Lips v. Scottsdale Healthcare Corp. (8/25/2009)
Arizona Court of Appeals Division One Holds That Arizona Law Does Not Recognize an Independent Tort for Intentional or Negligent Spoliation of Evidence in a Medical Products Liability Case.
Surgeons implanted a prosthetic hip into Lips at a Scottsdale Healthcare facility. A subsequent surgery was later required to remove and replace pieces of the prosthetic. After the second surgery, a doctor examined the removed parts of the prosthetic and diagnosed a “failed prosthesis.” Lips requested Scottsdale Healthcare to keep the removed portions of the prosthesis, but Scottsdale Healthcare lost or destroyed the material. Lips brought suit against the manufacturer of the prosthetic hip and, in agreement with the manufacturer, filed a suit against Scottsdale Healthcare for spoliation of evidence. The trial court dismissed the claim, finding that Arizona does not recognize an independent tort for spoliation and that any harm was speculative because Lips could use other evidence to prove her case against the manufacturer.
The Court of Appeals affirmed. First-party spoliation is spoliation that occurs between the parties of an action; a claim for third-party spoliation is made against a “stranger to the litigation.” First, the Court held that Lips could not sustain a claim for intentional third-party spoliation. The Court explained that Arizona had never recognized an independent tort for first- or third-party spoliation. In addition, the Court reviewed cases from other states and concluded that Lips would not be able to prove a claim of intentional spoliation because Lips lacked evidence that Scottsdale Healthcare intended to disrupt or defeat the claim against the prosthetic manufacturer. Second, the Court declined to recognize a cause of action for negligent – as opposed to intentional – spoliation, reasoning that it would not make sense to prohibit a claim for intentional spoliation but allow one for negligent spoliation.
Finally, Lips urged the Court to allow standard negligence or prima facie tort claim to proceed, although she had not argued to the trial court that such a claim was stated in the complaint. The Court held that Lips waived this argument by failing to assert it in the trial court.
Judge Thompson authored the opinion; Judges Portley and Swann concurred.