concurring in part and dissenting in part.
I reluctantly agree with the court's recognition of the fraudulent concealment of evidence tort. Alaska already stands in the very small minority of states recognizing intentional spoliation of evidence as a tort, and the policy justifications for the new tort do not seem to clearly outweigh the policy concerns against it. Nonetheless, I am persuaded that if Alaska is to maintain its recognition of the intentional spoliation tort, it would be inconsistent to deny recognition of the fraudulent concealment tort. But I do not see how the remedies can substantively differ between this new tort and the spoliation tort recognized in Hazen v. Municipality of Anchorage.1
The 1986 Hazen decision included a sua sponte recognition of the "new tort" of "intentional interference with prospective civil action by spo[lilation of evidence.2 Although Hazen involved both first-party and third-party spoliation,3 the decision's primary basis was Smith v. Superior Court, where the California Court of Appeal allowed an accident victim to sue a car dealer who had destroyed or lost important vehicle parts nee-essary for the victim's products liability law-suit4 But the California Supreme Court subsequently refused to recognize the tort for either first-party spoliation cases5 or third-party spoliation cases.6 And in the nearly 25 years after Hazen the "new tort" has gained little traction in other jurisdictions.7
Hazen is hardly a solid foundation for the creation of yet another tort. But Hazen is the law of Alaska, there has been no request to reconsider and overrule it, and there is no persuasive distinction between Hazen's spoliation tort and the fraudulent conduct tort recognized today. I therefore reluctantly *207concur with the court's recognition of this new tort.
Paradoxically, although I only reluctantly agree with the creation of the new fraudulent concealment tort, I strongly disagree with the court's limitation on its remedy through an unpersuasive distinction between the two torts-the tortious conduct is the same, the effect of the tortious conduct is the same, and the remedy for the tortious conduct should be the same.
It has been suggested, but never squarely held, that proof of compensatory damages might not be a necessary element of the spoliation tort and that punitive damages might be awardable even in the absence of compensatory damages.8 For the new tort the court concludes that unlike the complete destruction of evidence and its unavailability for trial, "mere concealment" of evidence beyond the time the victimized party can do anything about it in the underlying litigation does not really create uncertainty whether the absence of the evidence caused the victim any actual harm-the victim simply must go to the expense of a second trial and prove that the first trial would have had a quantifi-ably different conclusion. I disagree.
First, if a victim can prove the five non-damages elements of the new fraudulent concealment tort established by the court,9 the victim already has established both (1) the right to receive the compensatory litigation-costs damages noted in Hazem10 and (2) the obvious basis for "retribution and deterrence" noted in State v. Carpenter.11 The court's narrow focus on whether the victim can prove that the underlying trial would have been quantifiably different ignores the harm unquestionably caused by the fraudulent concealment of evidence-the added expense to the victim and the affront to our system of justice from intentional disruption of the underlying litigation.
Second, the court's assurance that a see-ond trial with the newly found evidence will provide the victim with a "trial on the merits" of the original claim is not adequate. In this case the facts are seductive because of the close proximity in time between the first trial and the discovery of the concealed evidence, making it seem logical that an adequate remedy would be a case-within-a-case trial giving the victim an opportunity to prove the original trial would have been different had the evidence been available. But extend the timeline and that logic loses luster. What if critical concealed evidence is discovered two, five, or ten years later, but by that time previously existing evidence is no longer available to put on the case-within-a-case trial? Witnesses die; memories fade; documents are lost or destroyed; and other physical evidence perishes. The victim might have the critical, but previously concealed, evidence but might no longer have the ability to put on the case-within-a-case trial because other evidence no longer exists.
I find it fundamentally unfair, and inconsistent with the Hazen line of cases, that the court would place such an extraordinary burden of proof and persuasion on the victim in these circumstances. If the court is going to *208create the new tort, it should not create a remedial framework different from Hazen.
For the foregoing reasons, I concur in part and dissent in part.
. 718 P.2d 456 (Alaska 1986).
. Id. at 463 (recognizing "new tort" of intentional interference with prospective civil action by spoliation of evidence although issue was not raised by the parties and "was neither briefed nor discussed at oral argument").
. Hibbits v. Sides, 34 P.3d 327, 329 (Alaska 2001), clarified that Hazen involved both first-party and third-party spoliation claims.
. Hazen, 718 P.2d at 463-64 (discussing Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal. Rptr. 829, 831-32, 836-37 (1984)).
. Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P2d 511, 514-21 (1998). In Cedars-Sinai the court acknowledged the policy concerns arising from the intentional destruction of evidence. Id. at 515. But weighing against recognizing the new tort were (1) "the dangers of creating new torts to remedy litigation-related misconduct"; (2) the extensive and effective nontort remedies available to address spoliation; (3) the elusive certainty of harm in spoliation cases impeding the jury's ability to evaluate the evidence and accurately compensate a parly; and (4) the costs associated with creating a spoliation tort remedy. Id. at 515-21. Expressly "part[ingl company" with Smith v. Superior Court, the court declined to recognize a tort "for the intentional destruction or suppression of evidence by a party to the underlying litigation." Id. at 513, 519 n. 3, 521.
The nontort remedies noted by the California Supreme Court are available in Alaska. See Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 492 (Alaska 1995) (finding on the facts of that case no need to recognize tort of negligent destruction of healthcare records in light of available remedy of burden-shifting); Alaska R. Civ. P. 37 (allowing discovery abuse sanctions); Alaska R. Prof. Conduct 3.4(a)-(b) {establishing disciplinary rule prohibiting unlawful destruction or concealment of evidence); AS 11.56.610 (establishing class "C" felony for "tampering with physical evidence," including destroying, mutilating, altering, concealing, or removing that evidence "in an official proceeding").
. Temple Cmty. Hosp. v. Superior Court, 20 Cal.4th 464, 84 Cal.Rptr.2d 852, 976 P.2d 223, 225 (1999) (expanding Cedars-Sinai to spoliation caused by non-party).
. See Timber Tech Eng'd Bldg. Prods. v. The Home Ins. Co., 118 Nev. 630, 55 P.3d 952, 954 (2002) ("[The vast majority of jurisdictions have never recognized tort remedies for spoliation of evidence.").
. Hazen, 718 P.2d at 464 n. 10 {noting that because Hazen might prove compensatory damages in the form of extra expense in litigating underlying claims without the destroyed evidence on remand, there was no need to address the issue of punitive damages in the absence of compensatory damages); State v. Carpenter, 171 P.3d 41, 66-67 (Alaska 2007) (affirming punitive damages award accompanying compensatory damages award for destroyed evidence (but not for underlying tort claim), and noting Hazen's contemplation that punitive damages might be awardable even in the absence of a compensatory damages award and that "punitive damages may sometimes be the only appropriate damages recoverable for spoliation, especially when the jury finds no liability for the underlying claims" (emphasis in original)).
. The five non-damages elements adopted for the fraudulent concealment of evidence tort are: (1) the defendant concealed evidence material to the plaintiff's cause of action; (2) the plaintiff's underlying cause of action was viable; (3) the evidence could not reasonably have been procured from another source; (4) the evidence was withheld with the intent to disrupt or prevent litigation; and (5) the withheld evidence was discovered at a time when the plaintiff lacked another available remedy.
. 718 P.2d at 464 n. 10.
. 171 P.3d at 67.