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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. New York Court Upholds Dismissal of Action for Spoliation of Evidence
  2. Florida Appeal Court Discusses Sanctions for Spoliation of Evidence
  3. New Jersey Court Reaffirms Spoliation Not A Recognized Tort But Admits Evidence of Destruction


In New York Cent. Mut. Fire Ins. Co. v. Turnerson's Elec. Inc., No. 2000-03327, (Feb. 26, 2001), the Appellate Division of the Supreme Court of New York reviewed a trial court order dismissing a plaintiff's complaint for spoliation of evidence. The house was so destroyed that the Fire Department was unable to determine the cause of the fire. Shortly after the fire, the plaintiff hired a private investigator to conduct an investigation. The investigator, who had no formal education beyond high school and limited training in the area of fire analysis, issued two reports concluding that the fire was electrical in nature. During the course of his inquiry, the investigator removed an electric circuit panel box from the scene of the fire in order to further examine it. However, acting on instructions from a claims adjuster employed by the plaintiff, the investigator later destroyed the circuit panel. Based upon the investigator's opinion that the fire was electrical in origin, the plaintiff thereafter commenced this action against the defendants, contending, inter alia, that they had negligently performed electrical work in the house.

After suit was filed, the defendant's moved for summary judgment to dismiss the complaint for intentional destruction of evidence. Where, as here, a party destroys key physical evidence "such that its opponents are 'prejudicially bereft of appropriate means to confront a claim with incisive evidence' ", the spoliator may be punished by the striking of its pleading (DiDomenico v C & S Aeromatick Supplies, 252 AD2d 41, 53, quoting Kirkland v New York City Hous. Auth., 236 AD2d 170, 174). The plaintiff intentionally ordered the destruction of the circuit panel in the course of gathering evidence for a potential subrogation action, and the defendants have been prejudiced by the destruction of this key item of physical evidence. Accordingly, dismissal of the plaintiff's complaint was an appropriate remedy.


In Strasser v. Bose, Case No. 4D98-3573 (PDF viewer needed), the Fourth District Court of Appeal discussed appropriate sanctions for evidence spoliation. The case involved a billing dispute for fees owed after two doctors stopped practicing together. Evidence suggested that records and a computer hard drive were destroyed. The initial lawsuit was amended to add a spoliation of evidence claim. The original data was allegedly lost because of a roof leak or mysterious chemical spill. Once the trial court ordered the hard drive made available it to was found missing and thrown away.

The plaintiff sought in the trial court permission to offer evidence of the evidence destruction. The trial court agreed finding the disappearance suspicious. The Appellate court affirmed noting the evidence was necessary for the plaintiff to prove his claim of negligent destruction of evidence. The Appellate court found the defendant had a duty to preserve evidence sought through discovery requests. The court permitted recovery for spoliation of evidence and breach of contract.


In Rosenblit v. Zimmerman, A-58/61-99, the New Jersey Supreme Court reviewed a medical malpractice and fraud verdict. The defendant a chiropractor, treated the plaintiff, a registered nurse, for mid back pain. The treatment consisted of neck manipulations that the plaintiff later claimed caused neck pain, headaches, nausea and ringing in her ears. She sought the advice of other doctors and, underwent orthopedic surgery to correct an instability in her vertebrae. She claimed that her mid back problems disappeared only after the surgery.

She sued for medical malpractice and obtained a copy of her medical chart from his office. During discovery, however, she was provided with another chart, which contained a completely different report. He claimed that the second chart was recopied off the original, which was subsequently destroyed, and any differences were due to his attempt to make the record more complete.

The plaintiff amended her complaint to include counts for spoliation and fraudulent concealment of evidence. The trial court severed the malpractice counts from the spoliation and fraudulent concealment counts. All claims were tried by the same jury, with the malpractice case proceeding first. The plaintiff was not permitted to enter into evidence the defendant's alteration of the medical chart, unless it was to be used to impeach the doctor's credibility. Defense counsel did not call him to the stand and the plaintiff was barred from entering the record alteration into evidence. The malpractice trial proceeded with her original chart being placed into evidence.

The jury returned a verdict in favor of the doctor in the medical malpractice portion of the trial and in favor of the plaintiff on the issue of fraudulent concealment. The jury awarded her $421.75 in compensatory damages and $500,000 in punitive damages. On remittitur, the punitive damages award was reduced to $150,000. She appealed, arguing that the trial court should have permitted her to enter into evidence the doctor's record alterations. The doctor cross-appealed, arguing that the plaintiff had the original unaltered documents at trial and thus suffered no prejudice.

The New Jersey Supreme Court held neither a claim for spoliation nor a separate tort action is appropriate where the plaintiff has uncovered defendant's concealment and obtained the original unaltered record prior to trial. However, absent extraordinary circumstances, evidence of intentional alteration or destruction of medical records by a physician accused of malpractice should not be excluded during the trial. The trial court erred in not permitting the plaintiff to present the jury with evidence of the doctor's alteration of her medical records. As a party, the opposing party can enter into evidence a statement made by his or her adversary. The defendant's actions were tantamount to a statement that was evidential against him under that rule. Such evidence could have had a substantial impact in the case and, absent extraordinary circumstances, should not have been excluded as prejudicial.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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