the st basis was foliation about us secondly to dish court found that coastal redhead coastal bridge had not eliminated other potential causes of the fire and therefore could not carry its burden on causation in addition the district court believed that the heat tech service technician who was servicing and troubleshooting the hot ball here at the time of fire did not breach the duty of reasonable care of two postal understand you to say him before the district that you had the pumps and that they were available at some point at the time of your argument before the district court you're on and did the the he tech did not ask to inspect those motors therefore coastal red did not have not opportunity to search for them to look for them or presentiment if they were there to the inspection or after the inspection that they be inspected d by the tech the tech is the manufacturing designer of this system it has a period dollars why did it take them two years to ask for a raise these pumps as an issue and i would also respectfully submit that there is no bad faith the whose members is jones requires bad  there is no bad faith on the part opposed to bridge respect to any of the evidence in this case and in particular those parks because they were never made an issue by hea three reasons and then used you said if the district court is wrong about any one of those we have to send it back because you get past summary judgment i actually read him as saying there's three independent reasons summary judgment is appropriate in which case you'd have to knock them all out so so tell me why my understanding of this decision is wrong because normally if you have no causation that alone throws you out of court if you have no breach that alone throws granting the motion and dismissing the case i didn't i didn't read where he stayed in that it was separate and independent reasons and i submit that one bases could affect it the other agree with you on spoken haitian you still have to overcome that there's no breach of duty which is one of the other district courts reason that's  correct the breach of the duty is a question of fact for the fact finding the fact finder in this case is that europe is considering a motion for judgment that the judges option it is not to weigh the evidence and determine the truth of the matter here we have a troubleshooting situation between he tech and coastal bri and instructed the coastal bridge operator to actuate a bow on the heater which caused a displacement and pipes to move while he had a so he had a duty to provide safe instructions in operating this a piece of equipment to do coastal bridge he had knowledge that the asphalt plant experienced a power surge before the service call the company had knowledge that power surges could damage the electrical systems of these of these heaters despite knowing that he instructed coastal bridge to open a fat which caused the displacement and allowing the flame to exit the heater chamber he admitted in his deposition that had he just assumed the burner was off in his should have been all because of the alarm but it wasn't because of the electrical power servers which caused  switches and and the safety switches defect he stated it is that position that had he recognized it as an electrical issue he would have x the bunch more questions and those are his wor carried out and i'll get back to the the question your honor had on the op motors both he tax expert did not complete their investigation but yet he took wants to argue that somehow these observe repub motors are relevant to the inquiry you can't have it both ways you can't complete your you can't say you're missing evidence and then also not perform a complete inspection of the available evidence you can't have it both ways of coastal bridges actions for three independent reason and these are independent reason the noted by both judge cost and just engelhard the district court one dismissed the action appropriately because significant evidence in the case  the order should also be affirmed because there is no evidence of a breach in this in this case that was allow the case to go to a jury for evaluation and finally coastal bridges but as been unable to exclude multiple alternative hypotheses that could have caused this fire other than the theory that an expert has put forward turning st of the issue of spoliation this issue of course is reviewed under an abuse of discretion standard unlike the summary judgment order which would no review and there is ample evidence in the record to support the district court's findings on each of the elements required for spoliation in order for there to be spoke in there must of course be an obligation to preserve as well as both control over the evidence that factors not disputed by coastal bridge in this action that the disposal must be intentional that element is also not disputed in this action the only two elements that are actually disputed in this case are whether or not the disposal was done in bad faith and whether or not there was prejudice in this case there is ample evidence in the record to support both of those factors which are which significantly support the district court's ruling on the st is the issue of bad faith the shortly after this heater fire occurred coastal bridges management conducted in person interviews of their employees who were directly involved in the fire and those wreck recorded interviews confirm that its management identified a potential claim again he tech within twenty four hours of this fire nevertheless no notice was provided to he checked that they were being targeted by a potential claim by coastal bridge what then happened was they notified their object their insurance adjuster and retained an outside expert who conducted an initial evaluation of the heater and during that initial evaluation the heater which the tech did not have notice of and did not participate in the components of this year were removed and partially disassembled the full scope of that disassembly is not known to be tech because we were not present and were not given the afforded the opportunity to participate after that inspection was done you know laterally by total bridge it then moved the heater out of its place and sanitize the area where this year was located cleaned out all the debris that was present and then transported it using a front end loader  chains and deposited on the ground we were also not present during that process and we cannot tell from the record how the heater may have been altered through the process a process of transporting the seed or felt that process was not videoed it was not photographed the after the fire where you placed on notice that there may be a claim against we received a notice letter i believe on april th just over a month after the fire around thirty days after the fire unfortunately