corporate Director
of Patient Safety Risk Management. Mr. Berman’s email posed the
following question, “[e]arly alert . . . [p]lease advise how to
proceed. Follow standard grievance response protocol or do not
respond

due

to

threat

of

litigation?”

See

October

17,

2013,

Letter at 11. In her reply dated December 27, 2011, Ms. Hoffman
stated:
My
concern
with
this
one
is
meeting
the
CMS
requirement as well as the litigation potential. This
was sent to many people and the response needs to be a
coordinated one by one person. Did Kathy [Tregear]
speak with the patient? Not sure but it needs to
follow the normal protocol.
Id. (emphasis added). 3
Upon

Ms.

Hoffman’s

recommendation,

Mr.

Berman

contacted

plaintiff by letter dated December 27, 2011, apologizing for
“the experience [plaintiff] described, and for failing to meet
[plaintiff’s] expectations.” See October 17, 2013, Letter at 14.
Mr. Berman also informed plaintiff that both the “Nurse Manager

3

At oral argument, Ms. Hoffman clarified that her concerns
regarding the “CMS requirement” related to the hospital’s
compliance with CMS regulations for responding to patient
grievances. According to Ms. Hoffman, the hospital was required
to conduct an investigation into the patient’s allegations,
provide an acknowledgement that the hospital received the
patient’s allegations, and provide a response back to the
patient based upon the findings of the investigation. Tr. at
44:12-20.
5

[Alice Farrell] and Medical Director [Dr. Thomas Wetjen] of the
Washington Township Emergency Department” were in the process of
“investigating and following up on the issues” identified in
plaintiff’s

email,

promising

to

respond

within

thirty

days.

According to Ms. Hoffman, Mr. Berman opened an investigation
into plaintiff’s allegations seeking input from clinical staff
regarding the treatment plaintiff received. Tr. at 51:7-10. Ms.
Hoffman testified that the investigation focused specifically on
the “clinical care that was given to plaintiff” because “that
was what was outlined primarily in the [plaintiff’s email].” Tr.
at

51:21

to

52:1.

At

the

conclusion

of

defendant’s

investigation, Mr. Berman contacted plaintiff by letter dated
January 25, 2012, to notify him that “[t]he outcome of [the]
investigation

showed

that

the

care

[plaintiff]

received

was

appropriate.” October 17, 2013, Letter at 15; January 25, 2012,
Berman Letter. Plaintiff responded by sending a letter dated
February 11, 2012, advising defendant of his intention to file a
lawsuit based upon the following claims:
discrimination,
physical,
mental
and
emotional
distress, for an incident that happened in Dec[ember]
of 2011, where I was left in a room without pain
medication or care for over seven hours . . .
humiliated and embarrassed by [defendant’s] staff[‘s]
attitude and neglect . . . [and] disparaging treatment
against those who have no insurance or are of a
minority . . . .

6

Id. at 17; February 11, 2012, “Tort Claims Notification” Letter.
Plaintiff subsequently filed his complaint on March 12, 2012.
During the course of discovery, plaintiff requested that
defendant

produce

videotape

footage

covering

the

hospital’s

emergency room lobby on the night the alleged incident occurred.
However, defendant informed plaintiff on two different occasions
that “no video tape evidence of his visit to the emergency room
on December 21 and December 22, 2011 existed after January 1112,

2012.”

Def.’s

Brief

at

15-16.

Defendant

asserts

that

it

explained to plaintiff that “due to limited hard drive space,
video tape evidence is erased approximately twenty-one (21) days
following the date of a recording.” Id. Thereafter, plaintiff
filed the present motion seeking sanctions against defendant for
its alleged spoliation of emergency room videotapes from the
night plaintiff’s action arose. Plaintiff argues that defendant
“knew

or

should

have

known

that

maintaining

records,

tapes,

video[s] . . . is required and that destruction of such items
whether inadvertent or intentional is subject to sanctions . . .
.” Motion at 2. Plaintiff asserts that “[t]he evidence destroyed
jeopardizes

[the]

chances

of

[p]laintiff

proving

his

allegations, and would have been good for the [plaintiff] [sic]
which is why [defendant] destroyed it . . . .” Id.
In

opposition,

defendant

initially

argued

that

sanctions

for spoliation should not be imposed because defendant “did not
7

know and could not reasonably foresee that [p]laintiff intended
to

sue

in

the

“destruction

of

[d]efendant’s
However,

in

coming
[the

months,”

videotapes]

established
light

while

of

was

routine.”

defendant’s

asserting

simply

Def.’s

recent

Brief

the

result

the

that

of

at

document

17-18.

production

revealing that it was, in fact, aware of plaintiff’s intent to
sue weeks before the tapes were set to be taped over, defendant
has tailored its argument to dispute the “nature and focus of
threatened
defense

litigation.”

counsel

Tr.

proffered

at
that

41:9-10.
from

At

the

oral

argument,

hospital

staff’s

perspective, the crux of plaintiff’s email was that “he was not
provided treatment and he was not treated properly and that . .
. [hospital personnel] saw it as someone who was claiming that
because

he

was

uninsured

that

he

was

being

discriminated

against, who was complaining of severe pain and was not being
treated either through medication or otherwise in the treatment
area

.

