EXECUTIVE SUMMARY: This
weekly newsletter covers:
Iowa Supreme Court Discusses Spoliation Doctrine
Eighth Circuit Affirms Finding Of No Coverage For Fire
Michigan Court Upholds Verdict For Wrongful Death
IOWA SUPREME COURT DISCUSSES SPOLIATION DOCTRINE
In Janet Phillips, et al v. Covenant Clinic, No. 48/99-0865 (April 25, 2001), the Iowa Supreme reviewed the spoliation doctrine. Janet Phillips, as executor of her father's estate, brought a wrongful death action against the Covenant Clinic and three physicians after her father died of heart failure shortly after being treated at the clinic. The district court granted summary judgment for the clinic and the physicians, concluding that Janet had presented insufficient facts to support the proximate cause element of her claim. Janet appealed, claiming she was entitled to an inference derived from the failure of the clinic to produce medical records to support a genuine issue of material fact with respect to causation.
In June 1996, Janet sought her father's medical records from the clinic. The clinic subsequently informed Janet that her father's medical file was missing. No one at the hospital or clinic had seen Paul's medical file since it had been hand delivered to the intensive care unit by Dr. Pattee on January 3, 1996. The only document the clinic was able to produce was Cortes' notes from the January 3 office visit. The clinic asked Janet to check Paul's personal belongings from the January 3 hospitalization to ensure the clinical records had not been inadvertently included with those belongings. The medical records were not found.
Janet alleged medical malpractice against the Covenant Clinic, Dr. Roth, Dr. Pattee, and Dr. Ronald Flory. Pursuant to Iowa Code section 668.11 (1997), Janet named Dr. R. William Overton, III, as her medical expert. Dr. Overton concluded the clinic doctors breached their duty of care in treating Paul on January 3, 1996, by permitting him to leave the clinic before reviewing the EKG results. However, because Paul's medical file was unavailable for review, Dr. Overton was unable to conclude the breach caused Paul's death. The only document available for Dr. Overton to review was the office notes prepared by Cortes regarding the January 3 office visit. This document consisted of both dictated and handwritten notes. Dr. Overton concluded Cortes added the handwritten notes after her dictation had been transcribed, and found this conduct was potentially indicative of an attempt to conceal the medical records.
The defendants moved for summary judgment. They claimed Janet's failure to establish a causal relationship between the doctors' purported breach of the standard of care and Paul's death was fatal to her claim. Janet resisted the motion. She claimed the defendants' failure to produce relevant records within their control entitled her to an inference that the missing medical records contained evidence unfavorable to the defendants, and that this inference gave rise to a genuine issue of material fact on the causation element. The district court granted the motion for summary judgment. Although the expert in the case, Dr. Overton, concluded the defendants breached the duty of care they owed to Paul, he was unable to establish the existence of a causal relationship between this breach and Paul's death. Additionally, Dr. Overton could not even state that there was a possibility that Paul would have survived absent the defendants' breach.
Notwithstanding, Janet argues that the clinic's failure to produce the medical records gives rise to an inference that the physicians' conduct in treating her father was negligent and the cause of his death. She claims this inference is sufficient to overcome the motion for summary judgment.
It is a well established legal principle that the intentional destruction of or the failure to produce documents or physical evidence relevant to the proof of an issue in a legal proceeding supports an inference that the evidence would have been unfavorable to the party responsible for its destruction or nonproduction. The nonproduction, alteration, or destruction of evidence is commonly referred to as spoliation. When established, the inference is regarded as an admission by conduct of the weakness of the party's case. The inference is imposed both for evidentiary and punitive reasons. The evidentiary value of the inference is derived from the common sense observation that a party who destroys a document with knowledge that it is relevant to litigation is likely to have been threatened by the document. Beil v. Lakewood Eng'g & Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994) (when a party to an action has notice that an item is relevant to the lawsuit and proceeds to destroy the item, "common sense" dictates an inference that the party destroying the item is likely to have been threatened by the evidence). Additionally, an inference serves to deter parties from destroying relevant evidence.
Janet argued she was entitled to the inference for purposes of summary judgment because the facts of her case must be considered in a light most favorable to her claim and all reasonable inferences must be drawn in her favor. However, this familiar rule of summary judgment applies to factual inferences, not those grounded in a legal principle. Janet was not entitled to the spoliation inference without showing the existence of a genuine issue of material fact supporting the inference. Thus, she must show intentional destruction of the records as well as control of the records. In doing this, she is entitled to have all reasonable inferences from the evidence drawn in her favor.
The factual basis to support the intentional nonproduction of the records in this case is based on Dr. Overton's belief that the addition of handwritten notes to the transcribed notes of the physician's assistant was unusual and suspicious, and could indicate a broader attempt by the clinic and its doctors to conceal information. Yet, the court thought that logic amounts only to bare speculation and conjecture, and cannot be legitimately inferred from the facts.
The handwritten notes made by the physician's assistant may have supported a reasonable inference that the information was added to the transcribed notes with a motive to protect against potential litigation. However, it would be rank speculation to infer from that fact, considered in a light most favorable to Janet's claim, that the other records of the clinic were intentionally destroyed because the doctors believed that those records contained adverse information relevant to a potential lawsuit. The motive of the physician's assistant to bolster her notes in anticipation of potential litigation does not show a motive by the clinic or its doctors to intentionally purge themselves of any records to prevent their production during any subsequent litigation. Moreover, Janet has produced no other circumstances in addition to the physician's assistant's notes to support the spoliation inference. There were no circumstances alleged to show the clinic or its physicians believed the records might be harmful to them in any lawsuit, or other circumstances raised by Janet which are compatible with the common sense observation which supports the inference and the imposition of sanctions against the clinic or the physicians. Additionally, Janet had failed to show the existence of a genuine factual issue that the clinic even possessed or controlled the records at any relevant time to support the imposition of the spoliation inference. To the contrary, the facts are unchallenged that the records were delivered to the hospital. Hence, the court affirmed the judgment for the defendants.
EIGHTH CIRCUIT AFFIRMS FINDING OF NO COVERAGE FOR FIRE
In Brandt Distrib. Co. v. Federal Ins. Co.,(PDF Format) No. 00-2598; Eighth Cir. Court of Appeals (April 25, 2001), a jury returned a verdict finding no coverage for the insured's claim that his business was damaged by a fire. The jury found intentional misrepresentations by the insured and he was involved in starting the fire.
On appeal, the insured challenged the testimony of a fire captain stating the fire was a fraud fire. He also opined the fire was set for fraudulent purposes. There were three separate points of origin. His testimony reflected the circumstances weighed against other possible reasons for an arson fire such as a random act or act of revenge. His testimony was a logical inference and did not usurp the province of the jury. The verdict for the insurance company was upheld.
MICHIGAN COURT UPHOLDS VERDICT FOR WRONGFUL DEATH
In Bouverette v. Westinghouse,(PDF Format) No. 219451 (April 20, 2001), > the Michigan Court of Appeals reviewed a jury verdict against the defendant for breach of implied warranty, defective design and failure to warn. An electrician was killed while working on a control panel containing circuit breakers manufactured by the defendant.
Plaintiff's evidence on failure to warn revealed the breaker did not make or break simultaneously as intended and used with an external linkage handle. Further, the instruction manual did not provide a warning to that effect. There was evidence that electricians relied on the breaker to shut off power simultaneously. The court also held privity of contract was not necessary for an express warranty claim. The judgment was affirmed.
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