Judge David Hurd
Landis was hurt when her Remington rifle discharged unexpectedly without its trigger’s manipulation. Her five-count product liability action—asserting causes of action for strict liability, strict liability failure to warn, negligent design and manufacture, negligent failure to warn and spoliation of evidence—alleged the rifle’s discharge was due to defective design and manufacture. District court granted Remington dismissal of Landis’ spoliation of evidence claim—alleging destruction of documents and physical evidence related to the subject rifle to avoid liability—noting that although diversity jurisdiction under 28 USC §1332 existed, under Ortega v. City of New York, New York does not recognize spoliation of evidence, whether first party or third party, and whether intentional or negligent, as an independent, actionable tort. Distinguishing IDT Corp. v. Morgan Stanley Dean Witter, the court, focusing on damages, the fourth element articulated by TVT Records v. Island Def Jam Music Group, denied Landis leave to amend Count V of her complaint to allege fraudulent concealment instead of spoliation. Landis asserted neither damages resulting from concealment nor that her other claims would fail absent the allegedly destroyed evidence.