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Malone v. Foster6/5/1998
On Application for Writ of Error to the Court of Appeals for the Fifth District of Texas
Argued on December 3, 1997
Justice Enoch delivered the opinion of the Court, in which Chief justice Phillips, Justice Gonzalez, Justice Hecht, Justice Spector, justice Owen, Justice Abbott, and Justice Hankinson join, and in which justice Baker joins in Parts II and III.
Justice Baker filed a Concurring opinion.
In this case, the Malones ask us to recognize an independent cause of action for intentional or negligent spoliation of evidence by parties to litigation. The court of appeals declined to recognize such a cause of action. 956 S.W.2d 573, 582. In Treviño v. Ortega, issued today, we held that Texas does not recognize an independent cause of action for evidence spoliation by persons who are parties to the underlying lawsuit. ___ S.W.2d ___ (Tex. 1998). Because we also reject the Malones' other contentions on appeal, we affirm the court of appeals' judgment.
On December 17, 1990, James M. Malone went to Baylor University Medical Center complaining about difficulty in moving his extremities. Drs. Christopher Foster and Bill Christensen admitted him to the hospital and initially diagnosed Malone with a kidney infection. On December 18, Malone fell in his room. In compliance with hospital policy, Nurse Connie Chason filled out an incident report. Malone claims that he told her he fell because he could not move his legs, but Chason does not recall this statement. In accordance with its incident report retention policy, Baylor destroyed the incident report. Dr. Foster did not find out that Malone could not move his legs until December 20. At this point, Dr. Foster referred Malone to a neurosurgeon. The neurosurgeon determined that Malone had a spinal epidural abscess and required immediate surgery. After surgery, Malone was a quadriplegic.
James M. Malone, James D. Malone, Milton C. Malone, Phillip G. Malone and Mary E. Johnson (collectively the "Malones") sued Drs. Foster and Christensen and Baylor University Medical Center (collectively "Baylor") for medical malpractice and evidence spoliation. The Malones brought both claims in the same suit.
Baylor moved for summary judgment asserting, among other things, that evidence spoliation is not a cognizable cause of action in Texas. The trial court granted partial summary judgment d medical malpractice action, the jury reached a take-nothing verdict and the trial court rendered judgment on the verdict. The court of appeals affirmed the trial court's judgment.
I.
The Malones assert that Texas recognizes a cause of action for evidence spoliation. As noted above, we held today in Treviño that evidence spoliation is not a separate tort in Texas. ___ S.W.2d at ___.II.
The Malones also assert that the trial court erred by excluding Sherri Watkins's testimony about the destruction of the hospital incident report. Watkins is an administrator at Baylor University Medical Center and would have testified about Baylor's policy of destroying incident reports after six months. The Malones contend that her testimony would have allowed the jury to infer that the incident report was unfavorable to Baylor. The Malones must show that the trial court erred in excluding Watkins's testimony and that the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1; McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992).
Like any other question of admissibility of evidence, the exclusion or admission of Watkins's testimony is an issue within the trial court's discretion. See Treviño, ___ S.W.2d at ___; Tex. R. Civ. Evid. 104(a) (repealed
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