Trevino v. Ortega, 97-0280

CourtSupreme Court of Texas
Citation969 S.W.2d 950
Docket NumberNo. 97-0280,97-0280
Parties41 Tex. Sup. Ct. J. 907 Jorge H. TREVINO, M.D., individually and d/b/a McAllen Maternity Clinic, Petitioner, v. Genaro ORTEGA, individually and a/n/f of Linda Ortega, a minor, Respondent.
Decision Date03 July 1998

Thomas F. Nye, Diana L. Faust, Corpus Christi, Diana L. Faust, Dallas, Linda C. Breck, Corpus Christi, R. Brent Cooper, Dallas, for Petitoner.

Ricky J. Poole, Randall C. Jackson, Jr., San Antonio, for Respondent.

ENOCH, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, HECHT, SPECTOR, OWEN, ABBOTT and HANKINSON, Justices, join.

The issue in this case is whether this Court should recognize an independent cause of action for intentional or negligent spoliation of evidence by parties to litigation. 1 The court of appeals held that Texas recognizes a cause of action for evidence spoliation. 938 S.W.2d 219, 223. Because we determine that spoliation does not give rise to independent damages, and because it is better remedied within the lawsuit affected by spoliation, we decline to recognize spoliation as a tort cause of action. Therefore, we reverse the court of appeals' judgment and render judgment that Ortega take nothing.

In 1988, Genaro Ortega, individually and as next friend of his daughter, Linda Ortega, sued Drs. Michael Aleman and Jorge Trevio and McAllen Maternity Clinic for medical malpractice. Ortega alleged that the defendants were negligent in providing care and treatment during Linda's birth in 1974. 2 Discovering that Linda's medical records from the birth had been destroyed, Ortega then sued Dr. Trevio in a separate suit for intentionally, recklessly, or negligently destroying Linda Ortega's medical records from the birth.

It is the appeal from this latter action that is before us. Here, Ortega claims that Trevio had a duty to preserve Linda's medical records and that destroying the records materially interferes with Ortega's ability to prepare his medical malpractice suit. Ortega explains that Aleman, the attending physician, testified that he has no specific recollection of the delivery and, therefore, the missing medical records are the only way to determine the procedures used to deliver Linda. Because the medical records are missing, Ortega's expert cannot render an opinion about Aleman's, the Clinic's, or Trevio's negligence.

Responding to Ortega's spoliation suit, Trevio specially excepted and asserted that Ortega failed to state a cause of action. The trial court sustained Trevio's special exception and gave Ortega an opportunity to amend. But Ortega declined to amend and the trial court dismissed the case. Ortega appealed. The court of appeals reversed the trial court's dismissal order and held that Texas recognizes an independent cause of action for evidence spoliation. 938 S.W.2d at 223.

This Court treads cautiously when deciding whether to recognize a new tort. See generally Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 404-06 (Tex.1993); Graff v Beard, 858 S.W.2d 918, 920 (Tex.1993); Boyles v. Kerr, 855 S.W.2d 593, 600 (Tex.1993). While the law must adjust to meet society's changing needs, we must balance that adjustment against boundless claims in an already crowded judicial system. We are especially averse to creating a tort that would only lead to duplicative litigation, encouraging inefficient relitigation of issues better handled within the context of the core cause of action. We thus decline to recognize evidence spoliation as an independent tort.

A number of jurisdictions that have considered the issue have been hesitant to recognize an independent tort for evidence spoliation for a variety of different reasons. See, e.g., Wilson v. Beloit Corp., 921 F.2d 765, 767 (8th Cir.1990) (no spoliation tort under Arkansas law); Edwards v. Louisville Ladder Co., 796 F.Supp. 966, 970 (W.D.La.1992) (existence of adequate remedies); Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 412-13 (Ala.1995) (no cause of action under facts of case but noting previous cases allowing jury instruction on the spoliation presumption); La Raia v. Superior Court, 150 Ariz. 118, 722 P.2d 286, 289 (1986) (existence of adequate remedies); Gardner v. Blackston, 185 Ga.App. 754, 365 S.E.2d 545, 546 (1988) (no spoliation tort under Georgia law); Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267, 270 (1995) (traditional negligence remedies sufficiently address the issue and remove the need to create an independent cause of action); Murphy v. Target Prods., 580 N.E.2d 687, 690 (Ind.Ct.App.1991) (no common-law duty for employer to preserve potential evidence for employee's benefit); Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky.1997) (existence of adequate remedies); Miller v. Montgomery County, 64 Md.App. 202, 494 A.2d 761, 767-68 (1985) (existence of adequate remedies); Panich v. Iron Wood Prods. Corp., 179 Mich.App. 136, 445 N.W.2d 795, 797 (1989) (no cause of action under facts of case); Brown v. Hamid, 856 S.W.2d 51, 56-57 (Mo.1993) (existence of adequate remedies and not appropriate on facts of case). 3

