# Waters v. AIG Claims, Inc.

> District Court, M.D. Alabama · June 22, 2022

URL: https://www.frixlaw.com/law-library/cases/9987835

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** June 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9987835

## How later opinions describe it (automated extraction)

- affirming dispositive relief because the spoliator: (1) excluded the opposing party from its examination of the evidence, (2

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

LORRIE WATERS and DERREL )
KEITH WATERS, )
)
Plaintiffs, )
)
v. ) CASE NO.: 2:17-cv-133-RAH
) (WO)
AIG CLAIMS, INC. and NATIONAL )
UNION FIRE INSURANCE COMPANY )
OF PITTSBURGH, PA, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
This ERISA action was brought by Plaintiffs Lorrie and Keith Waters after they
were denied benefits under an employer-provided life insurance policy that insured the life
of their son, Cody Waters, who died in a single vehicle motor vehicle accident in Louisiana
on August 15, 2015. Pertinent to the instant case is the insurance policy’s coverage
exclusion for intoxication-related deaths.
Pending before the Court is a raft of motions, including competing dispositive
motions (Docs. 171, 172), competing motions to exclude the opinions of the other party’s
respective toxicologist experts (Docs. 169, 170, 174), and a spoliation motion (Doc. 163)
filed by the Waterses following the Defendants’ alleged destruction of a fluid sample
collected during Cody’s autopsy.
I. LEGAL STANDARD
The Waterses have filed a Motion for Summary Judgment, and Defendants AIG
Claims, Inc. and National Union Fire Insurance Company of Pittsburg, PA (collectively,
AIG) have filed a Motion for Judgment as a Matter of Law. Based on the parties’
stipulation to the Court’s resolution of this case “on the papers,” the Court will make a final
ruling on the briefs and evidentiary submissions with findings of fact and conclusions of
law. This practice has been found to be the preferable one in ERISA cases by other district

courts and has been approved by the Eleventh Circuit. See Faison v. Donalsonville Hosp.,
Inc., 534 F. App’x 924, 925 (11th Cir. 2013) (affirming a district court’s conclusions from
an ERISA “trial on the papers”).
In an ERISA benefits denial case, “the district court sits more as an appellate
tribunal than as a trial court. It does not take evidence, but, rather, evaluates the
reasonableness of an administrative determination in light of the record compiled before

the plan fiduciary.” Curran v. Kemper Nat’l Servs., Inc., No. 04-14097, 2005 WL 894840,
at * 7 (11th Cir. Mar. 16, 2005) (per curiam) (quotation marks and citation omitted). The
summary judgment standard in ERISA cases is therefore different from the ordinary
summary judgment standard that applies in other cases. See Ruple v. Hartford Life &
Accident Ins. Co., 340 F. App’x 604, 610 (11th Cir. 2009) (per curiam). “[T]he usual tests

of summary judgment, such as whether a genuine dispute of material fact exists, do not
apply.” Jones v. Fed. Express Corp., 984 F.Supp.2d 1271, 1275 (M.D. Fla. 2013)
(alteration added) (quotation marks and citation omitted). “Thus, there may indeed be
unresolved factual issues evident in the administrative record, but unless the administrator's
decision was wrong, or arbitrary and capricious, these issues will not preclude summary

judgment as they normally would.” Miller v. PNC Fin. Servs. Grp., Inc., 278 F. Supp. 3d
1333, 1341 (S.D. Fla. 2017) (quotation marks and citation omitted).
The ERISA statute provides no standard for courts reviewing the benefits decision
of claims administrators. Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1354 (11th
Cir. 2011) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 (1989)).
However, the Supreme Court in Firestone established three distinct standards for reviewing

an ERISA plan administrator's decision: (1) de novo where the plan does not grant the
administrator discretion; (2) arbitrary and capricious where the plan grants the
administrator discretion; and (3) heightened arbitrary and capricious where the plan grants
the administrator discretion, and the administrator has a conflict of interest. See Buckley v.
Metropolitan Life, 115 F.3d 936, 939 (11th Cir. 1997). The Eleventh Circuit, applying
Supreme Court precedent, expanded the Firestone test into a six-step analysis “for use in

judicially reviewing virtually all ERISA-plan benefit denials.” Williams v. BellSouth
Telecommunications, Inc., 373 F.3d 1132, 1137 (11th Cir. 2004). The framework is as
follows:
(1) Apply the de novo standard to determine whether the claim
administrator's benefits-denial decision is “wrong” (i.e., the court
disagrees with the administrator's decision); if it is not, then end the
inquiry and affirm the decision;

(2) If the administrator's decision is “de novo wrong,” then determine
whether he was vested with discretion in reviewing claims; if not, end the
judicial inquiry and reverse the decision;

(3) If the administrator's decision is “de novo wrong” and he was vested with
discretion in reviewing claims, then determine whether “reasonable”
grounds supported it (hence, review his decision under the more
deferential arbitrary and capricious standard);

(4) If no reasonable grounds exist, then end the inquiry and reverse the
administrator's decision; if reasonable grounds do exist, then determine if
he operated under a conflict of interest;
(5) If there is no conflict, then end the inquiry and affirm the decision;

(6) If there is a conflict, the conflict should merely be a factor for the court
to take into account when determining whether an administrator's
decision was arbitrary and capricious.

Id. at 1355.
Applying the de novo standard, “[t]he Court must consider, based on the record
before the administrator at the time its decision was made, whether the court would reach
the same decision as the administrator.” Glazer v. Reliance Standard Life Ins. Co., 524
F.3d 1241, 1246 (11th Cir. 2008). In making this determination, the court does not give
any deference to the administrator’s decision; rather, the court “stand[s] in the shoes of the
administrator and start[s] from scratch, examining all the evidence before the administrator
as if the issue had not been decided previously.” Bates v. Metro. Life Ins. Co., No. 5:08-
cv-22 (CAR), 2009 WL 2355834, at *10 (M.D. Ga. July 27, 2009) (internal quotations and
citation omitted). The claimants bear the burden of proving they are entitled to ERISA
benefits. See Glazer, 524 F.3d at 1247.
II. FACTS AND PROCEDURAL HISTORY
A. Accident, Autopsy and Police Department Causation Opinion
Cody Waters died in a single vehicle, roll-over crash around 11:00 p.m. on August
15, 2015, in Shreveport, Louisiana. (Doc. 170-8; Doc. 173-2 at 101-104; Doc. 173-4 at 7–
10.) There was one eyewitness to the accident, who saw Cody’s vehicle veer to the right,
then to the left, then to the right again, and then flip over and roll into the grass. (Doc. 170-

8 at 2; Doc. 173-2 at 92.) Cody was ejected from the vehicle and emergency responders
declared him dead at the scene. (Doc. 173-2 at 92.)
Cody’s body was transported to the LSU Health Sciences Center Department of
Pathology in Shreveport for an autopsy. (Doc. 173-2 at 101–04; Doc. 173-4 at 9.)
Dr. Long Jin of Louisiana State University performed the autopsy around 10:30 a.m.
on August 16, 2015—less than twelve hours after the accident. (Doc. 173-3 at 29–33.) Dr.

Jin drew samples of cardiac blood, vitreous fluid, and urine, but he only sent the cardiac
blood and urine off for analysis by a third-party vendor, NMS Labs. (Doc. 173-3 at 29, 33.)
Cody’s cardiac blood ultimately tested positive for ethanol, showing a blood alcohol
concentration (BAC) of 0.113%, an amount in excess of Louisiana’s 0.08% legal limit to
operate a motor vehicle. (Doc. 173-3 at 34.) The urine sample was negative for drugs. (Doc.
173-3 at 33–35.)

Dr. Jin included these toxicology results in his final autopsy report, and also noted
in the report the massive internal and external damage to Cody’s chest cavity. (Doc. 173-3
at 29–33.) With the autopsy report in hand, the Shreveport Police Department Traffic Crash
Reconstructionist/Crash Investigator closed the case, concluding that Cody’s death was
“accidental” with the “causal factor of the crash determined to be careless operation of the

motor vehicle due to ethanol intoxication (alcohol impairment).” (Doc. 173-4 at 10.)
The State of Louisiana Certification of Death contained a similar conclusion. (Doc.
173-2 at 88.) It identified the cause of death as “crush injuries to the head” and “multiple
blunt force injuries,” with “ethanol use” being an “other significant condition[]
contributing to death but not resulting in the underlying cause given.” (Id.)
B. The Policy, Claim, Investigation and Claim Denial
Through his employment with ExpressJet Airlines, Inc. and participation in the
ExpressJet Airlines, Inc. Consolidated Welfare Benefit Plan, Cody had elected accidental
death and dismemberment (AD&D) protection of $500,000, and named his parents, the

Waterses, as beneficiaries. (Doc. 173-2 at 29–77, 87.) The policy was issued to ExpressJet
Airlines and underwritten by Defendant National Union Fire Insurance Company to insure
the accidental death and dismemberment component of the ExpressJet ERISA plan. (Id. at
29–77.) Claims under the policy were administered by AIG.
Under the policy, 100% of the principal sum would be paid if an injury caused by
an accident resulted in death within 365 days of the date of the accident that caused the

injury. (Id. at 47.) However, pertinent to the dispute here, the policy contained an exclusion
for death “caused in whole or in part by, or resulting in whole or in part from, . . . the
Insured Person being under the influence of drugs or intoxicants, unless taken under the
advice of a Physician.” (Id. at 49.) The “under the influence” language of the exclusion did
not require any particular threshold, such as a state legal limit, for intoxication.

