Larson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BRENT LARSON, ET AL. CIVIL ACTION

VERSUS NO. 25-1145

EARL STEVEN HAMRIC, ET AL. SECTION: “G”(5)

ORDER AND REASONS

In this litigation Brent Larson and his wife Ashley Larson, individually and on behalf of

their children (collectively, the “Plaintiffs”) bring claims against Defendants Earl Steven Hamric

and Evergreen Transport, LLC’s (collectively, “Defendants”) for damages allegedly sustained

following a motor vehicle accident. Before the Court is Defendants’ Motion to Exclude and for

Imposition of Adverse Inference Due to Spoliation of Evidence.1 Defendants move the Court to

exclude, or alternatively impose an adverse inference regarding, any evidence at trial concerning

Brent Larson’s (“Larson”) cervical spine surgery on June 2, 2025, on the grounds that Plaintiffs

spoliated the evidence of Larson’s pre-surgical condition by failing to allow Defendants the

opportunity to obtain an Independent Medical Examination (“IME”) before surgery was

completed.2 Plaintiffs oppose the motion.3 Having considered the motion, the memoranda in

support and in opposition, the record, and the applicable law, the Court denies the motion. As there

is a genuine dispute of material fact on the issue of whether the evidence was destroyed in bad

faith, the Court will provide the jury with appropriate jury instructions to resolve the genuine

disputes of material fact concerning spoliation.

1 Rec. Doc. 15.

2 Id. at 1.

3 Rec. Doc. 18.

I. Background

This lawsuit arises from a November 7, 2023 motor vehicle accident in Orleans Parish

involving a vehicle driven by Larson and a vehicle owned by Defendant Evergreen Transport, LLC

and operated by Defendant Earl Steven Hamric.4 On September 27, 2024, Plaintiffs sent a demand

letter to Defendant Evergreen Transport, LLC’s insurer, which indicated Larson was being treated

for spine injuries by an orthopedic specialist.5 On October 17, 2024, Plaintiffs sent an updated

demand letter to Defendant Evergreen Transport LLC’s insurer indicating that Larson would need,

at a minimum, ongoing pain management treatment.6

On November 4, 2024, Plaintiffs filed a petition in the Orleans Parish Civil District Court.7

Plaintiffs claim that Larson sustained severe physical and emotional injury in the collision, and

they are seeking damages for pain and suffering, medical expenses, loss of enjoyment of life, and

other damages.8

On December 5, 2024, Defendants sent a letter to Plaintiffs requesting information

regarding any surgical recommendations given to Larson and requesting to conduct an IME of

Larson.9 On February 4, 2025, Plaintiffs responded to Defendants’ discovery request and stated

that Larson “has not yet received a surgical recommendation nor other expensive or significantly

invasive medical recommendation[.]”10 On May 19, 2025, Plaintiffs emailed Defendants a letter

4 Rec. Doc. 4-1 at 1–2.

5 Rec. Doc. 18-1.

6 Rec. Doc. 18-3.

7 Rec. Doc. 4-1.

8 Rec. Doc. 4-1.

9 Rec. Doc. 18-5. This letter specifically stated that Defendants would pursue spoliation of evidence claims

against Plaintiff if he failed to preserve the evidence of his condition.

10 Rec. Doc. 18-7.

stating that Larson was scheduled for spinal surgery on June 6, 2025.11 Notably, Defendants

concede that the medical records attached to the May 19 letter indicated Larson was scheduled for

surgery on June 2, 2025.12 However, Defendants claim they were under the belief that the June 6

surgery date on the May 19 letter was the accurate date.13 On June 4, 2025, Defendants contacted

Plaintiffs and set a Rule 10.1 conference for June 11, 2025, to finalize the IME details.14 On June

6, 2025, Defendants removed this action to this Court and reached out to Plaintiffs again in an

attempt to schedule the IME.15 Finally, on June 11, 2025, during the Rule 10.1 conference

Defendants were informed that Larson had already proceeded with spinal surgery on June 2,

2025.16

On August 18, 2025, Defendants filed the instant Motion to Exclude.17 Plaintiffs filed an

opposition to the motion on September 4, 2025.18 Defendants filed a reply brief on September 11,

