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Case Blurbs-OR: In re Helicopter Crash near Wendle Creek; Dist. Court Predicts Oregon will allow Spoliation Cause of Action

Posted by rjbiii on July 27, 2009

Post Process-This is an opinion by a district court in Connecticut sitting in judgment of a diversity case to be tried under the laws of the state of Oregon.

The Oregon Supreme Court has not yet considered whether intentional or negligent spoliation claims present cognizable causes of action. In such instances, “[i]n the absence of controlling forum state law, a federal court sitting in diversity must use its own best judgment in predicting how the state’s highest court would decide the case.”

In [Blincoe v. Western States Chiropractic College, 2007 U.S. Dist. LEXIS 51955, 2007 WL 2071916 (D. Or. July 14, 2007)], Magistrate Judge Papak recommended granting the defendant’s motion to dismiss an intentional spoliation claim and concluded that “Oregon law does not recognize the tort of intentional spoliation of evidence by a party.” Judge Papak’s analysis considered the law of other states, as well as Oregon’s numerous statutory, non-tortious remedies dealing with spoliation of evidence, in reaching that conclusion. FN2.

In Marcum v. Adventist Health System/West, 215 Ore. App. 166, 168 P.3d 1214, 1228-29 (Or. App. 2007), rev’d on other grounds, 345 Ore. 237, 193 P.3d 1 (Or. 2008), the Oregon appellate court acknowledged the parties’ dispute regarding spoliation causes of action under Oregon law, declined to “address the precise contours” of a negligent spoliation claim, and ultimately held that the plaintiff-appellant’s negligent spoliation claim failed. Nonetheless, the Marcum court discussed the merits of that claim:

We need not, and do not, address the precise contours of a cognizable claim for “negligent spoliation” under Oregon law. That is so because plaintiff here failed to make a prima facie showing that defendants’ alleged failure to maintain or produce the allegedly “missing” records materially impaired her prosecution of her medical negligence and informed consent claims.

Plaintiff’s “negligent spoliation” claim is akin to a legal malpractice claim in that “damages arise from the loss” — or diminution of value — of an underlying claim. . . . [P]laintiff’s primary medical negligence and informed consent claims ultimately failed for lack of proof of scientific/medical causation. Plaintiff argues that, if the allegedly absent records had been created or maintained and produced, Williamson might have been provided with the “missing link” that would have enabled him to identify and persuasively explain the causal relationship between gadolinium extravasation and Raynaud’s syndrome. Specifically, plaintiff points to the fact that no records reflect the amount of gadolinium used during the procedure. . . .

Accordingly, on this record, there is no evidence that plaintiff’s prosecution of her primary claims was materially impaired by the absence of such information-whether because of affirmative “spoliation” or by any negligent failure to create, maintain, or produce records pertaining to the MRI procedure.

Even without discussing the precise nature and elements of a negligent spoliation claim, absent further guidance or development from the Oregon Supreme Court, the appellate court’s decision in Marcum indicates that Sikorsky’s proposed amendments adding spoliation claims would not be futile. Absent a more recent or more authoritative ruling to the contrary, I predict on the basis of the Marcum decision that the Supreme Court of Oregon would recognize intentional and negligent spoliation of evidence as causes of action. FN3. “In the absence of a pronouncement by the highest court of a state, the federal courts must follow the decision of the intermediate appellate courts of the state unless there is convincing evidence that the highest court of the state would decide differently.” Here, there is no convincing evidence that the Oregon Supreme Court would not recognize spoliation causes of action.

FN2: Although Judge Papak’s findings and recommendation in Blincoe were adopted by the district court, the district court did not consider or develop the spoliation questions any further; neither did Magistrate Judge Papak in later proceedings.

FN3:The Court of Appeals of Oregon discussed negligent spoliation of evidence, but did not address the question of intentional spoliation. Because intentional spoliation, by its nature, involves a more deliberate action than negligent spoliation, I believe that, if the Oregon Supreme Court were to recognize negligent spoliation as a cause of action, the court would also recognize intentional spoliation of evidence as a cause of action.

In re Helicopter Crash near Wendle Creek, 2009 U.S. Dist. LEXIS 41477 (D. Conn. May 18, 2009)(internal citations omitted).

Posted in 2nd Circuit, Case Blurbs-OR, D. Conn., Judge Stefan R. Underhill, Spoliation | Leave a Comment »