Janus v. Twerskoi

In Janus v. Twerskoi (2009 WL 7433856 [Colo Dist Ct, Apr. 14, 2009, No. 2007 CV 2197]) the Court refused to equate the obtaining of medical treatment as a spoliation of evidence. (Id. 10-11.) The Colorado state court in Janus v. Twerskoi referred, without citation, to "the old trial lawyers' maxim that 'litigation cannot dictate medical treatment.' " (Id. 11.) In Janus v. Twerskoi, the plaintiff underwent restorative dental surgery without permitting the defendant the opportunity to film the plaintiff's mouth prior to surgery and to see how the alleged dental malpractice affected the plaintiff. (Id. 8.) The court, although not calling the dental surgery a "spoliation," decided to take "guidance from 'spoliation' cases" and called for the parties to do further factual briefing that may aid the court in determining whether an adverse inference and instruction or a lesser spoliation sanction was appropriate. (Id. 18-25.)