2025.19

II. Parties’ Arguments

A. Defendants’ Arguments in Support of the Motion to Exclude

Defendants argue that Plaintiffs spoliated evidence of Larson’s pre-surgical condition by

failing to allow Defendants the opportunity to obtain an independent medical examination before

11 Rec. Doc. 18-11.

12 Rec. Doc. 20 at 3.

13 Id.

14 Rec. Docs. 15-6, 15-1 at 3–4.

15 Rec. Docs. 4; 15-1 at 4.

16 Rec. Doc. 15-1 at 4.

17 Rec. Doc. 15.

18 Rec. Doc. 18.

19 Rec. Doc. 20.

surgery was completed, despite Defendants’ written requests to do so.20 Defendants request that

the Court sanction Plaintiffs by “excluding any evidence at trial regarding the C4-5, C5-6 and C6-

7 Stryker cervical disc decompression surgery performed by Dr. David Wyatt on June 2, 2025 on

Brent Larson[.]”21 “In the alternative, Defendants request this Court impose an adverse inference

regarding any surgical intervention for Brent Larson’s alleged cervical spine injury and medical

causation therefor, including but not limited to striking the customary presumptions under Housley

and Wells from the jury form.”22

Defendants contend that Plaintiff was obligated to preserve the relevant evidence of his

pre-surgery condition and intentionally destroyed the evidence in bad faith.23 Further, Defendants

claim that Larson “undisputedly had exclusive control over that evidence” and that Larson

“inarguably had an obligation to preserve his pre-surgery physical condition.”24 Defendants

maintain that the letter sent to Plaintiffs on December 5, 2024 gave Plaintiffs notice of their duty

to “thereafter to preserve evidence of [Larson’s] pre-surgical condition, and of Defendants’

requests for timely notice of any surgery recommended or scheduled and to conduct an IME prior

to any such surgery.”25 However, Defendants argue Plaintiffs did not fulfill their duty to preserve

the evidence of Larson’s pre-surgical condition.26 “Instead, with approval and coordination from

20 Rec. Doc. 15 at 1.

21 Rec. Doc. 15-1 at 1.

22 Id. at 1–2.

23 Id. at 9.

24 Id.

25 Id.

26 Id. at 10.

his attorneys’ office, [Larson] underwent an elective cervical surgery on January 2, 2025[,] without

affording Defendants their rightful opportunity to conduct an IME prior to the surgery.”27

Defendants allege that they were irreversibly prejudiced by Plaintiffs’ intentional spoliation

of evidence.28 Defendants state that Larson “placed his physical condition in controversy and

Defendants were justly and legally entitled to conduct an IME prior to Mr. Larson undergoing any

surgery on the very physical conditions he placed in controversy.”29 In support, Defendants

contend that they may be exposed to a potentially large damage award, and evidence of Larson’s

pre-surgical condition was uniquely relevant to contesting this issue at trial.30 Defendants assert

that they are “substantially and irreversibly prejudice[ed]” because they are now precluded from

ever conducting an IME of Larson’s pre-surgical condition.31

Defendants aver that sanctions are warranted under Federal Rule of Civil Procedure 37 for

the spoliation of evidence.32 Defendants argue that “[c]ourts have long recognized the importance

of a defendant’s right to an IME, which should be enforced in this case by punishing Plaintiffs for

their intentional bad faith conduct.”33 Further, Defendants assert that “courts have required an IME

must occur prior to surgery to avoid spoliation of evidence.”34 Additionally, Defendants contend

27 Id. at 10–11.

28 Id. at 11.

29 Id.

30 Id.

31 Id.

32 Id. at 12.

33 Id.

34 Id. at 13 (citing Magnolia Fleet, LLC v. Grey, No. 18-8363, 2018 WL 5619995, at *3 (E.D. La. Oct. 30,

2018); Gant v. Helix Energy Sols. Grp., No. 07-0618, 2007 WL 2316526, at *1 (W.D. La. Aug. 9, 2007)).

