The opinion of the court was delivered by: Nancy J. KOPPEUnited States Magistrate Judge
Before the Court is Defendant American Casualty Co. of Reading, PA's Motion to Dismiss Plaintiff's Claims of Cervical Spine Injury on the Grounds of Spoilation of Evidence (#30). The Court has considered the Defendant's Motion (#30), the Plaintiff's Response (#36), and the Defendant's Reply (#39).
This dispute arose from a motor vehicle accident that occurred on July 11, 2005. The Plaintiff was allegedly driving a truck owned by his employer when he ran out of gas. The Plaintiff pulled his truck as far to the right as he could and turned on his hazard lights. He could not pull onto the shoulder, however, due to freeway construction. The Plaintiff contacted his employer and proceeded to wait by the side of the road. The Plaintiff was then rear-ended by a late-model Dodge Ram pickup truck. ... ...
In March 2006, the Plaintiff notified the Defendant that he would be making an uninsured motorist claim under his employer's policy with American Casualty. On July 11, 2011, the Plaintiff filed an Amended Complaint in the Eighth District Court in Clark County, Nevada, alleging breach of contract. The Defendant removed the case on December 23, 2011.
Among the Plaintiff's claims are that he suffered serious and disabling injuries, including cervical spine injuries. On November 21, 2012, the Defendant deposed the Plaintiff. During the deposition, the Plaintiff explained that his treating doctor had indicated that the Plaintiff's pain was not improving because his injuries were permanent. The Plaintiff also testified that he had some new x-rays taken at his last chiropractic visit which showed that his C2 vertebra was still significantly out of place, even after years of treatment. The Plaintiff stated he intended to give those x-rays to the Defendant's neurosurgery expert, but was unable to do so because the expert was in surgery when he attempted to give the x-rays over.
The Defendant has since made numerous attempts to collect those x-rays. However, upon requesting the x-rays from the facility in which they were taken, the Defendant learned that the Plaintiff had taken the only copy of the x-rays from the facility sometime before his deposition on November 21, 2012. The Plaintiff claims he took the x-rays with the intent of providing them to the Defendant either though its expert or at the deposition. However, to date, the Plaintiff has not produced the x-rays. The Plaintiff indicates that he has now misplaced the x-rays, and continues to look for them. The Plaintiff has also indicated that he is willing to submit to new x-rays.
Based on the assumption that the x-rays are permanently misplaced, the Defendant requests that the Court Dismiss the Plaintiff's cervical spine injury claims entirely or, alternatively, allow an adverse inference that the x-rays would show that the Plaintiff's condition has improved and preclude the Plaintiff's treating medical providers from testifying regarding the contents of the lost x-rays, that the Plaintiff's condition has worsened, and that the Plaintiff's condition will require future medical care. Docket No. 39, at 2. Additionally, the Defendant requests costs and fees associated with preparing its motion. Id.
The Defendant asserts that the lost set of x-rays are critical evidence because without them, the Plaintiff cannot prove that he is permanently injured.
I. Request for Dismissal of Plaintiff's Cervical Spine Injury Claims due to Spoilation
Spoliation is the "destruction or material alteration of evidence or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999) (citing Black's Law Dictionary 1401 (6th ed.1990)). The Federal Court has the ability to impose sanctions for spoliation arising from the court's "inherent power to control the judicial process and litigation, but the power is limited to that necessary to redress conduct 'which abuses the judicial process.'" Silvestri v. General Motors Corporation, 271 F.3d 583, 590 (4th Cir.2001). However, prior to imposing sanctions, the court must first make a finding of fault. Id. Then, the court should fashion a remedy which serves "the prophylactic, punitive, and remedial rationales underlying the spoilation doctrine." Id. (quoting West, 167 F.3d at 779).
With respect to a party's duty to preserve material evidence, even if the party does not "own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence." Id. at 591 (citing Andersen v. Schwartz, 687 N.Y.S.2d 232, 234--35 (N.Y.Sup.Ct.1999)); see also Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 593 F.Supp. 1443, 1455 (C.D. Cal. 1984) ("While a litigant is under no duty to keep or retain every document in its possession once a complaint is filed, it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is ...