Rogers v. Averitt Express, Inc.

• Decision Date: 06 March 2017
• Docket Number: CIVIL ACTION NO. 15–706–JWD–RLB
• Citation: 215 F.Supp.3d 510
• Parties: Kyrus ROGERS, individually and on behalf of his Minor Children, et al. v. AVERITT EXPRESS, INC., et al.
• Court: U.S. District Court — Middle District of Louisiana

215 F.Supp.3d 510

Kyrus ROGERS, individually and on behalf of his Minor Children, et al.

v.AVERITT EXPRESS, INC., et al.

CIVIL ACTION NO. 15–706–JWD–RLB

United States District Court, M.D. Louisiana.

Signed March 6, 2017

James Steven Broussard, Randall E. Hart, Broussard and Hart Law Firm, Lake Charles, LA, for Kyrus Rogers, et al.

Charles A. Cerise, Jr., Kyle Potts, Adams & Reese, Lawton Cole Callihan, Adams and Reese, LLP, New Orleans, LA, William David Shea, Scott Michael Levy, Adams and Reese LLP, Kellen James Mathews, Adams and Reese, Rebecca S. Helveston, Breazeale, Sachse & Wilson, LLP, Baton Rouge, LA, for Averitt Express, Inc., et al.

RULING AND ORDER

JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT

Before the Court is the Motion for Sanctions Based on Spoliation of Evidence brought by defendants Averitt Express, Inc. and Larry Killian ("Defendants"). (Doc. 65.) The motion is opposed by plaintiffs Kyrus Rogers, et al. ("Plaintiffs"). (Doc. 66.) Defendants filed a reply brief. (Doc. 69.) For the reasons which follow, the motion is denied in part and granted in part.

BACKGROUND

This case arises out of an April 18, 2014 accident between a commercial vehicle being driven by defendant Larry Killian ("Killian") and a vehicle being driven by plaintiff Kyrus Rogers ("Rogers"). Rogers urges he suffered significant injuries to his "disks, ligaments and muscles of his spine, causing lower back, neck and joint pain" (Doc. 1–2 at 3–4), and claims entitlement to substantial damages. Defendants claim Rogers' injuries are minimal, if he suffered any injury at all. This Court has previously granted Plaintiffs' Motion for Summary Judgment that Killian was at fault in the accident and Rogers was free from fault. However, the Court denied that motion as to the issues of causation and damages. (Doc. 76.)

Defendants claim that they were only advised of Rogers' spine surgery the day before it was scheduled to occur and therefore were deprived of their right under Federal Rule of Civil Procedure 35 to have a physician of their choosing examine Rogers before the surgery took place. They therefore urge the Court to exclude evidence of the surgery or, alternatively, instruct the jury that it may impose an adverse inference regarding the necessity for the surgery. (Doc. 65–1 at 1.)

ARGUMENTS OF THE PARTIES

Defendants argue that early in the litigation they "reached out to counsel to see about an early resolution before both sides incurred further expenses." (Doc. 65–1 at 2). Plaintiff's counsel responded that he would "immediately began (sic) work on a proposal for early resolution." (Id. ) Defendants contend that Plaintiffs' counsel received reports of doctors as early as July 22, 2015 suggesting the possible need for surgery but did not immediately share this with counsel for Defendants. (Id. , at 2–3.)

On July 31, 2015, Defendants' counsel requested an "update on the status of Plaintiffs' proposal for resolution." (Id. at 3.) Plaintiffs' counsel responded on August 10, 2015 that he was "waiting on one more narrative report from Mr. Rogers' (sic) treating physician and a lost wage statement from his employer." (Id. ) Plaintiffs' counsel did not attach nor did he mention the physicians report discussing possible surgery. (Id. )

In the meantime, Rogers continued to see his physicians and discuss anticipated surgery, which events were not reported to counsel for Defendants. (Id. ) On September 24, 2015, Defendants' counsel emailed Plaintiffs' counsel again inquiring about a settlement proposal. (Id. ) The following day, counsel for Plaintiff "inform[ed] [Defendants' counsel] that Mr. Rogers was recommended for surgery." (Id. ) Defendants' counsel argues that he immediately asked for the type of surgery which had been recommended and when it was scheduled so that he could check with his clients about an IME (independent medical examination).

(Id. at 3–4.) By return email on the same day, counsel for Plaintiffs stated he would "find out the surgery recommended and the schedule." (Id. , citing Exhibit C, Doc. 65–4 at 1–2.)

