1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30659

JOSEPH CAPAROTTA, JR.,

Plaintiff-Appellee - Cross-Appellant,

VERSUS

ENTERGY CORPORATION, ENTERGY SERVICES, INC., LOUISIANA POWER &

LIGHT COMPANY, and NEW ORLEANS PUBLIC SERVICE, INC.,

Defendants-Appellants - Cross-Appellees.

Appeals from the United States District Court

for the Eastern District of Louisiana

February 25, 1999

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Entergy Corporation, et al. (hereinafter “Entergy”) appeals

from a jury verdict for the plaintiff in this age discrimination

case. Joseph Caparotta, Jr., cross-appeals, complaining that he

was not awarded enough in back pay damages and challenging the

jury’s finding that Entergy’s discrimination was not willful. We

vacate and remand for a new trial.

BACKGROUND

Joseph Caparotta, Jr. w as an employee of Entergy Services,2

Inc. and various other Entergy predecessors from 1968 to 1993.

While at Entergy, Caparotta worked in several accountant positions

until he eventually became a Senior Lead Accountant. It was while

in this position in July 1993 that he was terminated as the result

of a work force reduction at the age of forty-nine.

At the time of his discharge, Entergy took the position that

Caparotta was laid off because he was the lowest rated employee in

his group. Caparotta maintained that his age was the real reason

for his termination and filed an age discrimination claim under the

Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq.

(ADEA).

During discovery, in-house counsel gathered documen ts in a

sto rage box to review with outside counsel retained to defend

Entergy in two cases, one of which involved Caparotta. In addition

to the pleadings and correspondence for both cases, the storage box

contained: (1) files received from the EEOC in connection with two

separate FOIA requests; (2) a copy of a portion of Caparotta’s

official personnel file; (3) a copy of the personnel file for the

plaintiff in the other case; (4) documents produced by Caparotta;

and (5) the original Supervisor’s File on Caparotta.

O utside counsel sent the box back to in-house counsel by

courier. The box arrived around 4:30 p.m. and in-house counsel

placed the box under a ledge at her secretary’s station because she

was going to have the documents copied for outside co unsel. The

next day, in-house counsel discovered the bo x was missing and

ultimately determined that the contents of the box had been3

accidentally incinerated that morning. The original Supervisor’s

File on Caparotta was the one item which could not be replaced by

Entergy.

The d istrict court held a hearing to determine whether the

fact of the inadvertent destruction of documents in the possession

of counsel for Entergy would be admitted in evidence and whether

Caparotta would be entitled to an adverse inference as a result of

the destru ction of the documents. The district court concluded

that it would not give the jury an adverse inference instruction

because Entergy had not acted in bad faith, but that it would allow

the fact of the inadvertent destruction of documents to be

presented to the jury.

The action was tried before a jury which returned a verdict in

favor of Caparotta and awarded him $20,500 in back pay. However,

the jury found that Entergy did not willfully violate the ADEA.

The district court held an evidentiary hearing on the issues of

attorney’s fees and front pay. Ultimately, the district court

awarded Caparotta (a) $20,500 in back pay; (b) $103,003 in front

pay; (c) $52,162 in attorney’s fees; and (d) $3,270.13 in costs.

The district court denied Entergy’s motion for judgment as a matter

of law. Entergy timely appeals. Caparotta cross-appeals.

ANALYSIS

Entergy appeals from the district court’s decision to admit

evidence of the inadvertent destruction of documents arguing that

such evidence was not relevant under Federal Rule of Evidence 4014

and was highly prejudicial under Federal Rule of Evidence 403.

This court reviews evidentiary rulings for abuse of discretion and

will reverse a district court’s ruling only if it affects a

substantial right of a party. F irst Nat’l Bank of Louisville v.

Lustig , 96 F.3d 1554, 1574 (5th Cir. 1996).

Prior to tri al, the district court conducted an evidentiary

hearing regarding the destruction of documents. The district court

concluded that Entergy did not act in bad faith and that Caparotta

was not entitled to an adverse inference instruction. However, the

district court found that the evidence was relevant because “it

bears to some extent on credibility and reliability.” R. Vol.

9:46. Although considering the Rule 403 question a closer call,

the district court concluded that Rule 403 did not preclude

admission of some evidence of the destruction of documents. Id

.

Entergy correctly points out that under this court’s holding

in Vick v. Texas Employment Commission

, 514 F.2d 734, 737 (5th Cir.

1975), an adverse inference drawn from the destruction of records

is predicated on bad conduct by the defendant. Because the

district court found no bad faith, Entergy argues that evidence of

the inadvertent destruction of documents should not have been

presented to the jury.

Entergy is correct to the extent that it argues the spoilation

doctrine did not apply and that the jury could not be instructed

that the destroyed evidence was unfavorable to Entergy. However,

Vick does not apply to the issue of whether the district court

c ould nonetheless admit the fact of the destruction of docume nts5

for the jury to weigh with the other evidence in the case because

such evidence was relevant.

To evaluate whether a n abuse of discretion occurred, it is

helpful to explicate how the evidence of the inadvertent

destruction of documents was presented to the jury. First, over

the objection by Entergy, Caparotta’s counsel was all owed to

discuss the destruction of documents during his opening statement:

And at this point I have to tell you all about some other

evidence that you will hear that bears directly upon Ms.

Battiste. That is this. Ms. Masinter had some

supervisor’s files in which we don’t know w hat was in

them. But we believe and common sense dictates they had

a great deal of information in them a bout this entire

evaluation process going on from 1991 with Mr. Caparotta.

And then in the normal course of discovery, they were to

have produced these files by Entergy. But we are not

going to be able to show you those files today. We will

never be able to show them to you, you will never be able

to consider them. The night before we were supposed to

get those files, they disappeared. And apparently they

no longer exist. Nobody really knows what happened to

those files. You’ll hear from Entergy’s lawyer, in house

lawyer, an employee of Ms. Masinter, she was the last

person in charge of them, they disappeared from her

custody and control out of her office. She doesn’t know,

she can’t say exactly what happened to those files. If

she has some ideas, perhaps she d oesn’t know. She

believes they were incinerated at 5:00 o’cloc k in the

morning on the day we were to have gotten them. There

was a whole box of documents we were supposed to have

produced to us, that documents, b oxes of documents

contained all sorts of things, his pe rsonnel file, his

various records from the company and so forth and all of

those other records had alrea dy been copied, they were

copied, somewhere at Entergy, the only missing file, not

a copy of in the Human Resource Department at resources,

not a copy at the legal office, the files had just gone.

Nobody made a copy of those originals, they are gone and

gone forever.

R.Vol.10:82-83. At that point, the district court instructed

counsel to get on with the facts of the case. R. Vol. 10:83.

C ounsel for Entergy then addressed the issue in its open ing6

statement before the jury:

A couple of quick things I’ll tell you. The records that

are missing, it’s a smoke screen. Some records were

inadvertently lost. It appears the cleaning people threw

them out. And Mrs. Masinter will have to testify and

tell you all about it. She will testify, one of the

lawyers representing us in this case. Tell you there was

nothing even relevant in the documents, we are ab le to

reproduc e most of the documents except a very few

irrelevant documents.

R. Vol. 10:98.

During the plaintiff’s case-in-chief, Ms. Masinter, one of

Entergy’s attorneys prese nt at counsel’s table was called to the

stand to testify. During a bench conference immediately prior to

her testimony, Entergy objected to Ms. Masinter being called as a

witness and asked for a cautionary instruction that the jury should

not infer anything for or against either party in the case as a

result of her testimony. The district court concluded it would

hear the testimon y and then decide the appropriate instruction.

Ms. Masinter relayed the circumstances surrounding the inadvertent

destruction of documents, and her testimony comprised approximately

eight (8) pages of the record. R. Vol. 11:316-324.

At the conclus ion of Ms. Masinter’s testimony, the district

court gave the following instruction to the jury:

Members of the jury, I have heard this evidence before.

I have concluded as a matter of law there was no intended

willfulness to destroy the information. I simply

recognize that th is is a document intensive case. The

document was referred to and I felt it was relevant at

least for you to know this situation. Don’t assume that

by my allowing this testimony in that I do or do not

p lace any weight on this information. I simply wanted

you to be exposed to the evidence because I think it was

relevant.

R.Vol. 11:325.7

Finall y, during closing arguments, counsel for both sides

referred to the missing documents. During Caparotta’s closing,

counsel stated:

We said we would show you that there was an important

collection of eviden ce that had disappeared and we no

longer had it available to us. Mrs. Battiste supervisor

file. (sic) And I believe you heard Mrs. Massinter (sic)

testify tha t that disappeared the morning before, the

night before she was trying to produc e it to us. They

never have been able to reproduce it or find it. They

don’t know what happened to it. We don’t have that

evidence here before us. We can’t argue that evidence to

you. And I don’t know what was in that file. I wish I

did. But the suggestion is that it contained some

handwritten notes of Mrs. Battist e. You heard how

important a figure she was in this case.

R.Vol. 12:418.

During Entergy’s closing argument, counsel remarked:

The missing documents. I mean, we would love to have

those documents. No evidence it was intentional. The

court told you that. The real point is the supervisor

file was available when the decision was made in 1993.

Mr. King and Mr. Bunting both testified they didn’t even

see it. The managers making these decisions didn’t even

see it. That is the supervisor’s file. It’s not

relevant. T he fact it’s not relevant, they didn’t even

look at it. (sic) You have everything that the decisionmakers used to make their decision.

R.Vol. 12:441.

Caparotta’s counsel then added during closing argument:

Nancy Cassagne and Benita Battiste, tha t is where the

real knowledge of what the dirty work that went on

happened, how it happene d and where are these people?

Where are the witnesses, where are the documents?

R.Vol. 12:445.

We are sympathetic to the dilemma faced by the district court

of what to do when evidence is inadvertently destroyed. Because

Caparotta had the burden of proof in this case, the absence of8

evi dence could have unfairly harmed him. We cannot say that it

would have been an abuse of d iscretion for the district court to

let the jury know of the fact that certain documents were missing.

But in this case, the fact that documents were missing was revealed

to the jury through the testimony of one of Entergy’s counsel

seated at the defendants’ table. Certainly, the prejudicial impact

of such testimony from Entergy’s cou nsel was substantial.

Additionally, it was confusing to the jury because it was unclear

as to which issue the evidence was relevant. At points throughout

the tria l, it appeared that the parties were relitigating the

spoilation issue which had been resolved by the district court at

an earlier evidentiary he aring. To say the least, this was a

highly extraordinary method of informing the jury that documents

were inadvertently destroyed. It would have been more appropriate

for the district court to have informed the jury that the documents

had been inadvertently destroyed and that the district court found

no bad faith on the part of Entergy.

Federal Rule of Evidence 403 provides that although relevant,

e vidence may be excluded if its probative value is substantially

outweighed by the danger of, inter alia

, “unfair prejudice” or

“confusion of the issues”. Caparotta argues that the evidence was

relevant because the jur y might wonder why certain evidence was

never introduced and also to show that Entergy had poor adherence

to its own document retention policies. The district court found

the evidence relevant with respect to the credibility and

reliability of Entergy. Assuming that some probative value did1 Entergy also challenged on appeal whether the evidence was

otherwise sufficient to sustain the jury’s verdict. Because we

find that the evidence was otherwise sufficient to support the

jury’s verdict, we do not reverse and render, but instead vacate

and remand for new trial.

9 exist as to t he issues in this case, such value was minuscule.

Contrastingly, the danger of unfair prejudice and confusion of the

issues was substantial.

Although exclusion of relevant evidence pursuant to Rule 403

“is an ex traordinary measure that should be used sparingly,” s ee

Campbell v. Keystone Aerial Surveys, Inc.

, 138 F.3d 996, 1004 (5th

Cir. 1998), we find that in this case it was an abuse of discretion

to allow the evidence of destruction of documents to be admitted

through the testimony of defense counsel. We further conclude that

the substantial rights of Entergy were affected by the admission of

the evidence in the aforementioned manner and tainted the judgment

of the jury. Accordingly, we vacate the judgment and remand for a

new trial. 1

VACATED and REMANDED.

DENNIS, Circuit Judge, dissenting.

I respectfully dissent from the majority opinion’s conclusion

that the district court abused its discretion in (1) finding that

the probative value of the relevant evidence of Entergy’s

destruction or nonproduction of its original supervisor’s file on

Caparotta was not substantially outweighed by the danger of unfair

prejudice and (2) determining that the evidence therefore should

not be excluded under Federal Rule of Evidence 403.

This court has held that Fed.R .Evid. 403 favors the

admissibility of relevant evidence, and that relevant evidence may10

be excluded because of its detrimental persuasive effect on an

adverse party’s case only if its probative value is substantially

outweighed by the danger of unfair prejudice. U nited States v.

Davis

, 639 F.2d 239, 244 ( 5 th Cir. 1981). “Relevant evidence is

inherently prejudicial; but it is onl y unfair prejudice,

substantially outweighing probative values, which permits exclusion

of relevant matter under Rule 403.” U nited States v. McRae , 593

F.2d 700, 707 (5 th Cir.), cert. denied

, 444 U.S. 862, 100 S.Ct. 128,

62 L.Ed.2d 83 (1979). "Virtually all evidence is prejudicial or it

isn't material. The prejudice must be 'unfair.'" Dollar v. Long

Mfg. N.C., Inc.

, 5 61 F.2d 613, 618 (5 t h Cir. 1977), cert. denied

,

435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). See also , 22

Charles Alan Wright & Kenneth A. Graham, Jr., Federal Practice and

Procedure § 5221 (1978 ). Consequently, Fed.R.Evid. 403 is an

extraordinary remedy to be used sparingly. E .g.

, United States v.

Thevis

, 665 F.2d 616, 633 (5 th Cir. Unit B), cert. denied

, 456 U.S.

1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982).

The destruction or nonproduction of Entergy’s original

supervisor’s file on Caparotta was relevant and of probative value

to the ultimate issue in this case, viz. whether Entergy laid

Caparotta off unlawfully because of his age or lawfully because of

a reduction in force and his performance ratings. Evidence of the

subjective stat e of mind of Entergy’s supervisory personnel who

rated Caparotta’s performance and decided to lay him off was

relevant and would have had great probative value on the issue of

whether his termination was based on unlawful age discrimination.

It is highly probable that the original supervisor’s file on

Caparotta contained relevant and competent documentary evidence on

this issue. Thus, the circumstantial evidence tending to show that

Entergy, which had notice that the file was relevant to the

ultimate issue in the pending litigation, proceeded to prevent its

production, wa s admissible and probative of facts permitting the

jury to infer that Entergy did so out of the well-founded fear that

the contents would ha rm its case. In other words, the evidence

that Entergy was responsible for the destruction or nonproduction2 I do not question the credibility or integrity of Entergy’s

in-house counsel who testified that the file was removed from her

office without her knowledge or permission. However, the evidence

tends to show that the persons who removed and perhaps destroyed

the file were either agents of Entergy or persons authorized to

have access to and custody of things in Entergy’s offices. The

evidence does not suggest removal or destruction by an act of God

or the intervention of a stranger, such as a burglar or vandal.

11 of the file had a tendency to make the ultimate fact that was of

consequence to the action, i.e., unlawful age discrimination, more

pro bable than it would be without the evidence. 2 S ee Fed.R.Evid.

401.

I respectfully disagree with the majority’s characterization

of the probative value of Entergy’s destruction or nonproduction of

the file as “minuscule.” maj.op.9. As the majority opinion

indica tes, there was substantial evidence on both sides, and the

case was properly submitted to th e jury on whether Entergy’s

alleged reduction in force layoff of Caparotta was a pretext for

discrimination against him on the basis of his age. Entergy

superviso rs testified that Caparotta was selected for layoff in

connection with a reduction in force because of his relative poor

performance rating and not because of his age. However, Entergy

documents used in the evaluatio n of Caparotta’s performance

included his age and birthdate, without explanation as to how that

information was relevant. The former head of Entergy’s accounting

department in which Caparotta worked as an accountant testified in

his deposition that the ages of the employees laid off were

discussed. Caparotta received a performance evaluation of 4.58 on

a scale of 1 to 5 before he was d emoted and transferred to a

different supervisor, who gave him a rating of 2.74 for the

remaining four months in the year. When Caparotta was evaluated

for purposes of the reduction in force the 2.74 rating for the four

month period was used. Caparotta contends that his rating of 4.58

was higher than that of any of his fellow employees during 1991 and

1992. Entergy considered the 1991 and 1992 ratings of at least one

younger employee in evaluating her for purposes of the reduction12

in force. In the same reduction in force evaluation, one of

Caparotta’s sup ervisors advised him to lower the evaluations of

several employees Caparotta supervised so that it would be easier

to justify later discharges. As this court concluded in B roomfield

v. Texas General Indemnity Co.

, 201 F.2d 746,748-49 (5 th Cir. 1953),

“[i]n a case of circumstantial e vidence, trifles may be given

weight in connection with the other facts in evidence, and if we

indulge every presumption against the spoliator,” it could be

inferred from the fact that an adjuster “deemed it necessary to

change or suppress the [company] doctor’s opinion as to the cause

of this man’s death, [that] the man was injured in the course of

his employment.” Similarly, in the present case, the unfavorable

inference that the jury may have drawn from Entergy’s nonproduction

of the original supervisor’s file on Caparotta, could have been

given weight in connection with the other evidence to tip the

jury’s scales in favor of finding that Caparotta had been

terminated because of his age and not because of his comparatively

low rating in a si ngle four month period out of his 25 years of

employment.

T he evidence that Entergy was responsible for the

nonproduction of the original supervisor’s file did no t present

“danger of unfair prejudice” to Entergy’s case. As the court

observed in a leading case on the prejudicial effect of spoilation

evidence, “[t]o be sure, the evidence was damaging [to the

defendant], but ‘prejudice and detriment are not synonymous.’”

Thor v. Boska

, 113 Cal. Rptr. 296, 302 (1974) (hold ing that the

probative value of a medical malpractice defendant’s destruction of

the clinical record on a patient in whom he failed to diagnose

breast cancer outweighed any prejudicial effect), noted in Jamie S.

Gorelick et al., Destruction of Evidence § 2.4 (1989), § 2.4B (1997

Cum. Supp.) (“Spoliation evidence may be very damaging, but that is

because it should be, not because it is prejudicial.” Gorelick,

supra , § 2.4 (1989)).

I agree with the majority that, “[b]ecause Caparotta had the

burden of proof in this case, the absence of ev idence could have13

unfairly harm ed him. We cannot say that it would have been an

abuse of discretion for the district court to let the jury know of

the fact that certain documents were missing.” maj.op.at 8. But

I disagree that Entergy’s case was “unfairly prejudiced” because

this fact was revealed to the jury through the testimony of

Entergy’s counsel. Under the circumstances, Entergy had both a

right and an obligation to explain to the jury why it had not

produced its original su pervisor’s file on Caparotta containing

relevent evidence on the ultimate issue in the case. In the

absence of a witness who saw or participated in the actual taking

or destruction of the file, the testimony of the in-house counsel

that the file had been removed from her office by someone without

her knowledge or permission was Entergy’s bes t evidence toward

explaining its failure to produce the file. The fact that Entergy

could not completely relieve itself of responsibility by presenting

competent evidence that the file had been taken or destroyed by a

stranger to its organization through theft, burglary or vandalism

was detrimental but not unfairly prejudicial to its case.

