The opinion of the court was delivered by: ROBINSON
Plaintiff became infected with the HIV-1 virus as a result of a blood transfusion given to her during bypass surgery at Walter Reed Army Medical Center on March 1, 1990. On July 20, 1990, the Army's Camp Memorial Blood Center notified Walter Reed that a previous donor tested HIV-positive and requested an investigation ("look back") to identify the recipient of the tainted blood. On August 17, 1990, Walter Reed confirmed through the "look back" process that plaintiff had received the HIV-tainted blood. On February 19, 1991, plaintiff was tested, and it was determined that she had become HIV-positive. Prior to September 9, 1991, plaintiff's counsel requested plaintiff's medical records from Walter Reed Army Medical Center. The tainted blood given to plaintiff was designated "donation C" and the subsequent donation which confirmed that the donor was HIV-positive was designated "donation D." In October and November of 1991, the remainder of "donation C" was exhausted by testing conducted by the Army, and is therefore unavailable to plaintiff. See Memorandum of Points and Authorities in Support of Plaintiff's Motion in Limine ("Plaintiff's Memorandum") at 4-5.
Plaintiff seeks entry of an order precluding the defendant from introducing and evidence, direct or circumstantial, as to the condition, testing, or test results of any of the "donation C" sample on the ground that the failure of the Army to preserve some portion of the sample violated FDA regulations, and that the Army's subsequent willful destructive testing of the remainder of "donation C," without notice to the plaintiff and an opportunity to have plaintiff's own experts present during such tests, amounted to spoliation of evidence after the government had notice of a probable claim by plaintiff. See Plaintiff's Motion at 1.
Plaintiff, in her reply, asserts that no showing of bad faith or deliberate destruction is necessary. Plaintiff argues that defendant's destruction of the remainder of "donation C" without notice to the plaintiff and an opportunity to have plaintiff's own experts present during the testing was knowing and willful. Plaintiff claims that she is prejudiced because she cannot now attempt to demonstrate either that the blood was improperly screened, or would have tested positive if retested for the presence of antibodies to HIV. See Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion in Limine ("Plaintiff's Reply") at 5-6. Plaintiff claims that the government was on notice of a potential claim from the time the donor's sample was found to be HIV-positive. Plaintiff's Reply at 3; see Plaintiff's Memorandum at 6.
The controlling law in the District of Columbia regarding the loss of evidence in civil cases is set forth in Battocchi v. Washington Hospital Center, 581 A.2d 759 (D.C. 1990). The Battocchi court identified two sub-categories of behavior within the meaning of the term "spoliation," the first being the deliberate destruction of evidence and the second, the failure to preserve evidence. Relying on precedent from two circuits and this court, the court in Battocchi held that
it is well-settled that a party's bad faith destruction of a document relevant to proof of an issue at trial gives rise to a strong inference that production of the document would have been unfavorable to the party responsible for its destruction....
The prevailing rule is that, to justify the inference, "the circumstances of the [destruction] must manifest bad faith."
Battocchi v. Washington Hospital Center, 581 A.2d at 765-66 (citations omitted).
The Battocchi court includes in the definition of "bad faith" destruction or concealment both "deliberate" destruction or concealment, and destruction or concealment with "reckless disregard" for the relevance of the evidence. Battocchi v. Washington Hospital Center, 581 A.2d at 766. The court reasoned that "where the proffered evidence demonstrates that documents were concealed or destroyed in bad faith ... a trial court may well abuse its discretion by refusing to allow factual inferences adverse to the culpable party to be suggested to the jury through an instruction or argument of counsel." Id. (citations omitted).
The court in Battocchi found that some greater measure of discretion rested with the trial court where the loss of evidence is the result of the "failure to preserve" it, rather than any intentional or reckless conduct: