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Craig Kendall v. Bausch & Lomb Incorporated and

March 17, 2011

CRAIG KENDALL,
PLAINTIFF,
v.
BAUSCH & LOMB INCORPORATED AND
LASER VISION CENTERS, INC.,
DEFENDANTS.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

ORDER DENYING BAUSCH & LOMB'S MOTION TO EXCLUDE TESTIMONY AND DENYING MOTION TO DISMISS PLAINTIFF'S CLAIMS AND CROSS-CLAIMS OF DEFENDANT LASER VISION CENTERS, INC.

INTRODUCTION

Defendant Bausch & Lomb ("B&L") filed a two-part motion to exclude the testimony of plaintiff's witnesses, Dr. David Hardten and Dr. Bormes, and to dismiss plaintiff's claims and the cross-claims of defendant Laser Vision Centers, Inc. ("LVCI"). (Docket 298). Following briefing, the issue is ripe for resolution by the court. For the reasons stated below, defendant's motions are denied.

BACKGROUND

Dr. Bormes was plaintiff's LASIK surgeon and Dr. Hardten became one of plaintiff's treating physicians following development of plaintiff's DLK.*fn1 Dr. Hardten subsequently was designated as one of plaintiff's expert witnesses.

(Docket 156). Dr. Hardten's opinions as an expert witness are thoroughly documented in a previous order and need not be restated. (Docket 307). B&L now moves to exclude the testimony of Dr. Hardten on three grounds:

1. As a sanction for spoliation;

2. As being unreliable expert testimony under Fed. R. Civ. P. 702; and

3. As superfluous. (Docket 299). B&L seeks to exclude Dr. Bromes' testimony as a sanction for plaintiff's alleged spoliation. Id. Assuming B&L prevails on the expert witness motion, it seeks dismissal of plaintiff's claims and the cross-claims of LVCI.

Id. The court will address each of B&L's motions separately.

SPOLIATION

A. Destruction of Dr. Hardten's file

B&L urges the court to invoke the sanction of exclusion of the physicians' testimony because (1) Dr. Hardten destroyed his file after his 2007 deposition; and (2) neither plaintiff nor Dr. Bormes nor Dr. Hardten can produce a letter from Dr. Bormes to Dr. Hardten. (Docket 299, p. 6).

"A spoliation-of-evidence sanction requires a finding of intentional destruction indicating a desire to suppress the truth." Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007) (internal citation and quotation marks omitted). "The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth . . . ." Id. "The evidentiary spoliation doctrine applies when there is intentional destruction of evidence, indicating fraud and a desire to suppress the truth." Menz v. New Holland North America, Inc., 440 F.3d 1002, 1006 (8th Cir. 2006) (internal citation omitted).

If the court finds "there is no evidence of intentional destruction of evidence to suppress the truth, then the district court also acts within its discretionary limits by denying sanctions for spoliation of evidence." Gallagher v. Magner, 619 F.3d 823, 845 (8th Cir. 2010). "There must be a finding of prejudice to the opposing party before imposing a sanction for destruction of evidence." Greyhound, 485 F.3d at 1035 (internal citation omitted).

At his 2010 deposition, Dr. Hardten testified he destroyed his file because he had not heard from plaintiff's counsel for some time and assumed the case had been resolved. (Docket 300-5, p. 7). Plaintiff reproduced all of Dr. Hardten's file so B&L could compare it against the production of the file throughout the course of discovery. (Docket 304, pp. 3-4). While B&L expresses indignation at the destruction of Dr. Hardten's file, it has not made a sufficient showing the destruction of the file was either intentional or intended to suppress ...


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