.

.

.”

Tr.

at

42:1-7.

Defense

counsel

argued

that

defendant’s investigation into plaintiff’s allegations did not
include

an

emergency

inquiry
room

into

lobby

plaintiff’s

because

alleged

plaintiff

collapse

never

in

the

specifically

alleged sustaining a “fall” and never claimed to have suffered
an

injury

in

the

lobby.

Defense

counsel

argued

that

the

hospital’s investigation revolved around plaintiff’s EMTLA claim

8

and

the

events

that

allegedly

occurred

within

the

treatment

room. Tr. at 41:23-25, 42:22-25.
Ms. Hoffman testified that while she had the authority to
make a request to save the tapes before they were overwritten,
she did not do so because she believed plaintiff’s complaint was
based upon the clinical care he received in the treatment area,
which is not covered by video cameras. Tr. at 45:13-21. Ms.
Hoffman

explained

that

“[she]

immediately

checked

to

see

if

there was an incident report. Security would have documented an
occurrence

in

the

incident

report

system.

There

was

not,

so

[she] had no reason to believe that anything occurred in the
lobby that would require [her] to sequester the tape.” Tr. at
46:3-7. When asked by the Court to identify circumstances that
warrant

the

explained

preservation

that

she

would

of

videotape

request

footage,

videotape

Ms.

from

Hoffman

security

if

someone were injured in a slip and fall or if a physical assault
took place in the emergency room lobby. Tr. at 46:20-25.
Defense
George

counsel

Crocker,

also

defendant’s

proffered
Security

testimony

on

Lieutenant,

behalf

of

representing

that while there are video cameras located in the emergency room
lobby area, in the drop-off area for emergency vehicles, and in
the

emergency

room

proper,

none

of

the

treatment

areas

are

filmed because of privacy laws. Tr. at 59:12 to 60:16. Defense
counsel further proffered that the hospital currently uses the
9

same digital video recording system that was in place on the
night of plaintiff’s visit, explaining that the system has a
digital video hard drive “which only has capacity for about 21
days of video [retention] and for that reason, after 21 days it
will re-loop and it will simply ta[p]e over and that is how
[defendant] [has] done this in the regular course of business
for years.” Tr. at 60:14-20.
In considering plaintiff’s present motion, the Court will
decide whether plaintiff’s December 23, 2011 email threatening
litigation triggered defendant’s duty to preserve the emergency
room videotapes. Specifically, the Court must determine whether
defendant should have foreseen that plaintiff would seek the
production of the videotapes to support his claims. Furthermore,
the Court will determine whether plaintiff satisfied his burden
of

proving

defendant

acted

in

“bad

faith”

in

allowing

the

videotapes to be taped over. For the reasons to be discussed,
plaintiff’s motion is denied.
Discussion
A claim for spoliation requires that the Court conduct a
two

part

inquiry.

The

Court

must

first

determine

whether

defendant’s conduct constitutes spoliation. Lucia v. McClain &
Co., Inc., No. 11-930 (CCC/JAD), 2013 WL 4517976, at **1, 8
(D.N.J. Aug. 23, 2013). If the Court finds that a party has
engaged in spoliation, it must next consider the appropriate
10

sanctions available to redress the situation. Id. Spoliation is
“‘the destruction or significant alteration of evidence, or the
failure to preserve property for another’s use as evidence in
pending

or

reasonably

foreseeable

litigation.’”

Kachigian

v.

Berkshire Life Ins. Co. of America, No. 09-6217 (DEA), 2013 WL
1338288, at **1, 2 (D.N.J. Apr. 1, 2013) (internal citations
omitted). The Third Circuit has adopted a four-factor test for
evaluating

spoliation

claims,

finding

that

spoliation

occurs

where: “(1) the evidence was in the party’s control; (2) the
evidence is relevant to the claims or defenses in the case; (3)
there has been actual suppression or withholding of evidence;
and

(4)

the

duty

to

preserve

the

evidence

was

reasonably

foreseeable to the party.” Bull v. United Parcel Service, 665
F.3d 68, 73 (3d Cir. 2012). “The party who seeks a spoliation
sanction bears the burden of proving these factors.” Kachigian,
2013 WL 1338288, at *2.
In the present action, neither party contests the fact that
defendant was in possession and control of the emergency room
videotapes at the time they were taped over. Defendant submits
that the videotapes cannot be produced and no longer exist after
being taped over as a matter of routine and in accordance with
its video retention policy on approximately January 11 or 12,
2012.