Following Cody’s accident, the Waterses made a claim for the life insurance
benefits under the policy. (Id. at 15, 23, 125–26.) AIG began a review of the claim. (Id. at
15.)
After receiving the death certificate, police report, and autopsy report, AIG’s
assigned claims examiner requested a forensic toxicology peer review from Dr. Gary Lage,

a toxicologist, for purposes of “determining the level of impairment due to being under the
influence of intoxicants.” (Id. at 13.) At the outset, Dr. Lage noted the reliability issues
associated with the use of cardiac blood, rather than vitreous fluid, as the basis for
determining Cody’s blood alcohol content at the time of the accident. (Id. at 183.) As Dr.
Lage noted, it is widely recognized in forensic toxicology that the ideal source of
postmortem fluid for blood alcohol level analysis is from a peripheral source, such as

vitreous fluid. (Id.) “Cardiac blood is not ideal, due to the fact that it is possible that if there
is still a large amount of alcohol in the stomach at the time of death that can diffuse from
the stomach to the heart, resulting in a false elevation of blood alcohol level.” (Id.) That
cardiac blood was used here raised a question as to the accuracy of Cody’s BAC of 0.113%
at the time of accident. (Id.)
Nevertheless, with what he had available to him, Dr. Lage concluded that the cardiac

blood test was good enough to show a BAC of .08% or more. (Id.) As he stated, “it is
unlikely that his level would have been significantly lower than the 0.113 % reported, and
in my opinion that any contribution from postmortem diffusion, if it existed, would not
have reduced his blood alcohol level below 0.08%.” (Id.)
Dr. Lage also concluded that Cody would have been intoxicated at the time of the

crash, causing delayed reaction times and impaired vision, which in turn would have
impacted Cody’s ability to react normally to prevent an accident. (Doc. 173-2 at 183.) More
specifically, Dr. Lage concluded that, at the time of the accident, Cody “was intoxicated
with Ethanol and incapable of safely operating a motor vehicle” and that Cody’s
“intoxication and impairment are responsible for the accident and his death.” (Id.)

During its claim investigation, AIG received correspondence from an attorney for
the Waterses who raised concerns about using cardiac blood for the BAC determination
and also claiming that AIG’s investigation was incomplete. (Doc. 173-6 at 61–62.) AIG
discussed these concerns with Dr. Lage, who responded that, as discussed in his report, the
cardiac blood and the lack of vitreous analysis were “the bigger issues” but that,
considering the circumstances at the scene and the quick time between death and the

autopsy, “[p]ostmortem formation would not be expected to be an issue” because it occurs
“when the body is not preserved for a period of time.” (Doc. 173-6 at 71.)
Ultimately, by letter dated April 1, 2016, AIG denied the Waterses’ life insurance
claim based on the insurance policy’s intoxication exclusion, citing the eyewitness report
about the accident, the Shreveport Police Department crash report, the autopsy and
toxicology testing, the death certificate, and Dr. Lage’s review. (Doc. 173-6 at 87–90.)

C. Appeal and Louisiana Litigation
The Waterses appealed AIG’s claim decision on October 26, 2016. (Doc. 173-13 at
349–54.) With their appeal, the Waterses submitted a report from Dr. Jimmie Valentine,
a toxicologist, who opined that Cody’s cardiac blood sample could not reasonably be used
to conclude that Cody was intoxicated at the time of the accident because of the possibility

of postmortem fermentation and redistribution/diffusion. (Doc. 173-14 at 426–45; Doc.
173-15 at 1–47; Doc. 173-16 at 2–48.)
AIG then hired Janci Lindsay, also a toxicologist, to perform a toxicology
evaluation and investigate the issues raised by Dr. Valentine. As part of her work, Dr.
Lindsay discovered that LSU still possessed vials of Cody’s vitreous fluid which could be

obtained through the issuance of a subpoena. (Doc. 173-2 at 5; Doc. 173-17 at 166, 207.)
AIG retained Louisiana legal counsel and filed a legal action in Louisiana state court
on January 10, 2017 to obtain the vitreous fluid for purposes of testing. (Doc. 173-19 at 9–
15.) While it is undisputed that AIG made no efforts before the lawsuit filing to notify the
Waterses or their counsel of the existence of the vitreous fluid, or that it intended to file a

legal action to obtain and test the samples, it is disputed as to when the Waterses and their
legal counsel became aware of the Louisiana lawsuit once it was filed. Because the
Waterses did not enter an appearance in the Louisiana matter, the Louisiana court
ultimately appointed an attorney to represent their interests. (Doc. 173-19 at 109.) Efforts
to serve the Waterses with notice of the action proved difficult as both the Waterses and
their legal counsel refused to sign for or accept the certified mail issued in response to the

filing.
The Waterses filed this ERISA suit in Alabama on March 6, 2017. (Doc. 1.) AIG
was served in this action on March 13, 2017. (Doc. 5.)
On May 1, 2017, the Louisiana state court entered an order allowing AIG to conduct
pre-litigation discovery. AIG then issued two subpoenas: one for records from the

Louisiana coroner and one directing LSU to send Cody’s vitreous samples and documents
concerning the samples’ chain of custody to NMS Labs, the same vendor that had
previously tested Cody’s cardiac blood samples. (Doc. 185-1 at 10–16.)
On May 2, 2017, in an effort to expedite its efforts, AIG sent “courtesy” copies of
the subpoenas to the coroner and LSU. AIG, through its Louisiana counsel, also provided

LSU with paperwork that included a pre-filled instruction form with chain of custody
information and directions for LSU to include it with the vitreous samples sent to NMS
Labs. (Doc. 164-14 at 2; Doc. 185-1 at 23.) The paperwork contained no shipping
instructions, such as cold storage, nor did it instruct NMS Labs to store the samples or
return the samples to AIG, LSU, or the Waterses. Instead, by failing to direct the lab
otherwise, the paperwork authorized NMS Labs to destroy the samples. (Id. at 6 (“Failure

to notify NMS Labs in writing of a request for storage beyond the routine period(s) will be
considered authorization to discard or destroy the specimen(s)”).) The subpoena and
attached forms were formally served on May 7, 2017, and the samples were shipped to
NMS Labs the following day on May 8, 2017.
AIG, however, cancelled the test on May 9, 2017, after allegedly concluding that
the samples had not been properly stored at LSU. (Doc. 164-15; Doc. 164-23 at 2.) The

following day, AIG filed a motion to dismiss the ERISA case in Alabama, arguing the
Waterses had failed to exhaust their administrative remedies. (Doc. 36.) The Waterses
claim that this motion was the first occasion in which AIG notified them that Cody’s
vitreous fluid samples still existed. (Doc. 36 at 3–4; Doc. 164-18 at 3.) Based on AIG’s
representations, this Court stayed the case, pending the conclusion of AIG’s review of the

appeal. (Doc. 47.)
On May 16, 2017, NMS Labs notified AIG’s Louisiana counsel by mail that the
vitreous samples would be destroyed in six weeks absent instructions otherwise. (Doc. 164-
19 at 2.) The record does not show that AIG or its attorneys responded to this letter or made
any effort to prevent the samples from being destroyed. (Doc. 164-23 at 2.)

That same day, the Waterses retained Louisiana counsel and simultaneously filed a
Notice of Removal and a Motion to Transfer to Alabama. As a result of communications
between counsel, an agreement was reached on May 26, 2017 to dismiss the Louisiana
action subject to AIG’s provision of records from the subpoenas to the Waterses. (Doc.
164-43 at 2.)
On July 3, 2017, NMS Labs sent another letter via e-mail to remind AIG that the

vitreous samples would be destroyed imminently. (Doc. 164-23 at 2.) After AIG again
failed to respond, NMS Labs destroyed Cody’s only remaining vitreous fluid samples five
days later on July 8, 2017. (Doc. 164-15 at 2.)
Nearly two months later, on August 31, 2017, Dr. Lindsay finished her report. (Doc.
173-19 at 230–245.) In her report, Dr. Lindsay addressed Dr. Valentine’s concern that,
because of the refrigerated conditions under which the body was stored at the Louisiana

medical examiner’s office before the autopsy, “no significant post-mortem synthesis of
alcohol should occur.” (Id. at 232–33.) She also noted that the cardiac blood revealed a
BAC of 0.113, that this test result was accepted in the autopsy report, that 0.113 BAC
would have caused significant impairment to coordination, perception, and reaction times
and that, even at a lower BAC, visual tracking, peripheral vision, and glare recovery would

be impaired. (Id. at 233.) Ultimately, she concluded that based on the evidence, including
Cody’s “erratic driving late in the evening on a Saturday night and subsequent loss of
control of his vehicle prior to the accident,” that “it is more likely than not that [Decedent]
was intoxicated with significant amounts of alcohol at the time of the accident that led to
his death and that the alcohol results in his cardiac blood were correct and that this alcohol

in his system contributed to his accident and his fatality.” (Id. at 237.) In providing these
opinions, Dr. Lindsay also acknowledged that testing of BAC from a vitreous fluid sample
is a more accurate test of BAC than from cardiac blood. (Doc. 173-2 at 5.)
With this final report in hand, the AIG appeal examiner sent the claim to AIG’s
ERISA Appeals Committee, which upheld the claim denial. (Doc. 173-2 at 2; Doc. 173-20

at 13–17.) The Waterses were notified of the decision by a letter dated October 17, 2017.
(Doc. 173-20 at 13–17.)
On October 27, 2017, the Waterses filed a motion to lift the stay and to permit
discovery, as well as a motion requesting spoliation sanctions concerning the alleged
concealment and destruction of evidence; that is, Cody’s vitreous fluid samples. (Doc. 59;
Doc. 60.) The Waterses’ motion also sought to prevent spoliation of the samples. Two

weeks later, on November 13, 2017, AIG informed the Court and the Waterses that the
samples had already been destroyed. (Doc. 62 at 5.) The Waterses then withdrew their
motion to stay because the need to preserve the samples was now moot.
Following discovery, both parties filed the motions that are pending before the
Court, including competing dispositive motions, motions to exclude expert opinions, and

a motion for sanctions following the destruction of Cody’s vitreous fluid samples. The
Court now turns to these motions.
III. DISCUSSION
A. The Parties’ Experts
1. Consideration of the Experts