Furthermore, although I think the trial judge should not have told

the jury that he had “concluded as a matte r of law there was no

intended willfulness to destroy the information,” he erred in favor

of Entergy, not Caparotta, becau se his remarks could have caused

the jury to not draw or give little or no weight to a permissible

unfavorable inference from Entergy’s nonproduction of the file.

Contrary to the majority opinion, I do not think that “[i]t

would have been more appropriate for the district court to have

informed the jury that the documents had been inadvertently

destroyed an d that the district court found no bad faith on the

part of Entergy.” The questions of whether Entergy intentionally

cau sed the nonproduction or destruction of the original

supervisor’s file, whether a permissible inference should be drawn

that the evidence in the file would have been unfavorable to

Entergy’s case, and, if so, the effect or weight of that inference

were all questions of facts to be decided by the jury, the trier of

the facts in this case.14

The general principles governing the admissibility of evidence

of the destruction or nonproduction of documents and the

permissible inference that ma y be drawn therefrom are well

established. S ee Nation-Wide Check Cor p., Inc. V. Forest Hills

Distributors, Inc.

, 692 F.2d 214 (1 st Cir. 1982); Gorelick, supra

,

§ 2.4A (1997 Cum. Supp.). A party’s intentional nonproduction or

destruction of a relevant document is evidence from which the jury

may infer that its contents would have been unfavorable to that

party, provided that the party had notice that the document was

relevant to pending or foreseeable litigation at the time he

destroyed or failed to produce them. N ation-Wide Check Corp.

, 692

F.2d at 217-18 (citing 2 Wigmore on Evidence § 291 (Chadbourn rev.

1979)); see Welsh v. United States

, 84 4 F.2d 1239, 1246 (6 t h Cir.

1988); Vick v. Texas Employment Comm’n

, 514 F.2d 734, 737 (5 th Cir.

1975); Broomfield v. Texas General Indemnity Co.

, 201 F.2d 746, 749

(5 th Cir. 1953); Warner Barnes & Co. V. Kokosai Kisen Kab ushiti

Kaisha , 102 F.2d 450, 453 (2d Cir.), m odified

, 103 F.2d 430 (2d

Cir. 1939).

Applying these princip les, it is clear that there was

sufficient evidence from which the jury reasonably could have found

that Entergy’s original supervisor’s file on Caparotta was relevant

documentary evidence, that Entergy had notice that the evidence was

relevant to an important issue in this case, and that Entergy

intentionally caused the destruction or nonproduction of that

relevant evidence. Accordingly, the evidence was admissible, and

the jury should have been instructed that, if it found that (1) the

original supervisor’s file contained documentary evidence relevant

to the existence of any fact that is of conseque n ce to the

determination of the action; (2) Entergy intentionally caused the

destruction or the nonproduction of that evidence; and (3) Entergy

had notice that the documentary evidence was relevant to a

foreseeable legal proceeding at the time it destroyed or failed to

produce the documents, the jury could but was not required to infer

from the evidence tha t the documentary evidence would have been

unfavorable to Entergy.15

I do not agree wi th Entergy’s argument that, because the

district court told the jury he had “concluded as a matter of law

there was no intended willfulness to de stroy the information,”

under this court’s decision in Vick

, the evidence of Entergy’s

des truction or nonproduction of the original supervisor’s file

should not have been presented to the jury. There are several

reasons that the argument is without merit: (1) In a jury trial

involving the issue of w hether an inference may be drawn by the

jury from the loss or destruction of documents, the judge’s

function is limited initially to a preliminary d etermination of

whether the evidence is such that reasonable minds may differ on

the factual questions involved. Whether the facts required to

justify an inference exist and, if so, whether an inference should

be drawn from them in a particular case, constitute questions of

fact. S ee Barker v. Bledsoe

, 85 F.R.D. 545, 547 (W.D. Okla. 1979);

Gorelick, supra

, § 2.22 (1989), § 2.22A (1997 Cum. Supp.).

