The spoliation of evidence doctrine concerns the intentional destruction of relevant evidence by a party. In the event that relevant evidence is spoiled (i.e., intentionally destroyed), the court may exercise its discretion to impose sanctions on the responsible party. The seriousness of the sanctions that a court may impose depends on the consideration of: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3), whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. Exclusion of spoiled evidence is a drastic sanction the courts generally try to avoid. However, the court may issue an instruction that will allow the jury to infer that the party spoiled the evidence because the evidence was unfavorable to the party’s case.

When a seaman is injured, the injured areas of his body become evidence. For example, the cervical and/or lumbar spine of a seaman complaining of neck and/or back pain is the only objective evidence of his injuries. Surgery irreparably alters and/or destroys the allegedly damaged area. This begs the question: Does a seaman spoil the evidence of his injury by electing to proceed with surgery prior to appearing for an Independent Medical Examination (“IME”)?
In Menges v. Cliffs Drilling Company, 2000 WL 765082 (E.D. La. 2000), Chief Judge Sarah Vance addressed this issue when she denied a request by an employer to invoke the Spoliation of Evidence Doctrine against an injured party that had elected to undergo surgery. Specifically, Cliffs sought to exclude evidence of Mr. Menges’ post-accident back surgery or obtain an adverse jury instruction because Mr. Menges had undergone a post-accident lumbar surgery prior to undergoing an IME. The surgery occurred before there was any litigation between the parties. However, when Mr. Menges agreed to undergo lumbar surgery, he arguably knew that the condition of his lower back would be pertinent to any future litigation. Moreover, Mr. Menges was represented by counsel when he underwent the surgery, and his counsel paid for the surgery. Yet, Judge Vance held that even if Mr. Menges had a duty to notify Cliffs of his surgery so that he could be examined by an independent medical examiner, breach of the duty to notify did not amount to spoliation of evidence. Additionally, Judge Vance held that Mr. Menges did not intentionally destroy evidence by undergoing surgery. She highlighted the fact that Mr. Menges provided Cliffs with full access to his medical records prior to the surgery. As such, she noted that Cliffs had ample opportunity to investigate Mr. Menges’ condition and to require an IME before he underwent surgery.

Based on Judge Vance’s ruling in Menges, it is highly unlikely that the Spoliation of Evidence Doctrine will apply to an injured party who proceeds with a surgery prior to an IME. However, it is important to note that there is jurisprudence holding a plaintiff and his attorney can be sanctioned for their failure to appear at scheduled IMEs. Therefore, if there is even the faintest possibility that that an injured party will undergo a future surgery, an employer should promptly investigate the party’s condition and probably schedule an IME as soon as possible.