On September 30, 2015, five days later, Plaintiffs' counsel informed counsel for Defendants that Rogers had been recommended for a cervical discectomy

and fusion at two levels but "[did] not have a surgical schedule at this time." (Id. at 4, citing Exhibit F, Doc. 65–7 at 1.) Rogers' medical records produced after his surgery show that, on October 6, 2016, Rogers' treating doctor scheduled his surgery on an expedited basis for October 22, 2016. (Id. at 4, citing Exhibit D to motion, Doc. 65–5 at 8–10.) However, Plaintiffs' counsel did not unilaterally advise counsel for Defendants. Rather, not having heard from Plaintiffs' counsel, Defendants' counsel called Plaintiffs' counsel on October 12, 2015 asking for the medical records and the surgical recommendation. (Id. ) The following day, October 13, Plaintiffs' counsel responded by emailing what he claimed was a "surgical recommendation from Dr. Brennan and medical records from Lafayette surgical as you requested." (Id. citing Exhibit G, Doc. 65–8 at 2.) Defendants argue that what was sent was "nothing more than an itemized quotation for anticipated fees relating to the recommended surgery" and a few pages of irrelevant medical records. (Id. ) Plaintiffs' counsel, argue Defendants, conspicuously did not send previous reports discussing the anticipated surgery in detail or any information about the now scheduled surgical date of October 22, 2015. (Id. at 4–5.)

On October 14, 2015, counsel for Defendants emailed Plaintiffs' counsel asking for "actual treatment records you could send us so that we may further evaluate, in order to schedule an IME prior to any surgery. " (Id. at 5, citing Exhibit. G, Doc. 65–8 at 1, emphasis added.) Plaintiffs' counsel did not respond until October 19, 2015 by sending certain records which did not include information about Rogers' scheduled surgery. (Id. )

When counsel for Defendants called Plaintiffs' counsel on the afternoon of October 21, 2015 to advise that the case was being removed to federal court, it was only then that Plaintiffs' counsel revealed that Rogers would undergo surgery the following day, October 22, 2015. It was not until five days later, October 27, 2015, that Plaintiffs' counsel sent a disc with complete medical records revealing in writing the October 22, 2015 surgery date.

Defendants argue that a critical issue in the case is whether Rogers suffered a serious injury in the accident and whether surgery was warranted. (Doc. 65–1 at 10.). Thus they contend that because Plaintiffs bad faith in withholding information about the scheduled surgery, valuable evidence in the form of the requested IME was "spoliated." Therefore, insist Defendants, evidence of Rogers' surgery should be excluded altogether or, alternatively, the jury should be instructed regarding an adverse presumption to be drawn on the issue of whether the surgery was necessary. Defendants direct this Court's attention to Allen v. Resto , No. 12-cv-2242, 2013 WL 2152177 (E.D. La. May 16, 2013) where the court found an adverse inference to be appropriate under similar circumstances, and Zaunbrecher v. Northland Ins. Co. , No. 14-cv-0426, 2014 WL 4221943 (W.D. La. Aug. 26, 2014) where the court deferred ruling on a similar motion to allow the parties to engage in discovery on the issue.

Plaintiffs do not disagree with the timeline of communications set forth by the Defendants. (Doc. 66 at 3–4.) Plaintiffs do not dispute that their lawyer agreed to inform Defendants' counsel about the kind of surgery and the date it was scheduled to take place. But, counsel insists that "[w]hen the specific type of surgery was known [on September 25], Plaintiffs' counsel informed Defendants within the hour." (Id. at 8.) Furthermore, despite the fact that Rogers' October 22 surgery was scheduled on October 6, Plaintiffs' counsel maintains he did not become aware of the date surgery was to take place until October 20, 2016 (Id. , at 6) and, "[w]hen Plaintiffs' counsel became aware of the surgery date, defendants were informed within 24 hours." (Id. , at 8.)

Plaintiffs explain that the reason for the two week delay between October 6 (when the surgery date was scheduled) and October 20 (when Plaintiffs' counsel learned of it) is because Plaintiff used "an intermediary service [Medical Legal Solutions or "MLS"] to arrange for and schedule his client's medical treatment." (Id. at 2.) Because Plaintiffs' counsel informed counsel for Defendants within 24 hours of learning the date of surgery, Plaintiffs insist their lawyer was not in bad faith and sanctions are inappropriate. "Plaintiffs' counsel did not act in bad faith when Rogers underwent surgery. Defendants were timely notified of Rogers' surgical recommendation. Defendants were provided with the requested recommendation and medical records. Defendants were timely notified of the scheduled surgery date." (Id. , at 9.)

Furthermore, while Plaintiffs' counsel admits that "Defendants twice mentioned a DME,"¹ first by stating he would check with his client to determine whether one was going to be needed and second, that Defendants' counsel wanted to evaluate medical records in order to schedule a DME prior to surgery (Doc. 66 at 8–9), Defendants were aware of the recommended surgery on September 25. (Doc. 65–1 at 3.) On September 30, Defendants' counsel were told the surgery would be a two level cervical discectomy

and fusion. (Exhibit F to motion, Doc. 65–7 at 1.) Yet, "Defendants never made any attempt to actually schedule a DME, request an agreement to govern a DME, or identify a DME physician." (Doc. 66, at 8–9.) "At no time did Defendants take affirmative measures to secure a pre-surgery DME." (Id. at 9.)

Finally, Plaintiffs argue that Defendants were not prejudiced by Rogers' surgery and therefore, for this additional reason, sanctions are inappropriate. Plaintiffs suggest that no records were destroyed and Defendants have available all...