Evidence spoliation is not a new concept. For years courts have struggled with the problem and devised possible solutions. Probably the earliest and most enduring solution was the spoliation inference or omnia praesumuntur contra spoliatorem: all things are presumed against a wrongdoer. See, e.g. Rex v. Arundel, 1 Hob. 109, 80 Eng. Rep. 258 (K.B.1617) (applying the spoliation inference); The Pizarro, 15 U.S. (2 Wheat.) 227, 4 L.Ed. 226 (1817) (declining to apply the spoliation inference); Brown, 856 S.W.2d at 56 (noting that Missouri has recognized a spoliation inference for over a century). In other words, within the context of the original lawsuit, the factfinder deduces guilt from the destruction of presumably incriminating evidence.

This traditional response to the problem of evidence spoliation properly frames the alleged wrong as an evidentiary concept, not a separate cause of action. Spoliation causes no injury independent from the cause of action in which it arises. If, in the ordinary course of affairs, an individual destroys his or her own papers or objects, there is no independent injury to third parties. The destruction only becomes relevant when someone believes that those destroyed items are instrumental to his or her success in a lawsuit.

Even those courts that have recognized an evidence spoliation tort note that damages are speculative. See, e.g., Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829, 835 (1984); Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 103 Ill.Dec. 774, 501 N.E.2d 1312, 1320 (1986). The reason that the damages inquiry is difficult is because evidence spoliation tips the balance in a lawsuit; it does not create damages amenable to monetary compensation.

Our refusal to recognize spoliation as an independent tort is buttressed by an analogous line of cases refusing to recognize a separate cause of action for perjury or embracery. 4 Like evidence spoliation, civil perjury and civil embracery involve improper conduct by a party or a witness within the context of an underlying lawsuit. A number of courts considering the issue have refused to allow the wronged party to bring a separate cause of action for either perjury or embracery. See, e.g., Cooper v. Parker-Hughey, 894 P.2d 1096, 1100 n. 3 (Okla.1995) (listing a number of jurisdictions that refuse to recognize a separate civil cause of action for perjury); OMI Holdings, Inc. v. Howell, 260 Kan. 305, 918 P.2d 1274, 1296 (1996) (embracery); Trudell v. Heilman, 158 Cal.App.3d 251, 204 Cal.Rptr. 551, 553 (1984) (embracery disallowed unless plaintiff has no other means of redress); Hoston v. Silbert, 514 F.Supp. 1239, 1241 (D.D.C.1981) (embracery), rev'd on other grounds, 681 F.2d 876 (D.C.Cir.1982). These decisions rely on public policy concerns such as ensuring the finality of judgments, avoiding duplicative litigation, and recognizing the difficulty in calculating damages. Kessler v. Townsley, 132 Fla. 744, 182 So. 232, 232 (1938) (res judicata); OMI, 918 P.2d at 1290, 1293 (duplicative litigation and speculative damages). Similarly, recognizing a cause of action for evidence spoliation would create an impermissible layering of liability and would allow a plaintiff to collaterally attack an unfavorable judgment with a different factfinder at a later time, in direct opposition to the sound policy of ensuring the finality of judgments.

We share Ortega's concern that, when spoliation occurs, there must be adequate measures to ensure that it does not improperly impair a litigant's rights, but we disagree that the creation of an independent tort is warranted. It is simpler, more practical, and more logical to rectify any improper conduct within the context of the lawsuit in which it is relevant. Indeed, evolving remedies, sanctions and procedures for evidence spoliation are available under Texas jurisprudence. Trial judges have broad discretion to take measures ranging from a jury instruction on the spoliation presumption to, in the most egregious case, death penalty sanctions. See, e.g., Watson v. Brazos Elec. Power Coop., Inc., 918 S.W.2d 639, 643 (Tex.App.--Waco 1996, writ denied) (holding that trial court erred when it failed to give a spoliation instruction); Ramirez v. Otis Elevator Co., 837 S.W.2d 405, 412 (Tex.App.--Dallas 1992, writ denied) (noting that a trial court possesses wide discretion in awarding discovery sanctions); see also TEX.R. CIV. P. 215(b). As with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual case.

