Lips v. Scottsdale Healthcare Corporation (CA1 8/25/09)

This case holds that there is no cause of action for “third-party” spoliation.

Lips got a hip replacement at Scottsdale/Osborn. Part of it broke, requiring its replacement. She wanted to sue its manufacturer but the hospital had thrown the old hardware away, so she sued the hospital for spoliation.

The hook that makes this publishable, apparently, is that there is no Arizona case on third-party spoliation, though a number of cases hold that there is no claim for spoliation by a defendant. The opinion takes three pages to explain this.

It then spends several more pages briefing cases from other jurisdictions on third-party spoliation pro and con before abruptly remembering that Arizona doesn’t have the tort of spoliation. But it adds that Scottsdale didn’t, anyway, intend to disrupt plaintiff’s litigation, which is what courts that have recognized the tort require. In other words, even if the first fourteen pages of the opinion are wrong we can resolve the case in one sentence.

Lips also wanted the court to recognize a tort of negligent spoliation, which nobody else has and which this court didn’t, either.

Finally, Lips claimed that she alleged “prima-facie tort” (Restatement 870 – intentionally harming someone is a tort even if it isn’t any tort), though the allegation evidently wasn’t prima facie since she had to argue about whether her Complaint included it. It only takes the opinion a couple of pages to decide that she hadn’t raised that argument below.

The opinion is a bit odd. It is as if someone were trying to be as middle-of-the-road as possible, covering their you-know-what in case of criticism (from the Supreme Court on review?), writing an opinion without actually expressing an opinion.