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Trevio v. Ortega6/5/1998
On Application for Writ of Error to the Court of Appeals for the Thirteenth District of Texas
Argued on December 3, 1997
Justice Baker filed a Concurring opinion.
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. 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 Treviño 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. Discovering that Linda's medical records from the birth had been destroyed, Ortega then sued Dr. Treviño 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 Treviño 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 Treviño's negligence.
Responding to Ortega's spoliation suit, Treviño specially excepted and asserted that Ortega failed to state a cause of action. The trial court sustained Treviño'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 Cour
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