While this is an ERISA case that turns largely upon this Court’s review of the
administrative record, both parties have filed motions to strike or limit the other party’s
expert witnesses, all of whom provide opinions concerning Cody’s BAC at the time of the
accident and the reliability of a BAC determination from cardiac blood. None of these so-
called Daubert issues were presented to the AIG claims examiner (at least in a motion
format typical of that presented here). Instead, these issues are now being presented to this

Court after-the-fact as part of the Court’s de novo review. And from the Waterses’
perspective, apparently it is with the hope of having this Court undertake de novo review
in the absence of opinions from AIG’s toxicologist professionals that attribute alcohol as a
contributing factor to Cody’s motor vehicle accident and resulting death. The Court finds
fault with the Waterses’ argument.
As this Court must conduct a de novo review of the administrative record, strict

adherence to Daubert or the Federal Rules of Evidence is neither appropriate nor
warranted. Indeed, courts that have considered this issue have held that Daubert standards
are inapplicable to a court's review of the administrative record in an ERISA case. See, e.g.,
Wyatt v. AMEC Choices Benefits Program Long Term Disability Ins. Plan, 2005 WL
1186114, at *5 (S.D. Tex. May 19, 2005); Hufford v. Harris Corp., 322 F. Supp. 2d 1345,

1358 (M.D. Fla. 2004); VanWright v. First Unum Life Ins. Co., 740 F. Supp. 2d 397, 404
(S.D.N.Y. 2010) (“Rule 702 and Daubert do not apply in ERISA actions.”); accord Dowdy
v. Hartford Life & Acc. Ins. Co., 458 F. Supp. 2d 289, 302 n. 13 (S.D. Miss. 2006) (citing
cases); Herman v. Hartford Life & Acc. Ins. Co., 508 F. App’x 923, 928 (11th Cir. 2013);
Frame v. Hartford Life & Accident Ins. Co., 257 F. Supp. 3d 1268, 1276 (M.D. Fla. 2017).

Here, the reports from the toxicologist experts in this case largely were made a part
of the administrative record and the primary question for this Court is whether AIG’s claim
decision was wrong, not whether the experts were qualified under Daubert or the Federal
Rules of Evidence. See Wyatt, 2005 WL 1186114, at *5. Accordingly, the Court concludes
that the Waterses’ motion to strike the reports of Dr. Lage, Dr. Lindsay, and Dr. Johnson
are due to be denied to the extent the Waterses base their challenges under Daubert and the

Federal Rule of Evidence. That also holds true of AIG’s motion to strike Dr. Valentine to
the extent AIG raises a similar challenge.
2. The Experts’ Qualifications
Still, although AIG was not required to conduct a stringent Daubert/702 analysis,
the toxicologist experts—Dr. Jimmy L. Valentine, Dr. Gary L. Lage, Dr. Janci C. Lindsay,
and Dr. Robert Johnson—must be competent to address issues regarding blood alcohol

testing and analysis of the resulting data; that is, they must have knowledge, skill,
experience, training or education in this field. Fed. R. Evid. 702; Fed. R. Evid. 104(a); see
also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993); Helms v. Gen.
Dynamics Corp., 222 F. App’x 821, 828 (11th Cir. 2007) (“We have been critical of a
nurse's review when a meaningful review dictated assessment of specialized tests beyond

a nurse's training.”).
Given that all of the experts have extensive education, training, and knowledge in
toxicology, have worked as toxicologists, and have taught courses in toxicology, the Court
finds no reason why any of these individuals would not be qualified to review a BAC test
result, opine on the strengths and weaknesses of certain tests, and respond to the positions
and testimony of the others.1 Wakkinen v. UNUM Life Ins. Co. of Am., 531 F.3d 575, 582
(8th Cir. 2008) (“Wakkinen points to no evidence that calls into question the expertise of
Dr. Jacobson personally or of a doctor who specializes in occupational medicine to offer
an opinion on the condition of fibromyalgia”). The Court concludes these experts are, and

were, sufficiently qualified to give the challenged opinions.
3. Admissibility of the Experts’ Opinions
The next consideration is the admissibility of the experts’ opinions. Admissibility
seems to be the primary bone of contention between the parties who focus their attention
on peer reviewed articles and the facts surrounding the accident, resulting death, storage of
the body, and the fluid samples.

Courts require an expert’s testimony to be both reliable and relevant. Umana-
Fowler v. NCL (Bah.) Ltd., 49 F. Supp. 3d 1120, 1121 (S.D. Fla. 2014) (citing United States
v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)). Expert testimony must also assist the
trier of fact in understanding evidence or determining a fact at issue; be based on sufficient
facts or data; be the product of reliable principles and methods; and be reasonably applied

to the facts of the case. Fed. R. Evid. 702; Fed. R. Evid. 104(a); see also Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 588 (1993).
But again, this matter is before the Court largely on an administrative record review,
and the majority of the parties’ criticisms and challenges about the other’s experts “are
more appropriately considered an objection going to the weight of the evidence rather than

1 AIG did not raise a challenge to Dr. Valentine’s qualifications. Accordingly, the Court engages
in no such analysis as it concerns Dr. Valentine.
its admissibility.” Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir.
2011); United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir. 2013).
This is particularly so in a non-jury context. Found. Resol. Corp. v. Aon Hewitt Inv.
Consulting, Inc., No. 5:18-CV-458-OC-30PRL, 2021 WL 1342451, at *5 (M.D. Fla. Mar.

10, 2021) (citing U.S. v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005)). For that reason
alone, all of the parties’ objections are due to be denied. Nevertheless, the Court will engage
in a review of what it believes to be the parties’ primary criticisms of the other party’s
experts.
i) Dr. Janci Lindsay
The Waterses raise a series of issues concerning the reliability of Dr. Lindsay’s

report and her accompanying opinions regarding Cody’s BAC at the time of the accident.
All of these concerns focus on the central theme that, according to the Waterses, the BAC
level reflected in Cody’s cardiac blood was unreliable and too high due to postmortem
issues such as fermentation (i.e., postmortem synthesis of alcohol) and
redistribution/diffusion. The Waterses argue that Dr. Lindsay’s opinions contradict certain

peer reviewed papers, including those authored by Carol O’Neal (see Doc. 170 at 5-6; Doc.
170-3) and Dr. Valentine (see Doc. 170-5). AIG counters that Dr. Lindsay’s opinions on
the matter are supported by peer reviewed papers and statistics. (See, e.g., Doc. 178-2 at
6–7, “In a study of 100 cases, heart blood was observed to be a reliable specimen for
postmortem alcohol determinations and interpretations.”)

The Court has read Dr. Lindsay’s report and the referenced papers, as well as the
other papers submitted by the parties. The Court disagrees with the Waterses’ broad
assertions of clear contradictions. Dr. Lindsay’s opinions generally are supported by peer
reviewed papers and statistics.2 Indeed, these papers are based on case studies, and they
generally recognize that postmortem fermentation and redistribution/diffusion can happen
and can account for some observed ethanol concentration depending on the facts. The

Court will not strike Dr. Lindsay’s opinions, or ignore them, based on the assertion that her
opinions conflict with certain peer reviewed articles.
The Waterses also assert that it was inappropriate for Dr. Lindsay to rely on the
circumstances of the accident as evidence of Cody’s intoxication because Dr. Lindsay is
not qualified on this point, her analysis is based on inaccurate facts, and her analysis
“attempts to make a dispositive finding of fact.” (Doc. 170 at 13–14.) In other words, the

Waterses characterize this aspect of Dr. Lindsay’s opinions as an attempt to give opinions
as a driving or accident reconstruction expert, an area of expertise outside of her
qualifications as a toxicologist. The Court agrees to a limited point and considers Dr.
Lindsay’s opinions accordingly. As a toxicologist, Dr. Lindsay is qualified to opine
generally on the effects of alcohol on a person. And while she certainly can testify to the

effects of alcohol on certain aspects of driving, such as reaction time, the Court agrees that
any opinion specifically directed to the cause of Cody’s accident has little overall
evidentiary value from the Court’s viewpoint. Accident reconstruction opinions clearly
were appropriate for the Shreveport Police Department accident investigator who actually

2 Even if her opinions were contradicted, this does not render them inadmissible per se. Such issues
go to the weight to give her opinions, an issue especially appropriate given this Court’s role.
investigated the accident, conducted witness interviews, inspected the scene and vehicles,
and reviewed the medical examiner’s file.
To the extent the Waterses claim that Dr. Lindsay’s opinions are grossly prejudicial
under Rule 403 because she relies upon hearsay, such assertion is without import given this

Court’s role. As part of the administrative appeal review, the rules of evidence, including
hearsay, do not apply to the claims administrator’s review. See Blair v. Metro. Life Ins.
Co., 955 F. Supp. 2d 1229, 1249 n.13 (N.D. Ala. 2013) (citing Herman, 508 F. App’x at
927–29). And further, experts can rely upon hearsay. See, e.g., Knight through Kerr v.
Miami-Dade Cnty., 856 F.3d 795, 809 (11th Cir. 2017).
As it concerns testing of the vitreous fluid samples, that the samples were destroyed

and not tested does not render Dr. Lindsay’s opinions so unreliable or faulty that they
should altogether be excluded from consideration. Instead, the destruction of the vitreous
samples becomes important in how this Court deals with the spoliation issue and what
those test results may have revealed.
In short, the Waterses’ criticisms of Dr. Lindsay all go to the weight and credibility

of her opinions, which would be ripe for cross-examination in an adversarial proceeding.
But these criticisms are not sufficient to exclude Dr. Lindsay’s opinions on an ERISA
record review. Pledger v. Reliance Tr. Co., No. 1:15-CV-4444-MHC, 2020 WL 6101409,
at *11 (N.D. Ga. Jan. 24, 2020) (explaining that “the bases and sources of an expert’s
opinion affect the weight to be assigned that opinion rather than its admissibility.”).

Further, it is not within the Court’s purview to nit-pick an expert’s opinions in such a
manner as the Waterses ask in this case. The Court finds Dr. Lindsay’s opinions sufficiently
reliable and reasonable to be considered, except to the extent her opinions impede into the
area of accident reconstruction.
ii) Matthew McMullin
The Waterses seek to exclude the opinion of Matthew McMullin, a forensic

toxicologist at NMS Labs. McMullin’s opinion was included in Dr. Lindsay’s report and
in a November 2017 letter that McMullin authored. (See Doc. 170 at 17–22.) McMullin
opines that the ethanol concentration in Cody’s vitreous fluid in 2017 would not be a
reliable indicator of the concentration as it existed in 2015. The Waterses challenge
McMullin’s opinion on the grounds of hearsay, Daubert, and reliability.
But again, hearsay does not apply to materials obtained by the claims administrator

during an ERISA review. As to the Waterses’ Rule 702 and Daubert challenges, the record,
including McMullin’s November 2017 letter and his responses to the Waterses’ discovery
requests, sufficiently establishes the grounds for his conclusion about the relationship
between ethanol in the vitreous fluid sample at the time of collection in 2015 and the time
it was sent to NMS Labs in 2017.

The Waterses’ Rule 703 objection is equally flawed because Rule 703 expressly
states that “[a]n expert may base an opinion on facts or data in the case that the expert has
been made aware of . . . .” Fed. R. Evid. 703. There is nothing in Rules 702 or 703 that
prevents an expert from relying on facts and data provided by strangers or third parties.
And the Waterses’ other challenges, such as the lack of an expert report, McMullin’s

testimony that he was not a retained expert, his testimony that purportedly contradicts Dr.
Lindsay’s opinions about the accident, his testimony about evaporation, his receipt of
payments from AIG for his work, and his failure to produce communications, largely are
quibbles with issues either not germane to this Court’s role or that instead go to the weight
and credibility of McMullin’s opinions. The Waterses’ challenge to McMullin’s opinion
does not constitute grounds for exclusion. Accordingly, the Court will consider

McMullin’s opinion.
iii) Robert D. Johnson
The Waterses also challenge the opinions of Dr. Robert D. Johnson, a toxicologist
retained by AIG’s counsel during this litigation to interpret Cody’s forensic toxicology
results. In his report dated February 26, 2021, Dr. Johnson concluded that Cody’s driving
behavior was consistent with someone driving under the influence of alcohol, that there

should be no concerns about the postmortem formation of ethanol under the facts of this
case, and that it is a certainty that Cody consumed alcohol before the accident and was
under the influence of alcohol at the time of the accident. The Waterses challenge Dr.
Johnson’s opinions and his report, raising a host of issues including insufficient evidence
of Dr. Johnson’s qualifications; that his conclusions are merely his own ipse dixit; that his

opinions are contradicted by the record and various internet sources; and that his opinions
are unfairly prejudicial under Rule 403. The primary disputed opinion is Dr. Johnson’s
assertion that the vitreous fluid would have been impossible to interpret at the time of its
destruction in 2017 due to oxidation within the samples, which the Waterses challenge as
unsupported by any accepted sources.

The Court will not dwell on all of the reasons why the Waterses’ motion is due to
be denied, but it will touch on a few of them. First and foremost, Dr. Johnson is clearly
qualified to opine on alcohol intoxication and its effect on driving performance. Dr.
Johnson is Chair of the National Safety Council’s Alcohol, Drugs, and Impairment
Division. He is also the chief toxicologist in one of the largest counties in the country, and
his job for the past decade has been to assist in the determination of the cause and manner

of death in cases involving drugs and alcohol. He also assists both law enforcement
agencies and pathologists in determining the cause and manner of death in cases involving
drugs or alcohol.
As it concerns the Waterses’ claim that Dr. Johnson’s opinions are speculative and
unreliable, these concerns, again, go to the weight and credibility of Dr. Johnson’s opinions
rather than to their exclusion. For example, Dr. Johnson’s opinion about the interpretability

of a test of the vitreous fluid or lack of contamination of cardiac blood are sufficiently
supported by peer reviewed articles and publications, his own experience, and the facts in
this case. Similarly, the Waterses’ concerns about other issues, such as those concerning
sodium fluoride, are generally not supported by the record and do not constitute grounds
for exclusion.

The Waterses also argue that Dr. Johnson’s opinions are not reliable because they
do not address the theory of redistribution/diffusion of ethanol in Cody’s body. But an
expert is not required to address all alternative theories, nor would an expert’s failure to do
so be a sufficient basis for exclusion where the court is the factfinder. See Fuller, No. 1:11-
CV-784-ODE, 2019 WL 5448206, at *20. And regardless, Dr. Johnson’s report did

acknowledge, although not in depth, that postmortem redistribution was a possibility. The
fact that Dr. Johnson did not do a deep dive into this issue affects the weight of the
evidence. It is not a basis for exclusion.
The Court does note, as it concerns Dr. Johnson, that he was retained by AIG after
the final claim decision was made, and therefore his opinions were not part of the

administrative record and are largely duplicative of the opinions given by the toxicologists
involved in the claim decision. Regardless, the Court concludes that Dr. Johnson’s
opinions are not due to be stricken or limited. The Court will take these opinions into
consideration, giving them the weight and credibility that they are due.
iv) Dr. Jimmie Valentine
That brings the Court to the opinions of Dr. Valentine, the Waterses’ own toxicology

expert. Dr. Valentine has given a multitude of opinions, but primarily opines that cardiac
blood cannot be scientifically justified for determining postmortem BAC, that postmortem
fermentation and redistribution/diffusion account for an undetermined amount of ethanol
in the cardiac blood, and that Cody’s vitreous fluid specimen would have permitted a more
valid scientific interpretation of his postmortem BAC. Not to be outdone by the Waterses’

efforts to strike or limit experts, AIG has filed a motion of its own, targeting Dr. Valentine.
AIG argues that Dr. Valentine’s opinions concerning the effect of postmortem formation
and redistribution of alcohol on BAC are effectively conclusory and not supported by the
scientific literature he cites. AIG further argues that Dr. Valentine’s proposed ability to
accurately calculate BAC from eighteen-month-old vitreous fluid is contradicted by

scientific consensus and his own prior opinions.
Dr. Valentine is appropriately qualified, has explained the basis for his opinions and
has cited numerous peer reviewed articles and studies in support of his opinions. AIG’s
issues with his opinions go to their weight and credibility. These are not grounds for
exclusion, especially given this Court’s role in determining whether AIG’s claims decision

was wrong. Therefore, AIG’s motion to strike Dr. Valentine’s opinions is due to be denied
and his opinions will be considered.
B. Spoliation
The Waterses bring a spoliation allegation arising out of the destruction of Cody’s
vitreous fluid samples and associated paperwork. The Waterses place primary emphasis on
the vitreous samples because those samples were the only remaining objective evidence

with which the Waterses could have challenged the cardiac blood results. According to the
Waterses, AIG surreptitiously obtained a court order to obtain the samples from a
Louisiana state court under false pretenses, stalled the ERISA case before this Court,
obtained the vitreous samples from LSU, directed the transfer of the samples to a self-
selected vendor, canceled the testing, and then authorized and allowed the samples to be

destroyed, all without the knowledge or permission of the Waterses. Because of this, the
Waterses argue, the Court should sanction AIG by entering a default judgment, striking
experts, or making inferences against AIG.
AIG responds that the vitreous fluid samples were compromised due to their age
and means of storage, thereby rendering any test results unreliable and irrelevant. It further

argues that the destruction of the samples should be without consequence because the
samples were destroyed in error and not due to any malice or malintent on AIG’s part.
The Court has concerns with AIG’s stated position especially because it displays a
reckless viewpoint toward an event that AIG should not have allowed to happen. This is
especially true considering that AIG is a sophisticated party, was represented by counsel,
and was thoroughly familiar with litigation and the need to preserve evidence. Despite

AIG’s contentions, this spoliation issue is not without consequence and warrants a deeper
discussion.
To begin, spoliation is “the destruction or significant alteration of evidence, or the
failure to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.” Graff v. Baja Marine Corp., 310 F. App’x 298, 301 (11th Cir. 2009)
(quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)).

Spoliation relief is determined by weighing culpability and prejudice. E.g., Flury v.
Daimler Chrysler Corp., 427 F.3d 939, 946 (11th Cir. 2005) (“The court should weigh the
degree of the spoliator’s culpability against the prejudice to the opposing party.”). The
Eleventh Circuit has set out certain factors for district courts to consider when deciding
whether to impose a spoliation sanction: “(1) whether the party seeking sanctions was

prejudiced as a result of the destruction of evidence and whether any prejudice could be
cured, (2) the practical importance of the evidence, (3) whether the spoliating party acted
in bad faith, and (4) the potential for abuse if sanctions are not imposed.” Tesoriero v.
Carnival Corp., 965 F.3d 1170, 1184 (11th Cir. 2020). Other factors to consider include
fundamental fairness, alternative sources of the information obtainable from the evidence

destroyed, and the possible effectiveness of other sanctions less severe than
dismissal.” Morrison v. Veale, 3:14-CV-1020-TFM, 2017 WL 372980, at *3 (M.D. Ala.
Jan. 25, 2017).
In order for a court to impose sanctions, bad faith on the part of the spoliating party
is required. “‘[A] party’s failure to preserve evidence’ rises to the level of sanctionable

spoliation in this Circuit ‘only where the absence of that evidence is predicated on bad
faith,’ such as where a party purposely ‘tamper[s] with the evidence.’” Wandner v.
American Airlines, 79 F. Supp. 3d 1285, 1297 (S.D. Fla. 2015) (quoting Bashir v. Amtrak,
119 F.3d 929, 931 (11th Cir. 1997)). “[B]ad faith in the context of spoliation, generally
means destruction for the purpose of hiding adverse evidence,” and “[t]his consideration is
key in evaluating bad faith because the party’s reason for destroying evidence is what

justifies sanctions (or a lack thereof).” Tesoriero, 965 F.3d at 1184 (emphasis added). Bad
faith can be found based on “direct evidence or circumstantial evidence where certain
factors converge.” Bell Aerospace Servs., Inc. v. U.S. Aero Servs., Inc., No. 1:09-CV-141-
MHT, 2010 WL 11425322, at *2 (M.D. Ala. Feb. 18, 2010).
When “no direct evidence of bad intent exists . . . bad faith may be found on

circumstantial evidence where all of the following hallmarks are present: (1) evidence once
existed that could have been material to the proof or defense of a claim at issue in the case;
(2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3)
the spoliating party did so while it knew or should have known of its duty to preserve the
evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not

involving bad faith by the reason proffered by the spoliator.” Bell Aero. Servs., Inc., 2010
WL 11425322, at *2 (emphasis added) (quoting Calixto v. Watson Bowman Acme Corp.,
2009 WL 3823390, *16 (S.D. Fla. 2009)).
It is not necessary to show the spoliator acted with malice under the bad
faith/culpability factor in the Eleventh Circuit. Flury v. Daimler Chrysler Corp., 427 F.3d

939, 946 (11th Cir. 2005); Oil Equip. Co. Inc. v. Modern Welding Co. Inc., 661 F. App’x
646, 658 (11th Cir. 2016) (“‘[M]alice,’ which, while clearly sufficient, is not necessary to
support a finding of bad faith in this Circuit.”); Silver v. Countrywide Home Loans, Inc.,
483 F. App’x 568, 572 (11th Cir. 2012). But there must be more than mere negligence.
E.g., Penick v. Harbor Freight Tools, USA, Inc., 481 F. Supp. 3d 1286, 1293 (S.D. Fla.
2020) (collecting cases); Long v. Celebrity Cruises, Inc., 12-22807-CIV, 2013 WL

12092088, at *7–8 (S.D. Fla. July 31, 2013) (ordering spoliation sanctions based upon
reckless conduct). Instead, “[b]ad faith can be found when a party fails to preserve evidence
that it knew or should have known was relevant to litigation.” Long, 2013 WL 12092088,
at *7.
Sanctions the Court may impose against a party for spoliation include, but are not

limited to, default judgment or dismissal, adverse inference or rebuttable presumption
instructions to the jury, striking pleadings, and an award of fees and costs incurred by the
injured party as a result of the spoliation. Morrison v. Veale, 3:14-CV-1020-TFM, 2017
WL 372980, at *5 (M.D. Ala. Jan. 25, 2017).
Here, there is no dispute that Cody’s vitreous fluid samples were destroyed. And

while AIG now attempts to lessen the significance of the samples’ destruction by claiming
that the samples were compromised, the vitreous fluid was crucial and important to both
the Waterses and AIG. Both parties acknowledge the reliability of vitreous fluid over
cardiac blood for the purpose of determining BAC. Indeed, AIG retained legal counsel in
Louisiana and initiated a legal proceeding to obtain the vitreous samples and have them
tested. And further, it cannot be honestly disputed that the Waterses were prejudiced by the

samples’ destruction because had they been tested, the testing results could have rebutted
AIG’s determination that Cody’s death was the result of intoxication—or confirmed it.
This evidence was crucial to both parties, because even AIG acknowledges that it could
have impacted the claim decision.
AIG’s assertion that the vitreous samples would have had little probative value as
to Cody’s BAC lacks credibility, relies upon pure speculation, conflicts with the value that

AIG itself placed upon the samples as evidenced by its own actions to obtain the samples,
conflicts with its own internal communications about its importance, is self-serving, and
would potentially reward the spoliator. Brown v. Chertoff, 563 F. Supp. 2d 1372, 1379
(S.D. Ga. 2008) (“To require a party to show, before obtaining sanctions, that unproduced
evidence contains damaging information would simply turn ‘spoliation law’ on its head.”);

Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 133 (S.D. Fla. 1987) (“While it
is now impossible to determine precisely what or how many documents were destroyed,
the bad faith destruction of a relevant document, by itself, ‘gives rise to a strong inference
that production of that document would have been unfavorable to the party responsible for
its destruction.’”); Evans v. Mobile Cnty. Health Dept., 2012 WL 206141, at *12 (S.D. Ala.

Jan. 24, 2012) (explaining that the “plaintiff’s willful disregard of her obligation to preserve
evidence has inhibited the production of evidence that may have been harmful to her case
such that whether the spoliated evidence would, in fact, have been detrimental is irrelevant
since no one, other than perhaps [the plaintiff] herself, can know for certain.”). Indeed,
because of the samples’ destruction, there is no way to cure it. On this point, AIG does not
actually raise a challenge, instead focusing its argument on whether it acted in bad faith.

In the Court’s view, whether AIG acted in bad faith is the pertinent issue that drives
the outcome of whether there has been sanctionable spoliation here. The Waterses argue
that AIG acted in bad faith. AIG concedes some degree of fault but couches its culpability
as mere inadvertence or negligence.
The Waterses argue that undisputed evidence confirms: (1) AIG had a known duty
to preserve evidence relating to existing litigation; (2) AIG and its Louisiana counsel

became the custodians responsible3 for the samples when they issued a subpoena to compel
release of the samples from LSU; (3) AIG and its counsel were responsible for the
instructions given to LSU and to AIG’s vendor for shipping, preservation, and destruction;
(4) AIG and its legal counsel failed to instruct the vendor to preserve the samples and in
fact authorized their destruction by failing to check the appropriate boxes on the vendor

instruction form; 5) AIG and its legal counsel ignored communications from the vendor
about the pending destruction of the samples; and (6) AIG did not include the Waterses in
any of these decisions.
In response, AIG primarily focuses on its intent and whether it engaged in an
affirmative act causing the evidence to be lost. This factor does not require establishing

3 This is confirmed by the testimony of Dr. Lindsay and NMS Labs and the sample submission
form. (See Doc. 164-11 at 27, 36–37, 51, 54; Doc. 164-31 at 10.)
AIG’s intent or motive when it performed the affirmative act. See, e.g., Bell Aerospace
Servs., Inc., 2010 WL 11425322, at *2 (finding an affirmative act because “there is no
question that Hall affirmatively caused the evidence to be lost when he allowed the 2002
laptop to be reformatted – which resulted in the complete loss of data on the computer”)

(emphasis added); Jarvis v. TaylorChandler, LLC, 480 F. Supp. 3d 1339, 1357 (M.D. Ala.
Aug. 19, 2020) (“Second, Stuart admitted that she engaged in acts that caused the evidence
to be lost.”).
The Waterses contend that AIG committed a volitional act when AIG “specifically
authorized” NMS Labs to discard the vitreous fluid samples as evidenced by the manner
in which AIG, through its Louisiana attorney, completed the shipping and testing

instructions for NMS Labs; that is, failing to check the box that would have required NMS
Labs to preserve the samples. The Waterses also point to the instructions given by Dr.
Lindsay to AIG as well as the numerous follow up communications by NMS Labs about
its intention to destroy the samples unless directed otherwise.
AIG argues that it never affirmatively instructed NMS Labs to destroy the samples.

Instead, it contends there was merely an inadvertent omission on its part in not instructing
NMS Labs to preserve or return the samples, a sin that has not been sanctioned by other
courts. See Brooks v. Phoenix Metals Co., No. 1:15-CV-3612-ODE-JKL, 2017 WL
11093573, at *9 (N.D. Ga. May 22, 2017) (holding that “[t]he PeopleNet documents were
deleted by a third-party vendor as a matter of routine maintenance” and did not prove that

the nonmoving party acted “with intent to deprive or bad faith when it failed to preserve
the PeopleNet documents”); Managed Care Sols., Inc. v. Essent Healthcare, Inc., 736 F.
Supp. 2d 1317, 1332 (S.D. Fla. 2010) (“There is no evidence that the defendant
intentionally deleted the emails and email attachments or intentionally failed to place the
litigation hold until June 2009 to ensure that relevant emails and attachments would be
deleted.”).

AIG’s position is very troubling, as it condones destruction by inaction. What does
appear to be undisputed is that AIG undertook multiple affirmative actions at considerable
expense to obtain the fluid samples with the intention of testing them, but AIG took no
actions whatsoever to preserve, protect, or have the samples returned despite multiple
opportunities to do so. As the record shows, aside from its general duty to preserve
evidence, AIG ignored the written instructions from NMS Labs when the samples were

initially submitted for testing. It then ignored two follow-up communications from NMS
Labs that informed AIG of its intention to destroy the samples. Again, AIG did not nothing
to respond or to protect the samples. Indeed, AIG has not identified a single act it undertook
to preserve the vitreous samples, and none of the “routine procedures” cases cited by AIG
bear any resemblance to what AIG did here.4

At its best, AIG’s conduct was reckless; at worst, it was intentional. Failing to take
any steps to preserve evidence is sufficient to find that more than “mere negligence” was
involved. See Flury, 427 F.3d at 944-45; Oil Equip., 661 F. App’x at 656 (affirming
dispositive relief because the spoliator: (1) excluded the opposing party from its
examination of the evidence, (2) failed to preserve the evidence or allow the opposing party

4 The Waterses devote many pages of their brief arguing about a settlement agreement reached
between counsel concerning the Louisiana litigation. The Court sees little value in analyzing an
issue that has little relevance as to whether spoliation has actually occurred.
to examine the evidence, and (3) the destruction of the evidence prevented the opponent
from “gathering critical evidence relevant to its theory.”); Long, 2013 WL 12092088, at *7
(“[T]here is circumstantial evidence of bad faith in this record because it is undisputed that
Defendant knew of the video’s relevance to potential litigation and understood the duty to

preserve the video.”). Accordingly, the Court concludes the Waterses have proven
spoliation occurred here.
Because there is no jury in an ERISA action, the remedies for spoliation are
somewhat narrowed here. Remedies include (1) a default judgment; (2) an irrebuttable or
rebuttable presumption of some sort; and (3) striking of experts or some or all of their
opinions. The Court finds that an appropriate sanction or remedy is a finding, in a light

favorable to the Waterses, of a presumption of what the vitreous samples may have shown
had they been tested. That is, that the testing of the vitreous samples would have revealed
an alcohol content less than that indicated by the test results from the cardiac blood.
But even with this presumption in place, the Waterses have not presented any
evidence, through expert opinion or otherwise, that all of the alcohol in Cody’s system was

attributable to postmortem issues. Instead, Dr. Valentine opines that some of the alcohol in
Cody’s system “could” have been caused by postmortem fermentation and that some could
be attributable to postmortem redistribution. A presumption that the vitreous fluid would
have shown no alcohol in Cody’s blood is not supported by the record evidence or by any
proffered scientific opinion and would be inappropriate here, even as a spoliation sanction.

Therefore, the question at issue is what level of alcohol existed in Cody’s system at
the time of the accident due to his own consumption of alcohol versus the amount that
could be attributed to postmortem issues. The Court will expound on this later in its
analysis of the administrative record.
C. The Court’s Scope of Review
The first step of this Court’s ERISA analysis is de novo review, which is a review

without deference to AIG’s decision. Firestone Tire & Rubber Co., v. Bruch, 489 U.S.
101, 115 (1989); Williams v. BellSouth Telecomm., Inc., 373 F.3d 1132 (11th Cir. 2004),
overruled on other grounds by Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d
1352 (11th Cir. 2008); Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350 (11th Cir. 2011).
The claim is then decided in the same way as an ordinary civil contract claim. Bruch, 489
U.S. at 112–13.

There is some disagreement between the parties as to the evidentiary scope of the
Court’s review. AIG argues for review based strictly on the record that was before the
claims administrator, and the Waterses argue for consideration of all the evidence,
including the post-claim appeal and post-lawsuit depositions. Shaw v. Con. Gen. Life Ins.
Co., 353 F.3d 1276, 1284 n.6 (11th Cir. 2003) (“As a rule, de novo review permits the

parties to put before the district court evidence beyond that which was presented to the
administrator at the time the denial decision was made”); Kirwan v. Marriott Corp., 10
F.3d 784, 789 (11th Cir. 1994) (“In this circuit, a district court conducting a de novo review
of an Administrator’s benefits determination is not limited to the facts available to the
Administrator at the time of the determination.”); Moon v. Am. Home Assur. Co., 888 F.2d

86, 89 (11th Cir. 1989) (“American Home’s contention that a court conducting a de novo
review must examine only such facts as were available to the plan administrator at the time
of the benefits denial is contrary to the concept of a de novo review.”).
While the Court does not necessarily agree that the scope of its de novo review is as
broad as the Waterses claim, it is likewise not as narrow as AIG suggests. Instead, the Court

will undertake its review in consideration of both parties’ respective positions; that is, de
novo wrong review based strictly on the administrative record at the time of the initial
claims decision, then again at the time of the claim appeal decision, and then again based
upon the entirety of the evidentiary record presented to this Court.
D. The Policy’s Intoxication Exclusion
Under the AIG policy, benefits are payable when the death is the result of an

accident, and the particular cause of the accident is not excluded under the policy’s
exclusion provisions. Here, AIG did not dispute that Cody’s death was the result of an
accident. Instead, AIG concluded that the loss was excluded from coverage under the
policy’s intoxication exclusion, which reads, “[t]he Policy does not cover any loss caused
in whole or in part by, or resulting in whole or in part from, . . . the Insured Person being

under the influence of drugs or intoxicants, unless taken under the advice of a Physician.”
(Doc. 173-2 at 49.)
The exclusion does not provide for a specific BAC or that Cody be deemed
intoxicated under any particular state law that sets forth presumed levels of intoxication.
See Whiteside v. Securian Life Ins. Co., No. 8:17-CV-853-T-30AAS, 2017 WL 8897132,

at *7 (M.D. Fla. Dec. 7, 2017) (distinguishing between exclusions referencing state-law
presumptions and a “broader” one requiring only a loss resulting in part from “the use of
alcohol”). The exclusion language only requires that the insured’s accident result in whole
or in part from the insured being “under the influence” of alcohol.5
Therefore, here, the record must establish that it is more likely than not that Cody’s
death was, at least in part, caused by or resulted from Cody being under the influence of

any degree of an intoxicant, such as alcohol. See Horton v. Reliance Standard Life Ins. Co.,
141 F.3d 1038, 1040 (11th Cir. 1998) (“[I]f the insurer claims that a specific policy
exclusion applies to deny the insured benefits, the insurer generally must prove the
exclusion prevents coverage”); see also Raymond v. Life Ins. Co. of N. Am., 924 F. Supp.
2d 1345, 1351 (S.D. Fla. 2010) (holding that, because Ambien had been prescribed and
was at least “in part” the cause of the fatal polydrug toxicity, the medical treatment

exclusion excluded coverage).
E. The Claim Decision Based on the Administrative Record
As shown by the administrative record, AIG primarily relied on evidence from the
State of Louisiana’s investigation into the cause of the crash and the Shreveport Police
Department’s resulting Uniform Motor Vehicle Traffic Crash Report. That report, and the

accompanying file, included a statement from the sole eyewitness that Cody’s truck, for no
readily apparent reason such as avoiding an animal or another vehicle, veered to the side,
swerved back and forth, and flipped over before coming to a rest. Cody, who was not seat-
belted, was ejected from the truck.

5 Although state law is not relevant to the interpretation of the policy, the Court notes that Louisiana
law defines “operating a vehicle while intoxicated” both as having a BAC at or above 0.08 or as
being “under the influence of alcoholic beverages.” La. Stat. § 14:98. The latter definition would,
by necessity, include being “under the influence” at a BAC lower than 0.08.
The file also included the medical examiner’s autopsy report which noted, based on
the official toxicology results indicating a 0.113 BAC, that there was a “[h]igh level of
ethanol” in the postmortem blood, as well as the Louisiana Certification of Death which
also listed “ethanol use” as the only “significant conditio[n] contributing to death.”

Therefore, based on these records, the Shreveport Police Department’s traffic crash
reconstructionist/crash investigator concluded that the “causal factor of the crash [was]
determined to be careless operation of the motor vehicle due to ethanol intoxication
(alcohol impairment).” (Doc. 173-6 at 39.)
All of these records—which importantly came from neutral, disinterested parties—
constitute the official statement from Louisiana authorities as to the cause of the accident

and Cody’s death. And none of these documents have been amended, supplemented, or
officially challenged by the Waterses with the Louisiana authorities to reflect anything
other than that alcohol was involved in the accident.
Courts routinely hold that a claims administrator is not de novo wrong to rely on a
death certificate and autopsy report in evaluating claims for death benefits. See, e.g., Lann

v. Metro. Life Ins. Co., 371 F. Supp. 3d 1185, 1192 (N.D. Ga. 2019) (concluding that claims
administrator was not de novo wrong in doing so). Moreover, these official documents are
“particularly persuasive” because they are “prepared by independent government
employees pursuant to statutory duties, with no interest in the outcome of a subsequent
claim for insurance benefits.” Id. at 1193 (citing Hancock v. Metro. Life Ins. Co., 590 F.3d

1141, 1156 (10th Cir. 2009); Sorrells v. Sun Life Assur. Co. of Can., 85 F. Supp. 2d 1221,
1233 n.20 (S.D. Ala. 2000)); see also Zieglar v. Reliance Standard Life Ins. Co., No.
606CV1176ORL28UAM, 2007 WL 9701531, at *6 (M.D. Fla. Oct. 29, 2007) (finding that
a claims administrator was not de novo wrong to rely on the “reasonable conclusion by an
unbiased crash investigator conducting a traffic homicide investigation for the purposes of
the Florida highway Patrol—not for [claims administrator] or for Plaintiff.”).

