This was originally posted on the SGR Blog.
Did Court Properly Impose Sanction for Spoliation of Evidence?
Scene set: A tenant suffers a back injury in a ceiling collapse. The owner demands an independent medical examination. Before the exam, the injured party has back surgery. The owner cries foul.
Was the condition of her body the kind of evidence that was subject to a spoliation (destruction of evidence) analysis?
Jekeya Gilliam was struck by a falling portion of the bathroom ceiling in her apartment, located at 1815 University Avenue in the Bronx. As a result of the accident, Gilliam allegedly sustained injuries to her lumbar spine, including a bulging L4-L5 disc. The building where the accident transpired was owned by University Holding, LLC, and Gilliam brought a negligence action against University.
In a preliminary conference order, entered on August 10, 2018, Supreme Court ordered Gilliam to appear for an “independent” medical examination (or so-called ME) within 45 days of her deposition. Then, in an October 26, 2018 compliance conference order, the Court ordered that the ME be held within 45 days from University’s designation of a physician to perform the ME.
Gilliam was deposed on January 7, 2019. Approximately one month later, University served Gilliam’s counsel with an ME Designation Notice which stated that Dr. Daniel Feuer was to conduct the ME on March 6, 2019. Gilliam did not appear for the March 6th ME. On April 2, 2019, she underwent a discectomy to her lumbar spine. University served a second ME Designation Notice on April 3, 2019 that scheduled the exam for May 15, 2019. Gilliam filed a supplemental bill of particulars on April 9, 2019, in which she disclosed the lumbar spine surgery and attached a HIPAA release form. Gilliam appeared for an ME on the date scheduled in May.
After completing the ME, University moved to dismiss Gilliam’s complaint, claiming that the surgery resulted in the spoliation of critical evidence, and, alternatively, sought an order issuing spoliation sanctions for Gilliam’s failure to appear for an ME and intentional destruction of evidence. University argued that Gilliam was obligated to preserve the condition of her spine, as it was evidence, and the surgery “drastically” altered the spine’s condition to its prejudice. And because there was nothing submitted by Gilliam suggesting that the surgery was urgent, her pre-ME discectomy amounted to willful alteration of evidence.
Supreme Court denied University’s motion to dismiss but sanctioned Gilliam by precluding her “from offering any evidence regarding an injury or surgery to her L4-L5 disc or recovering any damages for said injury or surgery.” The Court opined that, in a personal injury action, the preservation of body parts in an intact state available to all parties for review was essential. Therefore, parts of an injured person’s body fit comfortably into the type of evidence that could be spoliated. Gilliam did not dispute that her lumbar spine had been altered from its pre-surgery condition. And the condition of Gilliam’s lumbar spine was crucial evidence in determining the extent to which it was damaged as a result of the underlying accident. Gilliam appealed.
In support of its spoliation order, Supreme Court cited other trial court decisions and held that a plaintiff who submits to non-emergency and non-life-threatening surgery prior to a court-ordered physical examination had committed spoliation of evidence. But the appeals court reversed, holding that the condition of one’s body was not the type of evidence that was subject to a spoliation analysis. And, to the extent that lower court decisions held that spoliation analysis encompassed the condition of one’s body, they should not be followed. To hold otherwise would improperly subject a plaintiff’s health condition to an unsuitable legal analysis. Instead, a failure to appear for an ME, regardless of whether the failure to appear is preceded by medical treatment for the condition at issue, should be analyzed the same as other failures to comply with court-ordered discovery.
Spoliation refers to evidence which is destroyed or substantially altered. New York spoliation cases encompass both the willful and negligent destruction of evidence. Over time, the courts developed a set of criteria for determining whether evidence had been spoliated. Thus, a party seeking sanctions for spoliation must establish that the non-moving party had an obligation to preserve the item in question; the item was destroyed with a culpable state of mind; and the destroyed item was relevant to the party’s claim or defense.
Spoliation analysis has long been applied to a party’s destruction of inanimate evidence. But the state of one’s body was fundamentally different from inanimate evidence. And medical treatment, including surgery, was entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempted to ameliorate. To find that a person had an “obligation,” to preserve his or her body in an injured state so that a defendant could conduct an ME, was antithetical to the belief in personal liberty and control over our own bodies.
University mischaracterized the nature and role of “independent” MEs in personal injury litigation, presumably to cast Gilliam’s surgery as an egregious and sanctionable act. Such examinations, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all. Viewed in this context, an ME is simply one piece of evidence in a personal injury action.
Personal injury plaintiffs must be free to determine when to undergo medical treatments based on personal factors, such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party alleged to have caused the injury.
Gilliam’s pre-ME spine surgery did not result in the spoliation of evidence. University’s categorization of the surgery as “non-emergency” did not alter that conclusion. And University was not “prejudiced” by Gilliam’s medical treatment. There was other evidence upon which University could rely, including Gilliam’s pre-surgical and post-surgical medical records.
The Order of Supreme Court was reversed to the extent it granted University’s motion for spoliation sanctions.