Defendants’ Request of Sanctions for Plaintiffs’ Counsel Failure to Preserve Lung Tissue Denied

U.S. District Court for the Southern District of Texas, Houston Division, March 31, 2021

In this asbestos action, Mr. James LaFrentz (the decedent) wore a 3M dust mask while working for General Dynamics from 1978 until 1984. The issue of whether the decedent suffered from mesothelioma or lung cancer was in contention before his passing. Several defendants, including General Dynamics and 3M, informed the plaintiffs’ counsel that the decedent’s diagnosis was in dispute and requested that the plaintiffs’ counsel preserve the decedent’s tissue, both orally and in writing. While the decedent passed away a couple days after the request for preservation of his tissue, the plaintiffs’ counsel did not pass along the request to the decedent’s family before the decedent’s burial. An autopsy and tissue preservation were not performed.  

The defendants filed a motion for sanctions. They argued that the plaintiffs’ counsel’s conduct amounted to spoliation of evidence, and the plaintiffs’ counsel’s failure to preserve evidence should lead to an adverse inference jury instruction. The plaintiffs contend that there was no duty to conduct an autopsy of the decedent, the failure to conduct an autopsy was not spoliation of evidence, and the defendants could not prove that any tissue that would have been obtained would have been favorable to their defenses. Further, if the actions by defense counsel triggered a duty, the plaintiffs’ counsel satisfied its duty by turning over all tissues obtained from the decedent prior to his passing.

The court set forth that “[s]poliation of evidence is the destruction or the significant and meaningful alteration of evidence.” Crain v. City of Selma, 952 F.3d 634, 639 (5th Cir. 2020). In addition “[a] party seeking the sanction of an adverse inference instruction must establish that: (1) the party having control over the evidence had a duty to preserve it at the time it was destroyed; (2) the evidence was destroyed with a ‘culpable state of mind,’ and (3) that the destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 340 (M.D. La. 2006) (citing Zubulake, 220 F.R.D. at 220). The court also noted that a party should file a motion under Federal Rule of Civil Procedure 35 to allow the court to compel an autopsy. Under Rule 35, “a party must show: (1) that the physical or mental state of the party is in controversy, and (2) that there is good cause for ordering the examination.” Roberts v. AC Marine, Inc., CIV.A. 12-2317, 2013 U.S. Dist. LEXIS 60639, 2013 WL 1814923, at *2 (E.D. La. Apr. 29, 2013) (citing Schlagenhauf v. Holder, 379 U.S. 104, 106, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964)).

The court determined that the plaintiffs’ counsel was not under a preexisting duty to preserve the decedent’s lung tissue as defense counsel failed to make the requisite showing for same. Notably, “even though parties are under a duty to preserve most evidence based merely on its relevance, a duty to perform a physical examination or autopsy is only triggered upon the court’s order, after the moving party submits proof of good cause.” See In re Certain Asbestos Cases, 113 F.R.D. 612, 614 (N.D. Tex. 1986). As such, the court set forth that defense counsel should have filed a motion for examination and met the good cause standard of Rule 35.

However, the court also noted that the plaintiffs’ counsel was aware of defense counsel’s request for preservation of the lung tissue prior to the decedent’s passing and did not respond. Further, he did not inform defense counsel of the decedent’s passing to allow them to discuss a course of action and seek the court’s intervention if the parties could not agree. Importantly, the court stated that the plaintiffs’ counsel’s failure to inform defense counsel of the decedent’s passing until after the burial, as well as the plaintiffs’ counsel’s failure to take steps to preserve the lung tissue when he was aware of requests from defense counsel “was at best unprofessional and at worst a bad faith attempt to prevent the defendants from obtaining relevant evidence.” While finding that the plaintiffs’ counsel did not act in bad faith, the court still performed an analysis of selecting an appropriate spoliation remedy. When making this determination, “any remedy should ‘(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.’” Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772, 801 (N.D. Tex. 2011) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)).

Therefore, the court would give a jury instruction, if requested by any party, that “(1) the defendants timely made an appropriate request to the plaintiffs’ counsel to preserve [the decedent’s] lung tissue; (2) that the request was not refused, rejected, or otherwise responded to as it should have been; (3) that the decedent died and was buried before the plaintiffs’ counsel informed the defendants’ counsel about the death; and (4) that, due to the conduct of the plaintiffs, the lung tissue that could have aided the experts in proving the cause of death was buried before the defendants or the court were informed and could have taken action.”

Read the full decision here.