Def.’s

Brief

at

6.

The

11

Court

accepts

defendant’s

submission that it no longer possesses the videotapes at issue,
and thus proceeds to the relevance analysis.
As to the relevance of the tapes, plaintiff claims that the
tapes would have shown hospital staff walking past him as he lay
unconscious
footage

on

was

the

lobby

relevant

discrimination

and

floor.

to

Plaintiff

show

“inhumane”

that

he

treatment

argues
was

while

that

subjected
in

the
to

defendant’s

care. In opposition, defendant argues that plaintiff ultimately
filed

a

complaint

asserting

an

EMTLA

claim,

claiming

that

defendant failed to perform a medical screening examination in a
timely fashion and accusing his treating nurses and physicians
of

inappropriate

that

the

behavior.

complaint

is

Tr.

41:10-13.

in

rooted

at

Defendant

allegations

that

argues

defendant

failed to provide proper medical care and discriminated against
plaintiff for being uninsured, not “that there was an injury
that was caused by an event in the lobby.” Tr. at 42:22-24.
While

the

Court

is

left

to

speculate

as

to

what

the

videotapes may or may not have shown had they not been taped
over,

assuming

arguendo

that

the

tapes

depicted

defendant’s

staff walking past plaintiff as he lay unconscious on the floor,
the

Court

plaintiff’s
defendant’s

finds

that

claims.
alleged

By

such

evidence

presenting

indifference

would

video

towards

be

relevant

footage

plaintiff,

to

capturing
plaintiff

could argue that he was ignored because he was uninsured. Thus,
12

the Court finds that the videotapes were or could have been
relevant to plaintiff’s claims.
With respect to a party’s duty to preserve, it is well
settled that a litigant has an obligation “‘to preserve what it
knows, or reasonably should know, will likely be requested in
reasonably

foreseeable

Borough

Fairview,

of

litigation.’”
No.

09-0875,

Fairview

2013

WL

Ritz

163286

Corp.
at

**1,

v.
4

(D.N.J. Jan. 15, 2013) (quoting Scott v. IBM Corp., 196 F.R.D.
233, 249 (D.N.J. 2000)). The Third Circuit has held that the
question

of

reasonable

foreseeability

is

“‘a

flexible

fact-

specific standard that allows a district court to exercise the
discretion

necessary

to

confront

the

myriad

[of]

factual

situations inherent in the spoliation inquiry.’” Bull, 665 F.3d
at 78 (internal citations omitted).
In

light

of

defendant’s

recent

production

of

documents

showing that it was aware of plaintiff’s intent to sue prior to
the

taping

over

of

its

video,

the

Court

must

now

consider

defendant’s argument that the tapes were not preserved because
the hospital staff believed plaintiff’s grievances were directed
at the clinical treatment he received. A review of the recently
produced email exchanges between defendant’s staff reveals that
plaintiff’s December 23, 2011 email was circulated to a number
of

hospital

administrators

before

the

videotapes

were

taped

over. More importantly, the emails show that Ms. Hoffman, an
13

administrator

with

the

authority

to

preserve

the

videotapes,

acknowledged the “litigation potential” of plaintiff’s grievance
as early as December 27, 2011, roughly two weeks before the
tapes were taped over. See October 17, 2013, Letter at 11; Dec.
27,

2011,

Hoffman

Email.

The

record

also

indicates

that

on

January 30, 2012, soon after the subject videotape was taped
over,

emails

Wetjen

were

exchanged

(Emergency

Farrell

Department

(Emergency

plaintiff’s

between
Medical

Department

behavior,

the

Mr.

Director),

Nurse

treating

Berman,

Dr.
and

Manager)

staff’s

Thomas
Alice

discussing

conduct,

and

the

clinical care provided to plaintiff. Id. at 12. However, the
Court

notes

that

none

of

the

emails

reference

plaintiff’s

alleged “fall” in the lobby or his allegation that the staff
ignored him as he lay on the floor. The absence of discussion
regarding plaintiff’s alleged “fall” in the lobby supports Ms.
Hoffman’s

testimony

that

the

investigation

into

plaintiff’s

grievance was focused on the clinical care he received.
After

considering

the

totality

of

the

circumstances

surrounding plaintiff’s December 23, 2011 email, the Court finds
that

it

was

not

plaintiff

intended

clinical

care

unreasonable
to

sue

provided

for

based

in

his

14

defendant

on

his

to

believe

complaints

treatment

room,

about
which

that
the
was

allegedly motivated by the fact that he did not have insurance. 4
The emergency room videotape is not relevant to this complaint.
The Court agrees that the focus of plaintiff’s December 23, 2011
email was that

he

was

provided

substandard

medical

care

and

treated poorly by defendant’s staff because he was uninsured.
Furthermore, as defendant noted, plaintiff did not claim to have
suffered an injury as a result of his alleged collapse in the
lobby, a claim that would have likely prompted Ms. Hoffman to
ask security to preserve the video. Tr. at 53:9-16. While it is
clear

that

plaintiff’s

defendant’s

duty

to

December

preserve

23,

2011

relevant

email

evidence

triggered
concerning

plaintiff’s claims for substandard medical care, the Court finds
that prior to the January 11/12, 2012 tape-over of the emergency
room

tapes,

videotapes

it

would

was
be

not

reasonably

requested

in

foreseeable

connection

with

that
the

the

claims

raised in plaintiff’s email. This is due to the fact that the
focus

of

medical

plaintiff’s

treatment

or

litigation
lack

threat

thereof,

not

was

directed

to

his

what

happened

in

the

emergency room lobby.

4

The December 23, 2011 email is critical because it was the only
correspondence plaintiff sent to defendant regarding the alleged
incident prior to the videotapes being taped over. Although the
date of at least one of plaintiff’s written communications to
defendant is unclear, the Court’s ruling would not change even
if it was sent before January 11-12, 2012. All of plaintiff’s
communications focus on his medical treatment, and not what
happened in the emergency room.
15

As

a

result,

the

Court

finds

that

defendant’s

duty

to

preserve the videotapes did not arise before January 11 or 12,
2012. While the Court does not have to determine the exact date
the duty to preserve the emergency room videotapes arose, it
finds that the duty arose after the tapes had already been taped
over as a matter of routine. See Kachigian, 2013 WL 1338288, at
*3.
To complete the spoliation analysis, the Court addresses
the issue of whether the tape-over of the videotapes was done in
“bad faith.” The Third Circuit held in Bull that “a finding of
bad faith is pivotal to a spoliation determination.” Id. 5 The
Court’s ruling made it clear that “actual suppression requires

5

In Bull, the Third Circuit revisited its holding in Brewer v.
Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir.
1995), where the court addressed the connection between
sanctionable spoliation and a finding of bad faith, stating the
following:
For the spoliation rule to apply . . . it must appear
that
there
has
been
an
actual
suppression
or
withholding of the evidence. No unfavorable inference
arises when the circumstances indicate that the
document or article in question has been lost or
accidentally destroyed, or where the failure to
produce it is otherwise properly accounted for. See
generally 31A C.J.S. Evidence § 156(2); 29 Am. Jur. 2d
Evidence § 177 (“Such a presumption or inference
arises,
however,
only
when
the
spoliation
or
destruction
[of
evidence]
was
intentional,
and
indicates fraud and a desire to suppress the truth,
and it does not arise where the destruction was a
matter of routine with no fraudulent intent.”).
Bull, 665 F.3d at 79 (quoting Brewer, 72 F.3d at 334).
16

more than ordinary negligence.” Lucia, 2013 WL 4517976, at *16
(quoting Kachigian,

2013

WL

1338288,

at

*4).

After

Bull,

in

order to make a showing that evidence was withheld in bad faith,
the party who seeks a spoliation sanction bears the burden of
proving intent. Id.; see also U.S. v. Nelson, 481 Fed. Appx. 40,
42

(3d

Cir.

2012)

(“[W]here

there

is

no

showing

that

the

evidence was destroyed in order to prevent it from being used by
the adverse party, a spoliation instruction is improper.”).
In Kachigian, a case involving a breach of contract claim
based on the defendant’s denial of the plaintiff’s claim for
disability benefits, the defendants sought the production of
logs, appointment books, schedules and calendars allegedly kept
by the plaintiff documenting his daily occupational duties.
However, the plaintiff claimed that he was no longer in
possession of the logs because he turned them over to his former
employer and business partner as part of a transfer of ownership
agreement. After the plaintiff’s former business partner
produced the documents in response to the defendant’s subpoena,
the defendants claimed that the logs were incomplete and filed a
motion in limine requesting that the court dismiss the
plaintiff’s claims, bar the plaintiff from presenting evidence
that he performed certain occupational duties, or issue an
adverse inference instruction to the jury. Kachigian, 2013 WL
1338288, at **1-3.
17

