Heather Isringhausen Gvillo Nov. 17, 2014, 10:49am

EAST ST. LOUIS, Ill. (Legal Newsline) – An Illinois federal judge granted several motions to dismiss allegations that the defendants destroyed or spoiled evidence in an asbestos case after the plaintiff failed to adequately describe the events leading to the spoliation allegations.  

Judge Staci M. Yandle delivered the Oct. 31 order in the U.S. District Court for the Southern District of Illinois, granting several defendants’ motions to dismiss Counts IV and V of plaintiff Gerald D. Mcalvery’s complaint.

Mcalvery initially filed his complaint alleging the defendants contributed to his development of an asbestos-related injury in the Madison County Circuit Court before it was removed to the district court.

As part of his complaint, Mcalvery alleges the defendants willfully and wantonly or negligently spoiled evidence.  Previously, the defendants sought to dismiss the spoliation claims.

The court agreed with the defendants and dismissed the claims. However, it noted that if the plaintiff could develop evidence showing the defendants could have anticipated lawsuits and should have preserved evidence, then he may file a motion for leave to amend and reinstate the claim.

Addressing Count V specifically, the court explained that the Illinois does not recognize the claim for willful and wanton spoliation.

Mcalvery responded by filing an amended complaint and against alleged the same spoliation allegations against the defendants.

Yandle stated that the wording of both Counts IV and V in the second amended complaint does not raise any additional information to alter the court’s original determination on the claims.

Additionally, there are three pending motions to dismiss the counts and Mcalvery was required to file responses to the motions on July 28, Aug. 4 and Aug. 7, but he failed to respond to any of the motions.

The court, therefore, issued an order to show cause why a response to these motion was not filed by Oct. 20, but Mcalvery again failed to respond.

“Courts are reluctant to dismiss a case on technical grounds and prefer to decide cases on their merits,” Yandle wrote.

Yandle held that while a complaint might not contain all of the facts that would be necessary to prove a claim, it should be “short and plain” and it should notify the defendant of the disputed events.

In this case, Mcalvery’s allegations in the two counts failed to sufficiently describe the events leading to the claims.

Additionally, he did not alter the language of the complaint after he supposedly amended Counts IV and V and failed to file any responses to the defendants’ motions to dismiss.

As a result, the court adopted its previous ruling and granted the defendants’ motions to dismiss.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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