that the proportionate sanction here given the “intentional nature of proceeding with cervical

surgery despite the multiple IME requests by Defendants” would be for the Court to:

exclude any and all evidence concerning the cervical surgery,

including but not limited to any surgical recommendation, the

surgery itself, any post-surgical treatment, and any costs and

expenses associated with the surgery. In the alternative, Defendants

request this Court impose an adverse inference as to any evidence

Plaintiff may seek to introduce a trial regarding the need for surgical

intervention on his cervical spine and medical causation therefor.35

B. Plaintiffs’ Arguments in Opposition of the Motion to Exclude

Plaintiffs oppose the motion, asserting they did not act in bad faith.36 Plaintiffs argue

Defendants have failed to offer evidence supporting their claims, cannot meet the burden of proof,

and had notice that Larson suffered a serious disc injury on September 27, 2024, but failed to

request a medical examination.37 Additionally, Plaintiffs note that all of the relevant facts for this

motion occurred before the removal of this case on June 5, 2025, and therefore state law should

apply.38 Further, Plaintiffs contend that Defendants improperly apply Rule 37 remedies to this case

because it does not apply unless the Court has issued an order to compel, which has not occurred

here.39 However, to the extent that federal law does apply to this issue Plaintiffs assert that Rule

35 would control, which is equivalent to Louisiana Civil Code of Civil Procedure article 1464.40

35 Id. at 14.

36 Rec. Doc. 18 at 1.

37 Id.

38 Id. at 2.

39 Id.

40 Id.

Plaintiffs argue that Defendants could have, but failed to, move the state court to order a

physical examination prior to surgery under article 1464.41 Further, Plaintiffs aver that Defendants

have offered no evidence showing that the disc material removed during the surgery deprived them

of any defensive opportunity in this case or that, if preserved, the disc material would have been

detrimental to Plaintiffs’ case.42 Plaintiffs assert that Defendants knew long before May 19, 2025,

that surgery was a possibility because they knew that Larson suffered a serious cervical disc injury

in this wreck, that conservative treatment was not effective, that he was referred to a spine surgeon,

that he received increasingly invasive treatment over time, and that despite this care, his pain levels

remained high.43

Plaintiffs cite Collongues v. State Farm Insurance Co., to argue that, similar to the instant

matter, “Defendant’s failure to investigate [Larson’s] condition and require an IME prior to surgery

negates the notion that [Larson] intentionally destroyed evidence by undergoing surgery.”44

Moreover, Plaintiffs contend that Defendants merely made an informal request for an IME, which

is insufficient to attach a duty to preserve the evidence.45 Additionally, Plaintiffs point out that

Defendants’ IME request would be deficient under article 1464 because it did not specify the

manner, conditions, or scope of the exam, nor did it specify who would be present during the exam

or list any diagnostic testing to be performed during the exam.46 Plaintiffs assert that they discussed

41 Id.

42 Id. at 5.

43 Id. at 6.

44 Id. at 6–7 (citing No. 09-3202, 2010 WL 103878, at *2 (E.D. La. Jan. 7, 2010).

45 Id. at 8.

46 Id. at 8.

with Defendants the IME request and identified the article 1464 deficiencies at least twice before

June 2, 2025.47

C. Defendants’ Arguments in Further Support of the Motion to Exclude

In reply, Defendants assert that federal law controls the disposition of this motion.48

Defendants rely on Federal Rule of Civil Procedure 81(c)(1), which states “[t]hese rules apply to

a civil action after it is removed from a state court.”49 Further, Defendants cite Rule 37(a)(1), which

indicates a desire for parties to first confer in good faith to obtain discovery before seeking court

action.50 Additionally, Defendants argue that a prior court order is not a prerequisite for Plaintiffs

to be found in bad faith for intentionally destroying evidence.51

Defendants contend that federal courts in Louisiana have consistently found bad faith

sufficient to constitute spoliation of evidence when the plaintiff fails to appear for a requested IME,

even without a prior court order.52 Further, Defendants submit that Larson’s surgery was an elective

non-emergency surgery, and that two weeks was not enough notice to allow for an IME to occur.53

Defendants point out that Plaintiffs were aware since the December 5, 2024 letter that Defendants

wanted to conduct an IME on Larson if he was recommended to undergo surgery.54 Additionally,