In applying the spoliation analysis set forth in Bull, the
Court determined that the evidence was relevant and that by
turning over the logs pursuant to the transfer of ownership
agreement, the plaintiff no longer controlled the evidence. Id.
at *2. The court also considered the issue of whether it was
“objectively foreseeable” to the plaintiff that future
litigation was likely prior to the transfer of the logs,
concluding that the duty to preserve arose after the logs had
been transferred. Id. at *3. Lastly, in finding that no actual
suppression or spoliation occurred, the court explained that
“the record [did] not demonstrate any bad faith or intent on the
part of the [p]laintiff to withhold the documents,” because it
“seem[ed] likely the logs were simply misplaced or lost after
they were delivered to [plaintiff’s former business partner].”
Id. at *4.
Similar

to

Kachigian,

this

Court

finds

no

evidence

suggesting that the emergency room videotapes were taped over in
bad

faith

or

with

the

intent

to

destroy

relevant

evidence.

Moreover, the Court finds that prior to the videotapes being
taped over, it was not “objectively foreseeable” to defendant
that the videotapes from the emergency room lobby were relevant
to plaintiff’s claim regarding substandard medical care. See id.
at *3. Defendant does not dispute that it was responsible for
taping over the emergency room videotapes, nor does it dispute
18

the fact that it knew the tapes would be taped over as a matter
of

routine

Defendant’s
litigation

twenty-one
documents
potential

days
show

after
that

stemming

the

it

from

date

was

on

of

recording.

notice

plaintiff’s

visit

of

the

to

its

hospital weeks before the tapes were taped over. However, while
defendant “knowingly” taped over the videotapes by virtue of
maintaining a video retention system that automatically tapes
over

its

contents

after

three

weeks,

the

Court

finds

that

defendant did not do so in bad faith or with the intent to
deprive plaintiff of access to the footage. There is no evidence
to indicate that defendant’s employees knew or anticipated that
plaintiff’s claims would require the retention and production of
emergency room videotape footage from the night plaintiff was
treated. After reviewing the email exchanges between hospital
administrators and hearing Ms. Hoffman’s testimony, the Court
finds

that

defendant’s

failure

to

preserve

the

tapes

is

attributable to the fact that defendant reasonably believed that
the scope of plaintiff’s grievances concerned the standard of
medical care he received.
The Court finds that plaintiff has failed to establish that
defendant

acted

in

bad

faith

by

allowing

the

tapes

to

be

automatically taped over as a matter of routine, and has offered
no evidence to show defendant suppressed the tapes in order to
deprive him of access to relevant evidence. Therefore, absent a
19

showing of bad faith, the Court cannot find that defendant’s
conduct constitutes spoliation under Bull. See Lucia, 2013 WL
4517976, at **15-16 (finding no spoliation occurred as defendant
failed to establish that plaintiff acted in bad faith when he
inadvertently lost relevant logbooks).
In sum, the Court does not find that defendant’s conduct
amounts to spoliation. While plaintiff’s December 23, 2011 email
triggered defendant’s duty to preserve materials related to his
claim for substandard clinical care, the Court finds that it was
not

reasonably

foreseeable

to

defendant

that

plaintiff

would

eventually request the production of emergency room videotapes
from the night of his hospital visit. Defendant was reasonable
in operating under the belief that plaintiff’s claims arose out
of

the

medical

treatment

care

he

received

an

area

that

room,

Furthermore,

plaintiff

did

not

or

is

did
not

allege

not

receive

covered
that

he

by

in

the

cameras.

sustained

an

injury as a result of his “fall”, and thus Ms. Hoffman, hospital
security, and other administrators had no reasonable basis to
believe that a request to retain the emergency room videotapes
was necessary.
In addition, the Court finds that plaintiff has failed to
satisfy his burden of proving defendant acted in bad faith. In
the

wake

of

the

Third

Circuit’s

decision

in

Bull,

a

party

seeking to impose sanctions for spoliation bears the burden of
20

proving that the suppression of evidence was done in bad faith.
Given that plaintiff has made no such showing, the Court finds
that spoliation did not occur.
Conclusion
Accordingly, for all the foregoing reasons,
IT IS hereby ORDERED this 24th day of January, 2014, that
plaintiff’s

“Motion

for

Sanctions

Due

to

Defendant[‘s]

Spoliation of Emergency Room Video Tapes” is DENIED.

/s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Date: January 24, 2014

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