by the time we received that notice the pumps had already gone missing the heater had already been moved portions of it had already been disassembled and the heater had been left out in the open unsecured and anyway this was an open yard where outside individuals frequently came in and out of the yard and it was rained upon in the humid louisiana atmosphere for many many days so there had been significant spoliation that occurred before he tech even arrived at this at the site so once he t hours because during the interview of the employees their risk manager who also had previously served as an insurance adjuster and it handled thousands of claims stated that it was that there was a potential product liability claim against it that in or own words reported they reported her saying that and that that was in the record before the district court there's also all these individuals also admitted that right after the fire they knew of their obligation to preserve the heat or their risk management  is quite troubling because their own expert kept saying that the notice was given some thirty days whatever april th are you telling us that there was no dialogue or communication between the two parties or their representatives or even their own so all in the fire and which one of your client representatives was on the phone when the fire occurred there was no communication whatsoever  i believe the i don't know if this is in the record but in full disclosure the court i believe the only communication was an inquiry by postal bridge about a potential replacement here they were they contacted he tech about buying a new heater there was never any indication they were looking at the tech for a claim even though that's what their internal dialogue actually indicated so you know the fact that the pumps go on mister so you believe a contemplated that they would be filing some kind of product class billeted play but then they intentionally destroy the product or some claim they're related to the fire i don't know if it was a product liability claim in this case they actually did bring a negligent servicing claim but it's clear they were looking at he text to blame for the fire within twenty four hours of the fire and the connection that he would have been  are yes and that based on the bit the case of the individual that were involved there were multiple opportunities for coastal bridge to syria to preserve evidence and each decision point they had they intentionally chose the course of destruction and disposal even after the inspection that was done by he checked before we knew of their actual destruction i mean clearly clearly that in preserving like they should i don't think anyone's really arguing that against that in the cases the fine bad faith are typically shredding documents and actually intentionally destroying e mails i mean here they're trying to keep their place running and  it just doesn't look like bad faith my nd question related to that is even when you have all that bad they typically it means you get a negative and adverse inference in front of the jury you might get attorney's fees for that spoil ation but it's pretty rare to get the case dismissed just for spoil ation especially essentially death penalty sanctions what cases can you point to where spoil ation warranted dismissal of the case with facts you know in the ballpark of this one sure yes judge tossed i think one of the best case to look at would be the the tango case which was cited by the parties that case specifically noted that the  severe sanctions are appropriate when the subject matter of the lawsuit is what disposed of so that distinguishes the case by other lacy emails which may be more tangential this is the this is the object that caught fire incidentally and moving it and not the best manner and things like that as opposed to what we get we better get rid of the bat e mails let's hit the delete button or let's put them in the shredder i mean what intentional acts of not giving you evidence do you see sure i think the couple st of course is the issue of the pumps the pump certainly could have been preserved well the heater was moved there's been no place will provide why the pumps were destroyed and the pumps are critical of course because there's evidence in the record indicating that the only other fire involving a heater like this was a fire that involved negligent made in a pump and of course the u n when they informed that there might be this to this argument that the pumps were not maintained well i think that argument was developed during the course of discovery particularly when our when our employees were deposed of course when we st went to the scene to look at the pumps they were there they were or they were they'd already been lost and destroyed and then explicit inexplicably even after the inspection that he took attended the entire heater all the evidence was thrown away even before the lawsuit was filed all of the case the meter and every other piece of evidence was destroyed related to the heater before we were made aware of the opinions of their experts so we were never afforded the opportunity to look at the physical evidence in light of the specific opinion that their expert had so there another significant source of the loss of evidence that has been detrimental to he taken again they have disposed of the evidence the critical evidence in the case all the physical evidence has been discard isn't the triggering date when you become aware of the claim you just referenced knowledge of the other expert's opinion the date of the filing of the lawsuit isn't the operative day when your client becomes aware that claim this is going to be assert against your client with a client would have to do some due diligence by way of investigation yes i think it was we were notified of the of the fire we were given that we were asked if we wanted to participate in the investigation we indicated yes and we did participate in the investigation however once we inspect it here that doesn't allow them to then dispose of all the physical evidence before suits filed the evidence remains relevant and important particularly when we're not provided the opinions of their expert we're sanction aren't the cases where that happens really a system for ard where a party has for arguably iles an action and deprive the opponent of the very information or reactive case out of the west and dished of louisiana specifically know that there is no smoking gun requirement and in fact if your impose such a requirement the only party that are be held accountable would be the annetts politer those that were incapable of disposing of the smoking gun that's why it's an evaluation of the complete facts and circumstances and that is recorded that looked at the back looked at what was disposed of when it was disposed of and the sophistication