“Courts in this circuit, have found that a plaintiff has intentionally destroyed evidence of his presurgical medical condition when a defendant has put the plaintiff on notice of its right to request an IME in advance of an invasive procedure prior to an invasive procedure being performed. Additionally, ‘bad faith’ in the context of spoliation has generally been found to be destruction for the purpose of hiding adverse evidence.
“The evidence shows that Burnett did not comply with the multiple requests for the IME. However, the question is whether Burnett knew of the requests but ignored them, or whether his lawyer refused to communicate it to Burnett. Burnett’s lawyer did not provide any explanation as to why he failed to produce his client for an IME in a two-year period. According to the evidence, Burnett’s counsel slow walked disclosure of Burnett’s medical record and only permitted an IME after all the surgeries were performed. For example, an email dated December 4, 2021, requested Burnett’s HIPPA forms and medical records but suggests that records were not produced until February 10, 2022….
“As late as June 28, 2022, while the claimants in limitation were continuing their request for an IME, John Grinnan of Arnold and Itkin responded that he was confused because the claimants’ damages were not at issue in the limitations portion of the trial, and that it was an already debunked theory by an earlier case in this Court. He further commented, ‘let me know if you want to forego limitations and go back to state court where the damages are the issue.’ In response to an explanation as to why an IME was appropriate, Grinnan responded that because the matter is a limitations case, his clients’ damages are not at issue during this phase of the trial and an IME was not appropriate. Grinnan thereafter proposed again a stipulation to return to state court and only then would he confer on the IME issue. Burnett’s lawyer never intended on producing him for an IME and would only permit a records review….
“It is clear that Burnett’s counsel failed to uphold his duty of candor to the Court. The motion to compel an IME was filed on July 13, 2022, and the Court’s order granting the motion was issued on September 2, 2022. This means that from the time the motion was filed, and up until a decision was made, Burnett nor his counsel informed the Court that a surgery was scheduled, nor did they inform the Court in a timely manner that the surgery and subsequent ‘corrective’ surgeries had occurred after the Court made its decision. Burnett and his counsel’s deliberate and intentional disregard of this Court’s Order and their duty of candor, warrants sanctions….
“In this case, although no bad faith finding is required because this Court’s discovery order was violated, actual bad faith still exist by Mr. Burnett and his Counsel J. Kyle Findley for the reasons assigned above. The Court finds that evidence of the cost of the 5 level lumbar laminectomy with fusion amounted to $459,735.00 and should be excluded and should not be recovered as a sanction for the aforementioned misconduct. Additionally, evidence of the costs of the post-laminectomy procedures which amounts to $377,551.87, should be precluded as a recoverable damage. The Court further notes that the cost of Burnett’s obesity surgery which is a precursor to the lumbar surgery cost of $142,828.00, and should be subject to an adverse inference as the procedure occurred after request of counsel but not this Court’s order. The total of costs for which Burnett should be precluded from recovering based upon the evidence in the record is $837,286.87. The Court does not recommend that the THOR Interests be reimbursed for the IME examination. However, the Court does recommend that Attorney’s Fees for the filing of the subject motion should be granted.”
All Coast v. Shore Offshore Services, No.21-258, Rec. Doc. 491 (E.D.La. July 11, 2023).