47 Id. at 10.

48 Rec. Doc. 20 at 1.

49 Id.

50 Id.

51 Rec. Doc. 20 at 1.

52 Id. at 1–2.

53 Id. at 2.

54 Id. at 2–3.

Defendants aver that Plaintiffs fail to provide any explanation for why the surgery could not have

been briefly delayed to allow for the IME that was requested multiple times.55

III. Legal Standard

A. Applicable Law

In diversity suits courts must determine whether to apply state or federal law to the issue

of spoliation.56 “Generally, federal courts apply their own evidentiary rules in diversity matters.”57

Likewise, “[e]videntiary ‘presumptions’ which merely permit an adverse inference based on

unproduced evidence are, likewise, controlled by federal law.”58

B. Spoliation and Remedies

A federal court has the inherent power to sanction a party who has abused the judicial

process.59 The spoliation of evidence is one such abuse.60 Spoliation of evidence occurs when a

party intentionally destroys relevant evidence.61 Destroying or altering evidence, however, does

not necessarily mean that the party has engaged in sanction-worthy spoliation. Instead, the Court

must find: “(1) the spoliating party must have controlled the evidence and been under an obligation

to preserve it at the time of destruction; (2) the evidence must have been intentionally destroyed;

and (3) the moving party must show that the spoliating party acted in bad faith.”62 The party

55 Id. at 4.

56 See King v. Ill. Cent. R.R., 337 F.3d 550, 555–56 (5th Cir. 2003).

57 Id. at 556.

58 Id. (citing Herbert v. Wal–Mart Stores, Inc., 911 F.2d 1044, 1047 (5th Cir. 1990)).

59 Chambers v. NASCO, 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).

60 Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 611 (S.D. Tex. 2010).

61 Coastal Bridge Co., L.L.C. v. Heatec. Inc., 833 Fed. App’x 565, 573 (5th Cir. 2020).

62 Id. at 574 (citing Port of S. La. v. Tri-Parish Indus., 927 F. Supp. 2d 332, 346 (E.D. La. 2013); Herster v.

Bd. of Supervisors of Louisiana State Univ., 887 F.3d 177, 190 (5th Cir. 2018)).

seeking the spoliation sanction bears the burden of proof.63 In the context of spoliation, “bad faith

is a question of fact like any other.”64 “If a genuine dispute of material fact exists as to bad faith, a

jury should make that determination.”65

IV. Analysis

Plaintiffs argue that Louisiana state law should apply to the issue of spoliation because the

facts under which the spoliation claim arose occurred prior to the removal of the matter to this

Court. Defendants argue under Federal Rule of Civil Procedure 81(c)(1) that the federal rules

should apply to the issue of spoliation. Because this is a procedural evidentiary issue raised after

removal, the Court will apply federal law to analyze Defendants’ spoliation claim.66

Defendants argue that Plaintiffs destroyed evidence of Larson’s pre-surgical condition,

which he was under a duty to preserve, by failing to allow Defendants the opportunity to obtain an

independent medical examination before surgery was completed. Plaintiffs oppose the motion,

asserting they did not act in bad faith by proceeding with Larson’s surgery. Further, Plaintiffs argue

that Defendants needed to move for the state court to order the IME as a prerequisite to attaching

a duty for Plaintiffs to preserve Larson’s pre-surgical condition.

The first element of the spoliation of evidence analysis is control over the evidence and an

obligation to preserve it at the time of destruction.67 There is no dispute that Larson had control

over his body and the decision to alter his pre-surgical condition. Generally, the duty to preserve

63 Rimkus, 688 F. Supp. 2d at 615–16.

64 Van Winkle v. Rogers, 82 F.4th 370, 378 (5th Cir. 2023) (quoting Bracey v. Grondin, 712 F.3d 1012, 1019

(7th Cir. 2013)).

