In Lips, et. al.  v. Scottsdale Healthcare Corp., 1 CA-CV-08-0097 (AZ Ct. of Appeals, Div. 1, Dept. B, Aug. 25, 2009) Appellate Court Judge Jon W. Thompson writing for the majority affirmed the trial court's order dismissing plaintiffs' claims for intentional and negligent spoliation of evidence against Scottsdale Healthcare Corporation ("SHC").

Plaintiff underwent hip replacement surgery and had a hip prosthesis implanted that was designed by Encore Medical Corporation and Encore Medical L.P. (collectively "Encore"). The following year plaintiff experienced instability in her left hip and required additional surgery to repair the prosthesis and remove multiple ceramic fragments.  Plaintiff alleged that she subsequently requested SHC preserve and maintain the fragments.   Thereafter, plaintiff and her husband filed an action against Encore alleging claims of products liability, negligence and breach of warranty arising out of the failure of the original hip prosthesis.  

Plaintiff later discovered that SHC failed to preserve the fragments removed during surgery and subsequently brought an action for intentional and negligent spoliation of evidence.  Arizona does not recognize a claim for first-party spoliation of evidence, but rather imposes sanctions for such spoliation.  The appellate court declined to create a cause of action for intentional third-party spoliation noting that the benefits of such a claim were outweighed by the "burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies" citing the California Supreme Court's opinion, Temple Cmty. Hosp. v. Superior Court, 976 P.2d 223, 233 (Cal. 1999). Further, the court held that there was no evidence that SHC intended to disrupt plaintiffs' lawsuit by destroying evidence.  Since most intentional conduct can also be characterized as negligent, the court declined to adopt a cause of action for negligent spoliation of evidence.

For a copy of the case, click here.