of the parties involved and found bad faith the the other two areas that this court should also affirm the summary judgment ran on  is action yes when we attended the joint us action the pumps were gone new pumps had already been installed we've never seen the original pumps and we don't even know if those are the pumps he take originally supplied they could've been other pumps  with that thing say we think the pumps are the key that's what caused the other fire a few years back we want to see the old ponds and they said sorry we threw him out is that what happened we not exactly we asked is this all the evidence there where in the record i can find no we did not specifically ask for the pumps we asked is all the evidence there is and that's with it and they said this is it and there were no pumps there so the next issue the issue of breach of course is the negligent servicing simply that mr weldon did not provide adequate instructions over the phone however the evidence in the record indicates that mr weldon performed appropriately based on the information that was provided to him mr weldon was called that day because the heater w operate because there was a specific error code he followed the procedures related that related to that error code to try to resolve it to a t he did exactly what he was supposed to do in fact every employee of coastal bridge who was to testify in this case did not blame mr weldon for the buyer did not blame the tech for the fire the only individual who blames the tech for the fire was their retained expert but even he could not explain what mr weldon should have done differently and how it would have prevented the fire  the district court also excluded the ability of their expert to testify in this issue so the only individual who actually offered any testimony at all in their favor on the issue of breach had been excluded as a result the district court was well with well within its power to grant a summary judgment on the issue of breach because there just no expert let explanation for what mr walden should have done differently there's nothing for a jury to evaluate as to how he should have handled the call differently when he was when he received the call he was told there'd been a power surge that day but all the power issues to his knowledge had been resolved to fuse had been changed out and there was power to the heater the issue was there wasn't a flow of thermal fluid through the heater and he was attempting to return to restore the flow of the oil through the heating system it was not an electrical issue that was before him and that's in part likely why none of the employees of coastal bridge blamed he checked in fact they were highly complimentary taking their testimony that that would pre dominant or would also be possible particularly when they rely on circumstantial evidence and the case law on this imposes a significant burden on them in order for them to survive summary judgment the meiers vs morrow case  louisiana court of appeal specifically noted that even when you have an impressive amount of circumstantial evidence when there is an equally amount of impressive circumstantial evidence that suggests other causes it's appropriate to dismiss the case and grant summary judgment similarly  consul casualty case that was cited by the district court summary judgment was also granted because the plaintiffs fail to meet that burden in this case there are multiple possible causes of the fire that cannot be excluded their expert cannot explain keep in mind that there was a significant amount of oil that was spilled on top of the heater and around the heater on the morning of the fire their expert cannot exclude the pumps as a possible ignition source for the fire he never examined those pumps he never did any testing on those  nobody has seen those pumps to our knowledge since the since the the few days after the fire they've gone and they've gone missing since that day they also can exclude the possibility of an electrical fire at the electrical panel of the heater keep in mind that there was oil spilled all over the heater when they were trying to put additional oil into the heater that day they also cannot exclude the possibility that the safeties themselves that were on this heater were intentionally bypassed by coastal bridges own employee their own expert said he could not exclude that possibility because the control panel was nothing but ashes by the time he got there to inspect it when you look at those possible scenarios that cannot be excluded in relation to the theory that's been suggested by coastal bridge it's clear that they did not meet their burden they their theory depends on multiple independent facts that are not established in the record for example they contend that the flame inside the burner was on when their own employees say it was off and the equipment as designed would not allow the flame to even exist the error message would have automatically shut off the heater and there's no evidence in the record indicating that those safeties ever fail their expert never did any kind of testing to show that was possible the only testing in the record related to safety as relates to other equipment at an asphalt plant and they're not even safety switch is there pressure transmitter switches which is a completely different piece of equipment there's also no evidence that that they claim the flame escaped through ever moved the evidence and the interviews that were supplied all state and stablished that there is no proof that those that piping ever moved their bolted into place finally their own witnesses can't pinpoint the exact location where the fire started there's two directly two different feyerabend one rd at a valve which was extinguished and then there was the fire that results in this lawsuit nobody knows how that fire actually developed where it started none of their own employees who were there at the scene can establish what how the fire happened why it happened and as a result they don't blame he tech therefore based my record the district court did not abuse discretion in granting spoliation sanction and a perp really found that coastal bridges employees are not experts they were not asked for an investigation into the cause of the fire and yes coast of the four coastal bridge employees all testified and also stated in their oral hand corner that's where d the fire originated according to the poor eyewitness i would also like to add that there was absolutely more communication before between coastal denied access to any part of coastal bridges as far as fault went to performance investigation they had they could not determine the cause of the accident they were prejudiced but yet they talk about passing safety switches as no evidence of any coastal bridge employee bypassing a safety switch is no evidence that the