The third-party official investigation in this case eventually resulted in the
conclusion that alcohol was involved in Cody’s accident. The medical examiner included
the toxicology report as part of his autopsy without comment or criticism. And the accident
investigator, with the additional benefit of his own accident scene observations and the
statement of the eyewitness, concluded that alcohol was involved as a contributing factor
in Cody’s death. These unbiased third-party conclusions are satisfactory evidence of

Cody’s intoxication and its contribution to the accident and Cody’s death, and for this
reason, the Court concludes that the claims administrator’s decision to deny the claim based
on the intoxication exclusion was not de novo wrong.
The Court further concludes that the arguments raised by the Waterses to attack the
cardiac blood BAC results do not change the outcome. The Waterses argue that these

neutral-party conclusions are all tainted by the cardiac blood test results, which are
unreliable because of alleged issues associated with postmortem fermentation and
redistribution/diffusion. The problem with these arguments is that they generally are not
supported by concrete objective evidence that any fermentation or redistribution actually
occurred, let alone occurred with a sufficient degree to altogether explain away all or a

substantial amount of the alcohol in Cody’s system.
Indeed, the various theories submitted by the Waterses each suffer from one sort of
malady or another. For example, the Waterses point to Dr. Valentine’s assertion that
Cody’s body went unrefrigerated for an extended period of time, and therefore the alcohol
in the cardiac blood specimen “could, in part, be attributed” to postmortem formation of

alcohol. But Dr. Valentine did not point to any evidence that the body was unrefrigerated
or otherwise handled in such a manner that would have produced sufficient postmortem
alcohol to render the blood sample materially unreliable for purposes of a BAC
determination. Instead, he opines that the alcohol “could” be “at least in part” considered
postmortem alcohol fermentation, but never quantifies what that amount may be.
And further, his opinion appears to be premised upon unsupported speculation about

the handling of the body in the hours after the accident, and one that conflicts with the
actual evidence in the record. The administrative record reveals that the coroner’s office
arrived at the scene of the crash not long after the accident, took possession of Cody’s
body, and that his body was “cold to the touch” when the blood samples were taken during
the autopsy several hours later. Based on this evidence, it would therefore be unreasonable

for the Court to altogether ignore the results of the cardiac blood test and the conclusions
of the state investigators. See Zieglar, 2007 WL 9701531, at *5 (rejecting as conjecture
the plaintiff’s retained toxicologist’s similar opinions about the body being left
unrefrigerated and “‘significant bacterial and fungal growth’ that ‘could’ have resulted”
and concluding that the claims administrator was not de novo wrong to reject them);

Sorrells, 85 F. Supp. 2d at 1233 n.20 (rejecting chain-of-custody argument where no
evidence supported that official test results were compromised).
Further, the Waterses’ reliance on the general premise that vitreous fluid is a better
indicator of BAC at the time of the accident does not change the analysis. Indeed, Dr.
Valentine does not provide any persuasive or concrete authority stating that measuring
BAC from cardiac blood is strictly prohibited, generally unreliable in and of itself, or

should not be given any degree of persuasiveness. At best, his opinions attribute potentially
some of the alcohol content to postmortem events. And most tellingly, nowhere does he
attribute all of the observed ethanol to events separate and apart from Cody’s consumption
of alcohol.
But even assuming Dr. Valentine’s theories were true, it does not eliminate the
likelihood that Cody consumed alcohol and that it was in his system at the time of accident,

or the reasonable conclusion that Cody’s alcohol consumption contributed to his accident
and death. See, e.g., Whiteside, No. 8:17-CV-853-T-30AAS, 2017 WL 8897132, at *7
(finding that an expert’s conclusion that the toxicology report’s 0.234 BAC was wrong,
and that decedent’s BAC was “only between 0.015 g% and 0.079 g%” did not negate the
reasonable conclusion that alcohol contributed to the decedent’s death).

The Waterses’ attack on the question of causation suffers from similar deficiencies.
Putting aside the independent findings of the accident reconstructionist and medical
examiner, the administrative records contain the observations of Dr. Lage, who was
retained to perform a review of the alcohol evidence. He explained that, with a BAC of
even .08, Cody would have been experiencing diminished judgment, dulling of attention,

sedation, impaired coordination and possibly disorientation, impaired balance, and slurred
speech. He also opined that Cody still would have experienced dulling of attention,
sedation, and impaired coordination down even to a BAC of 0.05.
These physiological effects are consistent with the events of the crash as explained
by the sole eyewitness—who is, again, a disinterested, neutral witness—that is, Cody was

driving his truck without a seatbelt late at night, veered left and right, lost control, and
flipped, all of which are consistent with a diminished capacity due to alcohol consumption.
See Prelutsky, 692 F. App’x at 974 (upholding the reasonableness of similar conclusions
about the causal relation between intoxication and a decedent’s death, even though no one
had witnessed his fall down the stairs, concluding that his intoxication “could have
prevented him from catching himself, or covering his head, or mitigating the impact of his

fall in some other way.”).
The Waterses try to poke holes in the investigating officer’s causation conclusions
by arguing that there were other “plausible scenarios” that could explain the accident, such
as falling asleep at the wheel and then reacting upon awakening to another car entering the
roadway. But the officer who investigated the accident explored the scenario that Cody

may have been attempting to avoid another vehicle. He examined the truck and questioned
the eyewitness about a possible collision or impact. Following his investigation, the officer
made no finding that another vehicle caused the accident. Regardless, even the involvement
of a second vehicle would not rule out alcohol as a contributing factor in the accident.
Based on the Court’s review of the administrative record, the Court concludes that

AIG’s claim decision was not wrong. To the contrary, the State of Louisiana’s official file
based on its officials’ own independent investigations identified alcohol as a causal factor
to the accident and Cody’s ultimate death. Dr. Valentine’s report and supporting documents
do not undermine this conclusion, at least not to a degree sufficient to discredit the
reasonable conclusions of Louisiana officials. While Dr. Valentine attempts to place doubt
on the source of some of the observed alcohol in Cody’s system, he does not explain away

all of it. Based on the totality of the facts in the record, and in light of the exclusion language
in the policy, the Court concludes that AIG’s claim decision was entirely reasonable and
consistent with the evidence and the policy.
F. Additional Evidence from the Full Administrative Record
Consideration of the additional evidence between the filing of this action and the
final appeal decision does not change the Court’s determination that AIG’s claim decision

was reasonable and not wrong. Instead, the additional evidence only strengthens this
conclusion.
The additional evidence that falls into this scope of review primarily includes the
final report from Dr. Lindsay, who was retained to address and respond to Dr. Valentine’s
report. In her report, Dr. Lindsay concluded that Cody’s manner of driving is consistent

with alcohol intoxication and that there is no factual support for Dr. Valentine’s
conclusions about postmortem synthetization of or redistribution/diffusion of ethanol in
Cody’s body.
The Waterses attempt to lessen if not negate the impact of Dr. Lindsay’s report by
characterizing some of Dr. Lindsay’s opinions as based on hearsay; for example, whether

the body was refrigerated and when. But under an ERISA administrative record review,
the Federal Rules of Evidence do not apply. And further, from a factual basis standpoint,
even the medical examiner’s own log of events does not support Dr. Valentine’s theory.
As Dr. Lindsay stated, refrigeration of the body and the short interval between death and
autopsy “would have prevented any significant bacterial action.” (Doc. 62-2 at 4.)
Dr. Lindsay also points to other evidence that the cardiac blood sample did not

undergo postmortem alcohol fermentation because, for example, the sample did not contain
other “volatiles” which would typically exist if there had been fermentation. The Waterses
contend that this does not “prove” that the cardiac blood was reliable because studies have
shown that other volatiles are more common and that not all volatiles are present in every
case of fermentation. (Doc. 188 at 34.) But the fact that this evidence may not definitively
prove the proposition does not render it non-evidence. In fact, Dr. Valentine’s own article

confirms that the presence of other volatiles is indicative of postmortem formation of
alcohol and that the lack of those volatiles would constitute evidence that no postmortem
alcohol formation had occurred.6
Dr. Lindsay also provided further response to Dr. Valentine’s equivocal opinions
about redistribution/diffusion. While Dr. Valentine would only say that redistribution

would have contributed some unknown amount of alcohol to the observed BAC,
Dr. Lindsay explained, with supporting articles, that “[e]thanol does not exhibit significant
post-mortem redistribution to the extent that it would have altered the cardiac to peripheral
(C:P) blood alcohol ratio by any significant degree.” (Doc. 173-19 at 234.)

6 In a section entitled, “Criteria for Recognizing Post-Mortem Ethanol Production,” Dr. Valentine
states that “[t]he two criteria for identifying post-mortem ethanol production are an abnormal
distribution of ethanol among body tissues and the presence of low molecular weight volatile
compounds by gas chromatography during the analysis of ethanol." (Doc. 173-15 at 4.)
The Waterses also challenge Dr. Lindsay’s opinions as they concern the connection
between BAC and Cody’s accident. In her report, Dr. Lindsay provided additional
information about the negative effects alcohol has on driving performance, noting that a
BAC of 0.10 lengthens reaction time “by 80 percent” and “severely impair[s]” coordination

and perception. (Doc. 173-19 at 234.) She also noted that even at BAC’s below 0.08
“[v]isual tracking, peripheral vision and glare recovery is also severely impaired.” (Id.)
Consistent with Dr. Lage’s report stating that drivers with BAC’s as low as 0.02 and 0.04
are at risk of fatal car crashes at a 1.4 times higher rate than normal drivers (Doc. 173-3 at
3), Dr. Lindsay stated that alcohol consistently impacts driving performance at 0.04 BAC
and as low as 0.02, (Doc. 173-19 at 234). She further stated that “[i]ncreased risk taking

sets in at BAC’s below 0.05 g/dl” and “[c]omplex reaction time, coordination, decision
making, balance and vision are all impaired below 0.05 BAC” with “[t]he majority of the
studies showed impairment at less than 0.07 BAC.” (Id.) This provides further support for
the conclusion that, even if an insignificant portion of Cody’s 0.113 BAC was due to
fermentation or redistribution, Cody being “under the influence” of even a small amount

alcohol likely contributed to the accident.
Based on the full administrative record at the time of the final decision, the Court
agrees with AIG that Cody being “under the influence” of alcohol contributed, at least in
part, to his fatal crash.
G. Consideration of Evidence Outside the Administrative Record

The evidence outside the administrative record only further supports the conclusion
that AIG’s denial was not de novo wrong. This evidence consists largely of deposition
testimony from each of the experts who provided reports, expert testimony from yet
another expert, Dr. Johnson, a rebuttal report from Dr. Valentine, and records received in
response to subpoenas, including records from LSU.
LSU’s records confirm that, before his autopsy, Cody’s body was refrigerated in

“Cooler #28” after 1:46 a.m. the night of the crash—roughly two hours after the accident.
Further, Dr. Johnson’s expert report confirmed the opinions of Dr. Lindsay and Dr. Lage
that the time between death and autopsy would not have been long enough to raise concerns
about postmortem alcohol formation. Although Dr. Valentine’s rebuttal report asserted
that the time between death and autopsy would not have been “too short for any
microorganism growth and production of neo-alcohol,” Dr. Valentine never stated that the

time frame generally was enough to produce a materially significant amount of alcohol.7
(Doc. 173-22 at 3.) Indeed, not once does Dr. Valentine opine that all of the BAC can be
attributed to fermentation, or any sources other than Cody’s own consumption of alcohol.
At best, Dr. Valentine provides opinions for lessening the BAC observed in the cardiac
blood; he does not altogether eliminate it.

Dr. Johnson also confirmed the prior statements about the effects of alcohol and
their consistency with the reports of the crash. In the end, Dr. Johnson stated that,
“[a]lthough due to the potential for postmortem redistribution we will never know the

7 As additional evidence that Dr. Valentine’s opinions lack credibility, AIG produced Dr.
Valentine’s testimony from another case in Mississippi where he testified that postmortem
fermentation is a “slow process” that would take “between one to two days” at room temperature
before “you could start seeing the alcohol produced.” (Doc. 185-2 at 24–25.) The Court agrees that
Dr. Valentine’s opinions are vague, general, lack specificity, and contradict both the record facts
and his own prior testimony.
precise BAC of [Decedent] at the time of the crash, we do know to a scientific certainty
that consumption of alcohol occurred prior to the crash, and the circumstances surrounding
the crash are consistent with the intoxicating effects of that alcohol.” (Doc. 173-21 at 7.)
He also echoed Dr. Lage and Dr. Lindsay’s statement about the effects of alcohol on

driving performance, noting symptoms including lack of vigilance, inability to maintain a
lane of travel, inability to properly react to emergency situations, and impaired decision-
making and referred to studies showing that a BAC of even 0.02 can “slow reaction times
and make it difficult to react in emergency situations.” (Doc. 173-21 at 4–5.)
Outside the administrative record, the Waterses have identified a host of other
possible explanations for the cause of Cody’s accident. But none of them appear factually

supported. For example, the Waterses suggest that high winds could account for Cody’s
erratic driving behavior. But AIG presented evidence that there were no high winds that
evening.
Citing to a New York Times article, the Waterses also argue that trucks are more
likely to roll over than other vehicles and that single-vehicle rollovers more often than not

have nothing to do with alcohol consumption. But even that theory defies plausibility
because it does not, for example, explain the left and right swerving of Cody’s vehicle (that
is, the loss of control) before it spun around and flipped over. And further, the cited article
acknowledges that Cody’s truck was no more likely to roll over than any other vehicle.
Rollover Ratings for Vehicles Is Released, THE NEW YORK TIMES (July 15, 2003)

(available at https://www.nytimes.com/2003/07/15/us/rollover-rating-for-vehicles-is-
released.html).
Similarly, the Waterses’ citation to an April 2002 National Highway Traffic Safety
Administration report about the lack of connection between rollover crashes and alcohol
consumption is unavailing. Indeed, a plain reading of the NHTSA report actually shows
the opposite.8 As the report notes, the majority of single-vehicle fatal rollovers are related

to alcohol ingestion (53%). And that percentage increases to 61% when it is limited to
pickup trucks like the one Cody was driving. (Doc. 188 at 20 n.19.) (“Involved drivers in
single vehicle fatal rollovers were even more likely to have tested positive for blood
alcohol. With the exception of SUV and van drivers, the proportion of drivers with positive
BAC was over 50 percent, led by the pickup truck drivers, 61 percent of whom had positive
BAC test results.”).

Based on consideration of all of the evidence, including evidence outside of the
administrative record, the Court concludes that AIG’s denial of the Waterses’ claim for
death benefits was not de novo wrong.
H. Consideration of All Evidence with Spoliation Finding
Finally, the Court concludes that AIG’s claim decision was not de novo wrong even

if AIG had not allowed the vitreous fluid samples to be destroyed; that is, had the samples
been tested and had they shown a BAC less than that indicated by the cardiac blood.
Of all the remedies available where spoliation has occurred, the one the Court finds
warranted here is an adverse inference. Like a jury, the Court will undertake its review

8 See Characteristics of Fatal Rollover Crashes, U.S. DEPT. OF TRANSP., NATIONAL HIGHWAY
TRAFFIC SAFETY ADMINISTRATION, p. 37, DOT HS 809 438 (Apr. 2002), available at
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/809438.
under the premise that had the vitreous samples been tested, they would have revealed a
BAC lower than .113; that is, a level lower than what the cardiac blood test revealed. But
the Court elects not to infer that Cody’s BAC would have been zero because even the
Waterses’ own expert, Dr. Valentine, does not state as much. Instead, giving his opinions

the benefit of the doubt, the sum total of his testimony and the referenced peer review
articles is that some degree of the ethanol content in Cody’s system would be due to
postmortem events. Importantly though, Dr. Valentine never says what that amount would
have been, and nor do the peer review articles that he has presented. Drs. Lage, Lindsay,
and Johnson, however, state that the impact would be minimal at best. And the experts’
cited articles appear to attribute postmortem synthesis of a materially significant amount

to factual scenarios very different from those presented here. Accordingly, the Court will
infer, based on the totality of the record evidence, that some minimal amount of alcohol is
attributable to postmortem factors.
The question then is whether this inference would make AIG’s claim decision de
novo wrong. The Court concludes that it does not. First, the insurance policy does not

condition application of the intoxication exclusion on a particular BAC level. Instead, the
policy conditions its application on whether Cody being under the influence of an
intoxicant, regardless of his BAC level, contributes to the accident even in part.
Here, the record reflects that a single-vehicle accident occurred late at night, without
any extraneous cause, by a person who had consumed some amount of alcohol in the hours

before the accident. The Court cannot say that a BAC at some level below 0.113, with all
else being same, would render moot or less reliable the opinions of the Louisiana officials
who investigated the accident and examined Cody’s body. Nor would it render application
of the policy exclusion wrong. Because again, the policy language requires only that the
insured’s consumption of alcohol contribute only in part to the accident. The evidence in
the record indicates that Cody did consume alcohol and that it played at least some role in

his accident. AIG’s claim decision was not de novo wrong under these facts. The Court,
therefore, ends it inquiry and affirms AIG’s claim decision.
IV. CONCLUSION
Upon review of the record, the Court concludes that AIG’s decision was not de novo
wrong. Accordingly, it is ORDERED as follows:
1. The Plaintiffs’ Motion for Relief Concerning Destruction of Evidence (Doc.

163) is GRANTED in part. It is granted to the extent that the Court concludes the
Defendants have spoliated evidence and are entitled to relief in the form of an adverse
inference as to what the vitreous fluid would have shown had it been tested. All other
requested relief is DENIED.
2. The Plaintiffs’ Motion to Exclude Testimony of Robert D. Johnson, Ph.D.

(Doc. 169) is DENIED.
3. The Plaintiffs’ Motion to Exclude Testimony of Janci Lindsay (Doc. 170) is
DENIED.
4. The Plaintiffs’ Motion for Summary Judgment (Doc. 171) is DENIED.
5. The Defendants’ Motion for Judgment as a Matter of Law (Doc. 172) is

GRANTED.
6. The Defendants’ Motion to Exclude or Limit Testimony of Plaintiffs’ Expert
Jimmie Valentine (Doc. 174) is DENIED.
7. The parties shall bear their own costs.
DONE, on this the 22nd day of June, 2022.

/s/ R. Austin Huffaker, Jr.
R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987835. Public record. Not legal advice.