Ortega also argues that the failure to maintain Linda's medical records violated a statutory duty to...

To continue reading

Request your trial
193 cases
  • Patel v. OMH Medical Center, Inc.
    • United States
    • Supreme Court of Oklahoma
    • 27 Abril 1999
    ...denied, 127 N.J. 565, 606 A.2d 375 (1992); Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 615 N.E.2d 1037 (1993). 66. Trevino v. Ortega, 969 S.W.2d 950 (Tex.1998) and cases cited therein at 67. See, e.g. 21 O.S.1991 § 575. 1995 OK 35, 894 P.2d 1096. 64. BLACK'S LAW DICTIONARY 1257 (5th ed.1......
  • In re Advanced Modular Power Systems, Inc., Case No. 07-34646-H4-7 (Bankr. S.D. Tex. 8/31/2009)
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • 31 Agosto 2009
    ...Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex. App.—Houston [1st Dist] 1998, no pet.) (citing Trevino v. Ortega, 969 S.W.2d 950,954-55 (Tex. 1998)). 2. Bad Pursuant to Fifth Circuit precedent, for the Plaintiff to be entitled to such an adverse inference, the Plaintiff must......
  • In re Advanced Modular Power Systems, Inc.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • 16 Septiembre 2009
    ...Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex. App.-Houston [1st Dist,] 1998, no pet.) (citing Trevino v. Ortega, 969 S.W.2d 950, 954-55 (Tex.1998)). 2. Bad Pursuant to Fifth Circuit precedent, for the Plaintiff to be entitled to such an adverse inference, the Plaintiff mus......
  • Rizzuto v. Davidson Ladders, Inc.
    • United States
    • Supreme Court of Connecticut
    • 3 Octubre 2006
    ...but we cannot conclude, as a matter of law, that a plaintiff always will be able to do so. 4. See generally Trevino v. Ortega, 969 S.W.2d 950, 955 (Tex.1998) (Baker, J., concurring) (exploring scope of parties' common-law duty to preserve evidence relevant to pending 5. "A first party [defe......
  • Request a trial to view additional results
20 books & journal articles
  • Business Litigation
    • United States
    • James Publishing Practical Law Books Texas Small-firm Practice Tools. Volume 1-2 Volume 1
    • 5 Mayo 2022 it).] §4:84 Spoliation “Spoliation” is the intentional destruction of tangible evidence relevant to a case. [ Trevino v. Ortega , 969 S.W.2d 950 (Tex. 1998).] When spoliation is established, the trier of fact may presume that the destroyed evidence was unfavorable to the party responsibl......
  • Discovery
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2016 Part VIII. Selected Litigation Issues
    • 27 Julio 2016 the Plaintiff. Ortega v. Trevino , 938 S.W.2d 219, 223 (Tex. App.— Corpus Christi 1997, writ granted) rev’d by Trevino v. Ortega , 969 S.W.2d 950, 93 (Tex. 1998). In Ortega , the trial court implicitly recognized the tort of intentional and negligent spoliation of evidence. However, in 1......
  • Discovery and Your Expert
    • United States
    • James Publishing Practical Law Books Qualifying & Attacking Expert Witnesses
    • 4 Mayo 2022
    ...would have been entitled to if tire had been available, less the insured’s settlement with the tire manufacturer. In Trevino v. Ortega , 969 S.W.2d 950 (Tex. 1998), the Texas Supreme Court also refused to recognize a separate tort of spoliation. The court found that when evidence is destroy......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2016 Part VIII. Selected Litigation Issues
    • 27 Julio 2016
    ...§§31:3.A.4.b, 31:3.B.1 Trevino v. Kent County , 936 S.W.2d 488, 493 (Tex. App.—Amarillo 1996, writ denied), §31:3.B.3 Trevino v. Ortega , 969 S.W.2d 950 (Tex. 1998), §40:11.G Trevino v. Ramos , 197 F.3d 377 (5th Cir. 1999), §§3:13.C.1, 31:6.B Trevino v. Southwestern Bell Tel. Co. , 582 S.W.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT