Wе hold that an employee whose injuries are covered by the Worker's Compensation Act has no claim against the employer for spoliation of evidence related to that incident. The legislature is, of course, free to provide a different rule if it concludes otherwise.
Facts and Procedural History
Midwest Material Services, Inc. provided environmental waste services to its customers, including environmental cleanup and the handling and transfer of hazardous materials. In the spring of 2000, Midwest was engaged to clean a large holding tank
On May 5, 2000, William Darling, one of Midwest's owners, and Froman began emptying the tank using an electric pump, hoses, and other equipment belonging to Midwest. The tank was nearly empty when Darling noticed air bubbles in the hose and instructed Froman to turn off the pumр. Shortly after Froman switched off the pump there was an explosion which caused fatal burns to Froman.
After receiving medical treatment for minor burns, Darling returned to the Ash-land site where he was interviewed by the South Bend Police and Fire Departments. Darling told the South Bend Police that he did not know the brand name of the pump but thаt it was "explosion-proof." At Ash-land's suggestion Darling then removed Midwest's equipment and debris from the explosion site. Three days after the explosion, Indiana Occupational Safety and Health Administration ("IOSHA") Officer Debbie Rauen contacted Darling and asked whether he still possessed any of the equipment or debris. Darling cоnfirmed that he did, and Rauen instructed him not to dispose of it. When Rauen and South Bend Fire Department officials interviewed Darling four days later, he reported that everything he had collected from the Ashland site had been thrown away.
Froman's estate filed a wrongful death complaint against Midwest and "John Doe Company' as dеsigner, manufacturer, and distributor of the pump. The Estate later amended the complaint to add claims against Midwest for negligent and intentional spoliation of evidence and punitive damages. Midwest moved to dismiss both the wrongful death claim and the spoliation claim. The trial court dismissed the wrongful death claim after the Estаte conceded that Midwest was Froman's employer for purposes of the Worker's Compensation Act ("WCA"). The WCA therefore provided the exclusive remedy for this industrial accident and barred a tort claim against Midwest. The trial court denied Midwest's motion to dismiss the spoliation of evidence and punitive damages claims but certified its order for interlocutory appeal. The Court of Appeals affirmed. Glotzbach v. Froman,
Spoliation of Evidence
Midwest contends that Indiana law does not permit a claim against an employer for spoliation of evidence relating to a claim by its employee. Spoliation of evidence is " 'the intentionаl destruction, mutilation, alteration, or concealment of evidence."" Cahoon v. Cummings,
A frequently debated issue is whether an independent tort clаim may lie against the party accused of destroying the evidence. In Gribben v. Wal-Mart Stores, Inc., this Court, answering a certified question from the United States District Court, held that Indiana common law does not recognize an independent cause of action for either intentional or negligent "first-party" spoliation of evidenсe, .e. spoliation by a party to the underlying claim.
A cause of action for third-party spoliation was recognized in Thompson v. Owensby,
In Murphy v. Target Products, the Court of Appeals had earlier held "that at least in the absence of an independent tort, contract, agreement, or special relationship imposing a duty to the particular claimant, the claim of negligent or intentional interference with a person's prospective or actual civil litigation by the sрoliation of evidence is not and ought not be recognized in Indiana."
In the case at bar, the Court of Appeals perceived the princiрal issue as one of duty to preserve the evidence. The Court of Appeals therefore reviewed the three factors set forth in Webb v. Jarvis,
The Estate, relying on Thompson, argues that a special relationship sufficient to create a duty to preserve the evidence was created by Midwest's knowledge of Froman's situation and the circumstances surrounding the accident. Specifically, the Estate points out that I0OSHA instructed Midwest not to dispose of the debris collected from the explosion site and that Darling had witnessed the explosion and knew that Froman had beеn severely injured. We think neither of these allegations distinguishes this case from Murphy. First, an employer will virtually always be aware of an injury occurring in the workplace. If that knowledge were sufficient to
I0SHA's instruction to Darling to retain the debris did not create the necessary special relationship contemplated in Murphy to establish a duty. The Estate argues that IOSHA's instruction should produce the same result as in Bondu v. Gurvich, where the Florida District Court of Appeal held that a plaintiff could maintain a third-party spoliation claim against a hospital because a statute required all hospitals to maintain and make available to рatients their medical records.
The Estate, citing again to Thompson, next argues that the foreseeability of harm caused by the failure to retain the pump supports the recognitiоn of a duty in this case. The Estate contends that an environmental services company should expect that an "explosion-proof" piece of equipment in use at the time of an explosion is reasonably suspect as a cause of that explosion. We agree that an employer would, or аt least should, recognize that debris from an explosion may be relevant to a product liability claim, even if the employer assumes that worker's compensation will be the sole remedy against the employer. But the relationship of the parties, not foreseeability, was the central factor in Thompson. In thаt case, the plaintiff, a six-year-old girl, was mauled by a dog when it broke free from a cable the owner had used to restrain it. Thompson,
Finally, and most importantly, as in Gribben we think the policy considerations are the controlling factor in refusing to recognize spoliation as a tort under these circumstances. The Estate argues that policy dictates allowing such a tort as to Specifically, the third-party spoliation. Estate claims that recognizing this cause of action would further serve the deterrent policy embodied in the penal code, Indiana Code section 35-44-38-4 (2004). That statute provides that "a person who ... alters, damages, or removes any record, document, or thing, with the intent to prevent it from being produced or used as evidencе in any official proceeding or investigation . commits obstruction of justice." The Estate also points out that the existing remedies cited in Gribben are not available to plaintiffs faced with the spoliation of evidence by third parties. We agree that evidentiary inferences are not available as a remedy for or deterrent to third-party spoliation. Many of the other remedies remain applicable, however. Criminal sanctions apply equally to third parties and first parties. Similarly, sanctions under the Indiana Rules of Professional Conduct are available if attorneys for the third party are involved in the misconduct. Courts аlso have the power to issue contempt sanctions against non-parties who frustrate the discovery process by suppressing or destroying evidence. Ind. Trial Rule 37. Perhaps most significantly, the employer is entitled to recover some of its worker compensation benefits if the employee can establish a product liability claim. See Ind.Code § 22-38-2-18. It is in the employer's interest to preserve evidence that may aid in pursuing these sub-rogation rights against the manufacturer.
The disadvantages we identified in first-party spoliation claims remain concerns as to third-party claims. Proving damages in a third-party spoliation claim becomеs highly speculative and involves a lawsuit in which the issue is the outcome of another hypothetical lawsuit. The jury must somehow find all the elements of a product liability case, immediately determining whether a product defect caused the injury, as opposed to inadequate maintenance, or other intervening evеnts. The jury would be asked to determine what the damages would have been had the evidence been produced and what the collecti-bility of these damages would have been. We think this exercise often could properly be described as "guesswork." Petrik v. Monarch Printing Corp.,
In sum, we conclude that the problems inherent in recognizing spoliation claims under these circumstances outweigh any perceived advantages.
Conclusion
The order of the trial court denying Midwest's motion to dismiss is reversed. The case is remanded with instruction to dismiss the Estate's claim for spoliation.
Notes
. See, eg., Martinez v. Abbott Labs.,