A judge has declined to allow an amendment to a complaint in a defective firearm case after finding the plaintiffs’ chances of surviving a motion to dismiss the new charge were low.

Northern District Judge David Hurd (See Profile) ruled on the plaintiffs’ request to substitute a claim for fraudulent concealment for one of spoliation of evidence.

The plaintiffs, Creigh Landis and her husband Brent Landis, allege that key evidence in their action, Landis v. Remington Arms, 8:11-cv-1377, is missing. The couple is suing Remington Arms Company, Sporting Goods Properties and other defendants on the contention that they made and sold a defective Remington M700 .308-caliber rifle that discharged a round into Creigh’s stomach without her touching the trigger.

The Landises moved to amend the complaint, which also charges defective design and manufacture of the weapon, after conceding that they could not seek damages for spoilation of evidence because New York state recognizes no such tort.

But Hurd said their proposed substitution of fraudulent concealment was unlikely to withstand a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6).

For the purposes of the Landises’ cases, the crucial part of the four-pronged test for stating a fraudulent concealment claim is to show that the concealment or destruction of evidence will cause the plaintiffs’ case to fail on the merits, Hurd wrote.

“In other words, plaintiffs must assert that the absence of these documents and other evidence —being so essential to the underlying case—will result in a failure to prevail on one or more of the other four counts alleged,” Hurd wrote. “This is the only way that damages will stem from the alleged fraudulent concealment.”

But Hurd said the Landises did not argue that their case is necessarily doomed without the evidence they contend has been withheld or destroyed.

“Plaintiffs still have the opportunity to present evidence in favor of their case without these supporting documents,” Hurd noted.

He concluded that, “Because proposed amended Count V would not survive a motion to dismiss pursuant to Rule 12(b)(6), plaintiffs’ motion to amend will be denied as futile.”

Hurd wrote that the state Court of Appeals had analyzed spoilation statutes in Ortega v. City of New York , 9 NY3d 69 (2007), and discussed why the state had declined to recognize a cause of action for the intentional spoilation of evidence.

First, the Court of Appeals said in Ortega , that corrective measures are already available for the negligent spoilation of evidence under state Civil Practice Law and Rules 3126, which authorizes sanctions as warranted to those responsible for destroying or withholding evidence, or ignoring valid requests for information.

As Hurd noted, the Court of Appeals was also worried about opening the “floodgates” to litigation if it recognized a tort for evidence spoilation and of the consequences of the enhanced speculation to resolving litigation where spoilation was raised as a concern by one party or the other.

“There would be questions as to whether destroyed or lost evidence existed in the first place; whether the supposedly destroyed information would have included any relevant information; concerns about the actual degree or harm that the moving party suffered; and questions about the validity, accuracy, and details of the purported evidence,” Hurd said.

Thus, the Court of Appeals declined to create a tort for spoilation, the judge said.

Hurd noted that he also has access to “adequate” remedies under Rule 37 of the Federal Rules of Civil Procedure. Those sanctions include prohibiting the offending party from supporting or opposing certain claims of defense, striking pleadings, dismissing actions or rendering a default judgment against the offending party.

The other four counts of the Landis’ complaint allege strict liability, strict liability failure to warn, negligent design and manufacture and negligent failure to warn.

They allege that Creigh Landis was walking in the woods behind her home in Brushton, Franklin County, in November 2008 when she put the rifle on its barrel end to climb over a tree that had fallen in a path. When she reached back to pick up the gun, she alleges that it discharged a round into her stomach without her having touched the trigger.

Her complaint seeks damages for medical expenses, physical pain and suffering, permanent disability, disfigurement and loss of consortium and companionship.

The complaint charges that “design, manufacture, sale and distribution of the Remington Model 700 bolt action rifle demonstrated a high degree of moral turpitude, wanton dishonestly and is indicative of criminal indifference” on the part of the manufacturer.

The complaint also alleges that Remington and its corporate entities destroyed evidence that it contends would reveal known flaws in the Remington 700, including internal memos, testing results, tested rifles, returned rifles and customer complaints.

The Northern District suit claims that the reports, records and other materials were destroyed after the company encountered litigation over the weapon or could have reasonably suspected that the information could be used in plaintiffs’ favor in litigation involving the rifle.

In an answer to the complaint, the gun manufacturer denied that the gun discharged a round without the trigger being touched and opposed the plaintiffs’ damages claim for spoilation, saying the tort does not exist in New York.

Stephen Vanier of Poissant, Nichols, Grue & Vanier in Malone and Timothy Monsees of Monsees, Miller, Mayer, Presley & Amick in Kansas City, Mo., are representing the Landises.

Paul Jureller of Thorn Gershon Tymann and Bonanni of Albany is defending Remington, as is Dale Wills and Andrew Lothson of Swanson, Martin & Bell of Chicago.

@|Joel Stashenko can be reached at jstashenko@alm.com.