Toxic Tort Litigation Blog : Toxic Tort Lawyer & Attorney : Epstein Becker Green Law Firm : Product Liability, Contamination, Pollution

On August 7, 2012, the New York Law Journal reported that the lawsuit of a woman, who disobeyed three court orders directing her to undergo a physical examination by a defense medical expert in a personal injury lawsuit before she underwent spinal surgery, was dismissed due to spoliation of evidence.  The evidence that was spoliated was plaintiff's pre-surgery physical condition!  The decision in Mangione v. Jacobs (2012 NY Slip Op 22211) is attached.

In a case of first impression in New York, the Hon. Charles Markey, Queens Supreme Court, held that the plaintiff’s failure to submit to a medical exam by her adversary’s examining physician could be found to be spoliation of evidence because the alleged damage resulting from her automobile accident was surgically corrected before the defendants' examining physician could see her. 
The court distinguished the case at bar from a situation where a plaintiff needs to have life-saving surgery or any operation that would cure intense pain and alleviate injury. Under those circumstances, no spoliation would attach. That was hardly the case here, the court  ruled, where there was no medical reason why plaintiff could not have waited one more  week before having surgery to comply with the most recent of several court orders to submit to a physical examination. 

Although there were no New York cases directly on point, Judge Markey referenced a 2001 ruling in the Superior Court in Delaware in Clark v. E.I. DuPont de Nemours, WL 1482831, in which the court dismissed a suit brought by a plaintiff who underwent hip replacement surgery before defendants were allowed to conduct an independent medical examination. The Delaware Supreme Court affirmed the ruling in Clark and the U.S. Supreme Court denied a writ of certiorari in 2002 (537 U.S. 941). 

The court found that a jury instruction would not be sufficient to remedy what Judge Markey described as the “irreparable prejudice to defendants of the spoliation, where Mangione’s surgery has eviscerated the means of defense doctors and lawyers of tracing the causal connection of Mangione’s ailments to the most recent accident….” Contributing to the adverse outcome for the plaintiff was the court’s determination that plaintiff had intentionally thwarted three prior court orders. Plaintiff advised the New York Law Journal that they intend to appeal.  We do not predict success for plaintiffs in the Second Department on appeal.

Litigation Tip: In personal injury actions where it is likely that the claimant will undergo surgery to correct the condition alleged in the complaint, it is good practice to place plaintiff on notice as soon as possible of defendants'  intention to perform a physical examination of the plaintiff. However, in Mangione, it is likely that the defendants would not have obtained so successful an outcome if plaintiffs had not flouted three court orders. In the absence of a violation of a court order, it is likely that the most relief the aggrieved defendant can obtain is an adverse inference. How effective would an adverse inference be, however, when plaintiff’s treating physician is still permitted to testify at trial concerning the plaintiff’s grievous physical condition prior to surgery?  Better to get a court order and hope the plaintiff ignores it and undergoes surgery instead.

This is not really a spoliation of evidence case in the traditional sense. Rather, it is a plaintiff's effort to play fast and loose with her personal injury claims without providing the defendant a fair chance to independently evaluate those claims by a doctor of their choice. 
 

New York state courts are increasingly turning to federal Zubulake standards when confronted with spoliation of electronic evidence issues. However, in dealing with garden variety spoliation of evidence scenarios, not involving ESI, New York courts have generally engineered their own solutions without turning to federal common law for guidance. We previously addressed how New York courts address ESI spoliation.

Pursuant to the common law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned. There may be circumstances where the destruction is so egregious that the offending party’s pleading may be stricken where no other remedy will achieve a fundamentally fair outcome.

In their article, “Remedies for Spoliation of Evidence,” published in the New York Law Journal on March 27, 2012, Plaintiff lawyers Robert S. Kelner and Gail S. Kelner provide a good overview of how state courts address spoliation of evidence and the circumstances under which a court will impose the “ultimate sanction.”

Unlike some states, New York does not recognize an independent tort claim for third-party negligent spoliation of evidence. In a 2007 Court of Appeals case, Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773 (2007), the City of New York was under a court order to preserve an impounded vehicle so that the cause of a vehicular fire could be determined by forensic analysis. Due to negligence, the City of New York failed to preserve the vehicle. Despite this negligent destruction, the court declined to establish an independent tort of spoliation of evidence, pursuant to which a tort action against the City of New York might have been pursued. In declining to establish a spoliation tort, the court explained that there was “no way of ascertaining to what extent the proof would have benefited either the plaintiff or defendant in the underlying lawsuit and it is therefore impossible to identify which party, if any, was actually harmed.” Applying this logic, the Ortega court stated that an independent cause of action was not viable because it would recognize a claim that, by definition, could not be proved without resort to speculation. However, speculative the damages that might have resulted from spoliation in Ortega,  New York courts have not hesitated to levy sanctions when a party has destroyed evidence.

New York courts have been willing to strike an offending party’s pleading when it can be shown that a party destroyed key evidence which deprived the adversary of its ability to prove its claim or defense. The court may also, in its discretion, apply any number of remedies short of striking the pleading. These remedies include an “adverse inference” (where the jury is instructed that it may infer that the missing evidence, if available, would tend to inculpate the spoliating party), or preclusion of testimony at trial. Generally, in crafting an appropriate sanction, the trial court will consider two factors first and foremost: (1) whether the destruction was willful; and (2) the resultant prejudice.  Prior to bringing a spoliation issue to the court's attention, the practitioner should document by every means possible the intentional nature, if appropriate, of the spoliation at issue through investigation and discovery.