Therefore, if the factual issues are reas onably debatable, as in

the present case, it is not the function of the judge to decide

them; they must be presented to the jury. S ee American Casualt y

Co. v. Schaffer

, 420 S.E.2d 820, 822 (Ga. 1992); Rodriguez v. Webb

,

680 A.2d 604, 607 (N. H. 1996); T rupiano v. Cully

, 84 N.W.2d 747,

748 (Mich. 1957); Goerlick, supra

, § 2.22A (1997 Cum. Supp.). (2)

As Justice, the n Judge, Breyer pointed out in N ation-Wide Check

Corp.

, 692 F.2d at 219, “the ‘bad faith’ label is more useful to

summarize the conclusion that an adverse inference is permissible

than it is actually to reach the conclusion.” In the destruction

or nonproduction of evidence context, the term sums up the required

findings that (i) the evidence in question was relevant to an

important issue in the case; (ii) a party intentionally destroyed

or failed to produce the evidence; (iii) and the party knew or had

notice that the evidence would be relevant to pending or

foreseeable legal proceedings. Thus, the term “bad faith” in this

context does not signify the existence of a fact or state of mind

in addition to or independent of the basic elements required for

the introduction of evidence of the loss or destruc tion of16

documents. Analagously, this Court in Vick used the reverse term

“without bad faith” to label or summarize its conclusion that the

spoilation inference did not apply because the Commission had

destroyed its reco rds routinely pursuant to its pre-existing

regulations governing the disposal of inactive records well prior

to the time that the Commission had notice that the records might

be relevant to a future legal proceeding. (3) Moreover, any

different reading of Vick would require that it be interpreted as

conflicting with or overruling the prior precedent of this court

in Broomfield v. Texas Gener al Indemnity , 201 F.2d 746 (5 t h Cir.

1953). In B roomfie ld we held that the action of the defendant

worker’s compensation insurer’s adjuster in procuring alteration by

the company doctor of an accident report by superimposition of a

“no” answer over the original “yes” answer to the question, whether

an employee’s on-the-job heart strain was the sole cause of his

death, amounted to a spoliation of evidence permitting an inference

unfavorable to the insurer to be given weight in connection with

other facts in evidence. The B roomfield court did n ot require a

finding or conclusion of “bad faith” before permitting an inference

to be drawn from the intentional alteration o r suppression of

evidence. To read V ick as adding anything other than a summarizing

conclusory label to the requisites for the introduction of evidence

loss or destruction of documents and for the drawing of an

inference therefrom would t ake the many times forbidden step of

allowing one panel of this court to overrule a previous panel’s

decision.

Accordingly, I believe that the trial court did not err in

allowing the introduction of the evidence of Entergy’s destruction

or nonproduction of the original supervisor’s file because the jury

reasonably could have found that the defendant was responsible for

an intentional suppression of the file, that the file constituted

relevant evidence, and that the defendant knew or had notice that

the file was rele vant evidence prior to its destruction or

nonproduction. In my opinion, the trial court erred in telling the

jury that he had “concluded as a matter of law there was no17

intended willfulness to destroy the information.” However, this

error is not ground for vacating the verdict or the judgment

because refusal to take such action does not appear to be

inconsistent with substantial justice. Fed.R.Civ.P. 61. The error

was potentially harmful to the plaintiff-appellee’s case, not that

of the defendant-appellant; therefore, it must b e disregarded as

not affecting the substantial rights of the parties. Id.