Opinion
CIVIL ACTION NO. 02-993, SECTION "L"(3).
July 11, 2003.
MINUTE ENTRY
This matter arises out of injuries sustained by plaintiff Howard Nowlin ("Nowlin") on June 11, 2001 during the course and scope of his employment as a welder by Bollinger Marine Fabricators, Inc. ("Bollinger"). On that date, Nowlin alleges that he was injured when he received an electrical shock from a welding machine manufactured by defendant Miller Electric Mfg. Co. ("Miller"). Nowlin and his spouse bring the instant action pursuant to the Louisiana Products Liability Act claiming that the welding machine was unreasonably dangerous either because of a defective design or because of inadequate warnings. Bollinger and its insurer, the American Longshore Mutual Association intervened in this matter to assert their rights to recover compensation and medical payments paid to the plaintiff.
The machine which caused the plaintiff's injuries is a Miller model SRH-444. Plaintiffs contend that the machine was unreasonably dangerous because it lacked an enclosed switch that could have prevented any electrical arcing from leaving the switch and harming the plaintiff. The open switch alleged to have been installed on the plaintiff's machine has been identified as an Arrow Hart 80771 model. During discovery in this matter, the parties learned that Bollinger had removed the switch on the machine in question, discarded it after the plaintiff's accident, and replaced it with another switch.
Trial in this matter is scheduled to begin on July 14, 2003. Pursuant to the Court's directives, the parties have submitted the following pretrial motions: (1) Plaintiff's Motion in Limine Regarding Collateral Source Payments; and (2) Defendants' Motion in Limine to Establish Adverse Inference.
Specifically, plaintiffs move the Court to exclude any reference in the presence of the jury of the fact that the plaintiff has received any workers' compensation benefits, social security benefits, or long-term disability benefits because such matters are inadmissible under the collateral source rule. Defendants, on the other hand, contend that the jury should learn about the source of these payments because the evidence goes to the credibility of Bollinger's employees who are expected to testify in this matter. It is the defendants' position that Bollinger discarded an essential piece of evidence because it wished to strengthen its position as intervenor in the case so it could recover any medical or compensation payments made to the plaintiff. Defendants ask this Court for the following relief: (I) to present evidence to the jury that Bollinger discarded the switch from the welder in question; (2) to allow the defendants to argue that Bollinger's actions were motivated by a desire to cease payment of workers' compensation payments to Nowlin; and (3) to give the jury an adverse inference instruction because of spoliation of evidence allowing the jury to infer that if the switch from Nowlin's welder were not produced, it was not an open switch as claimed by plaintiffs.
The collateral source rule prohibits any evidence being presented to the jury indicating that a personal injury plaintiff is receiving collateral benefits, such as workers' compensation, social security, or disability benefits. See Simmons v. Hoegh Lines, 784 F.2d 1234, 1237 (5th Cir. 1986). The purpose of the rule is to prevent the jury from being improperly influenced or distracted in its determination of liability or damages by evidence that the plaintiff was receiving some form of compensation. Id. The Simmons court, however, did note that evidence of collateral payments may be admissible "[i]f there is little likelihood of prejudice and no strong potential for improper use, and a careful qualifying jury instruction is given, then receipt of compensation benefits may be admissible for the limited purpose of proving another matter." Id. In considering the potential prejudice in this case, the Court must examine the defendants' request for a spoliation or adverse inference charge.
A charge for spoliation of evidence requires a showing that a party acted in bad faith. See Vick v. Texas Employment Commision, 514 F.2d 734, 737 (5th Cir. 1975). The defendants' sole assertion of bad faith arises out of the testimony of Bollinger employee Joseph Robin who testified by deposition that he handled the repairs of welding machines at the shipyard. During his deposition, Robin experienced some confusion as to whether an exemplar Arrow Hart 80771 switch he was shown during the deposition was similar to the one he removed from the machine at the time of the plaintiff's accident. At first, Robin denied that the exemplar was similar. Later, following a break in the deposition, Robin retrieved a spare Arrow Hart 80771 switch from the offices of the shipyard's superintendent and testified that he removed a similar switch from the machine in question. Bollinger responds that it did not attempt to influence Robin's testimony during the break in the deposition.
An inference of bad faith is simply too great an analytical leap for this Court to make based on the facts presented. The evidence indicates that Bollinger was not aware that the plaintiff was contemplating this lawsuit at the time the switch was discarded. The evidence suggests that Nowlin returned to work for a period of time following his accident and did not pursue litigation until his physical condition deteriorated a month later. Defendant argues, however, that Bollinger should have preserved the switch because it was aware that it would be paying workers' compensation benefits. However, this argument is without merit because the switch was not necessary for a determination that Nowlin was eligible for compensation benefits.
Finally, the Court finds that an adverse inference instruction would be prejudicial to the plaintiffs' case when there is no evidence to suggest that Nowlin played any part in the discarding of the switch. Simply because the plaintiffs and the intervenor may be aligned in some way does not suggest that the actions of the intervenor should so prejudice the plaintiffs' case particularly when no showing of bad faith has been made. See, e.g., Toste v. Lewis Controls, Inc., 1996 WL 101189 (N.D. Cal. Feb. 27, 1996) (holding that an adverse inference instruction was inappropriate despite employer/intervenor's destruction of evidence where plaintiff/employer was blameless and would have been prejudiced by inclusion of adverse inference instruction).
Having considered the issue of spoliation and adverse inferences, the Court now turns to the collateral source issue. The Court finds that allowing the defendants to present evidence of compensation payments to the jury will prejudice the plaintiffs' case and that the limited exceptions to the collateral source rule are not applicable in this case. This ruling, however, does not mean that the defendants should be prevented from presenting evidence that the switch in question no longer exists. That is a relevant issue in this case. All that is precluded is any mention of Bollinger's motivation and any adverse inferences to be drawn from such omission.
Accordingly, IT IS ORDERED that the plaintiff's Motion in Limine Regarding Collateral Source Payments is GRANTED. IT IS FURTHER ORDERED that defendants' Motion in Limine to Establish Adverse Inference is GRANTED IN PART AND DENIED IN PART. The motion is granted so far as it permits the defendant to present evidence that Bollinger discarded the switch at question in this case. The motion is denied to the extent it seeks to present evidence of collateral payments or an adverse inference that the loss of the switch should reflect negatively against the plaintiff.