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Burton v. Walgreen Co.

United States District Court, D. Nevada

July 10, 2015

RANDOLPH SCOTT BURTON, Plaintiff(s),
v.
WALGREEN CO., dba WALGREENS, et al., Defendant(s).

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is plaintiff Randolph Burton's motion for sanctions for willful spoliation of relevant evidence. (Doc. # 27). Defendant Walgreen Company, dba Walgreens (hereinafter "Walgreens") filed a response (doc. # 28), and plaintiff filed a reply (doc. # 30).[1]

I. Background

This is a personal injury action. Plaintiff was a customer of Walgreens' pharmacy for the purpose of filling his prescriptions for medications to treat high blood pressure. (Doc. # 27). Plaintiff had a prescription for Diovan, a medication that treated his high blood pressure. Plaintiff's prescription instructed him to take one tablet of Diovan by mouth daily.

On March 3, 2012, one of Walgreens' pharmacists improperly filled plaintiff's prescription. Walgreens admits that the pharmacist misfilled plaintiff's prescription with a mix of Diovan and Lithium pills. (Doc. # 28 at 5). The two medications were different shaped pills, but the same color.

Plaintiff did not notice the difference in the pills and continued to take one pill per day, as instructed. At some point plaintiff's wife noticed that the pills in plaintiff's prescription bottle did not match one another. Plaintiff's wife returned the misfilled medications to Walgreens. A Walgreens employee, Melissa Ingleheart, "looked into the bottle, saw capsules as well as tablets, noted it looked like Lithium, and double checked the pill on her computerized product information" to confirm that they were Lithium pills. (Doc. # 27 at 3).

Plaintiff began to experience numbness and weakness in his left hand, and he checked in to Boulder City hospital on March 14, 2012. (Doc. # 27 at 4). Plaintiff's wife informed hospital staff that plaintiff had improperly taken medication that looked like lithium. Plaintiff's emergency room records show that he potentially took one 300 milligram lithium pill per day for five days. Physicians at the hospital diagnosed plaintiff with an adverse reaction to the improperly dispensed Lithium. Plaintiff and defendant believe that the hospital learned the details of his accidental lithium dosage from communications with Walgreens' pharmacists.

Soon after his visit to Boulder City hospital, plaintiff followed up with his family physician, who referred plaintiff to Dr. Jonathon Sorelle of the Minimally Invasive Hand Institute. (Doc. # 27 at 4). When plaintiff's symptoms worsened in subsequent months, Dr. Sorelle conducted nerve tests on plaintiff. Dr. Sorelle diagnosed plaintiff with carpal tunnel syndrome and polyneuropathy, as a result of plaintiff's improper ingestion of Lithium. (Doc. # 27 at 4).

On June 22, 2012, Dr. Sorelle performed hand and arm surgery on plaintiff. Plaintiff states that he still suffers "residual pain and stiffness as a result of this incident." (Doc. # 27 at 4). Defendant disputes the causation of plaintiff's arm numbness, and maintains that plaintiff was never exposed to a toxic dose of lithium. (Doc. # 28 at 5).

Plaintiff filed suit on March 14, 2013, in the Eighth Judicial District Court for Clark County, Nevada, asserting various negligence claims against Walgreens. (Doc. # 1-1). During discovery, plaintiff asked Walgreens to release its policies for dealing with erroneously dispensed prescriptions and returned medications. Plaintiff also asked defendant to produce the bottle with its contents intact so that he may test the pills inside to determine if some pills were in fact lithium. Defendant informed plaintiff that it had destroyed the bottle and its contents in accordance with store policy.

Plaintiff filed the instant motion for spoliation sanctions asking the court to strike defendant's answer and affirmative defenses on liability and causation, and allow a bench trial to determine only plaintiff's damages. In the alternative, plaintiff requests an adverse inference jury instruction. Plaintiff also asks the court to find that the unavailable evidence would have supported defendant's negligence, preclude defendant's evidence that controverts the adverse inference, and award plaintiff attorneys' fees and costs he incurred in preparing the instant motion for sanctions. (Doc. # 27 at 2).

II. Legal Standard

Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. United States v. Kitsap Physicians Servs., 314 F.3d 995, 1001 (9th Cir. 2002) (citing Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991)) (parties engage in spoliation as a matter of law only if they had some notice that the documents were potentially relevant to the litigation before they were destroyed). A party must preserve evidence it knows or should know is relevant to a claim or defense of any party, or that may lead to the discovery of relevant evidence. Kitsap, 314 F.3d at 1001; In re Napster, 462 F.Supp.2d 1060, 1067 (N.D. Cal. 2006).

A district court has two sources of authority to sanction a party who has despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Federal Rule of Civil Procedure 37 against a party who "fails to obey an order to provide or permit discovery." Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (citing Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1337 (9th Cir. 1985); Fed.R.Civ.P. 37(b)(2)(C). Federal courts sitting in ...


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