65 Id.

66 See King, 337 F.3d at 556.

67 Coastal Bridge Co., 833 Fed. App’x at 574.

arises when a party “has notice that the evidence is relevant to litigation or . . . should have known

that the evidence may be relevant to future litigation.”68 Here, Plaintiffs filed suit to recover

damages resulting from his alleged spine injuries which were sustained during the November 7,

2023, collision. Further, Plaintiffs were in receipt of Defendants’ December 5, 2024, letter which

requested an IME of Larson. Thus, Plaintiffs had notice and should have known that Larson’s pre-

surgical condition was evidence that would be used by Defendants. Accordingly, Plaintiffs had a

duty to preserve Larson’s pre-surgical condition.

The second element is whether the evidence was intentionally destroyed.69 Courts have

found that a plaintiff intentionally destroys evidence of his pre-surgical medical condition when a

plaintiff undergoes surgery before submitting to an IME that was previously requested by a

defendant.70 Plaintiffs do not dispute that Defendants requested an IME before Larson’s surgery.

Accordingly, the second element is met.

The parties primarily dispute the third element, whether Plaintiffs destroyed the evidence

in bad faith.71 Defendants contend that federal courts in Louisiana have consistently found bad

faith sufficient to constitute spoliation of evidence when the plaintiff fails to appear for a requested

IME, even without a prior court order.72 Plaintiffs assert they did not act in bad faith simply

because Defendants failed to act to secure the IME before Larson’s surgery.73

68 Rimkus, 688 F. Supp. 2d at 612.

69 Coastal Bridge Co., 833 Fed. App’x at 574.

70 Allen v. Resto, No. 12-2242, 2013 WL 2152177, at *2 (E.D. La. May 16, 2013).

71 Coastal Bridge Co., 833 Fed. App’x at 574.

72 Rec. Doc. 20 at 1–2.

73 Rec. Doc. 18 at 1.

Defendants first requested an IME on December 5, 2024.74 On February 4, 2025, Plaintiffs

informed Defendants that Larson had not received a surgical recommendation.75 On May 19, 2025,

Plaintiffs emailed Defendants a letter stating that Larson was scheduled for spinal surgery on June

6, 2025.76 This appears to be a typographical error as the medical records attached to the May 19

letter indicated Larson was scheduled for surgery on June 2, 2025.77 On May 23, 2025, Defendants’

counsel emailed Plaintiffs’ counsel to provide ten appointment dates available for the IME.78 On

May 28, 2025, Defendants’ counsel sent a follow up email to Plaintiffs’ counsel.79 Plaintiffs do not

dispute these events, but they assert Plaintiffs’ counsel was out of state on a family trip, and he

attempted to reach Defendants’ counsel when he returned on May 30, 2025.80 Plaintiffs suggest

that Defendants’ counsel did not respond, and Larson proceeded to surgery three days later. This

back-and-forth correspondence is not sufficient information to determine whether Plaintiffs acted

in bad faith. In the context of spoliation, “bad faith is a question of fact like any other.”81 “If a

genuine dispute of material fact exists as to bad faith, a jury should make that determination.”82

Hence, the Court finds that there are disputed issues of fact regarding whether spoliation

of Larson’s pre-surgery condition occurred. Therefore, the Court will provide the jury with

74 Rec. Doc. 18-5. This letter specifically stated that Defendants would pursue spoliation of evidence claims

against Plaintiff if he failed to preserve the evidence of his condition.

75 Rec. Doc. 18-7.

76 Rec. Doc. 18-11.

77 Rec. Doc. 20 at 3.

78 Rec. Doc. 15-1 at 3; Rec. Doc. 18 at 8.

79 Rec. Doc. 15-1 at 3; Rec. Doc. 18 at 8.

80 Rec. Doc. 18 at 8.

81 Van Winkle, 82 F.4th at 378.

82 Id.

appropriate jury instructions to resolve the genuine disputes of material fact concerning

spoliation.®?

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion to Exclude and for Imposition of

Adverse Inference Due to Spoliation of Evidence™ is DENIED. The Court will provide the jury

with appropriate jury instructions to resolve the genuine disputes of material fact concerning

spoliation.

NEW ORLEANS, LOUISIANA, this day of November, 2025.

Darvette Jobuett (Brow

NANNETTE JOLIV E BROWN

UNITED STATES DISTRICT JUDGE

83 Id.

84 Rec. Doe. 15.

13