American law is essentially rooted in fairness. Thus it permits an injured plaintiff to sue for personal injuries, and conversely gives a concomitant right to a defendant to defend a case brought against it. Based upon that common law premise, neither party can willfully destroy evidence that the non-violating party has a legal right to inspect or assess. Were this is not the rule of law to be strictly enforced, evidence that would be adverse to a party could be destroyed at will, thus preventing the opposing party from using the “destroyed” evidence in order to support or defend its case.
The willful destruction of evidence is what in the law is called “spoliation”. The keyword here is, “willful”, which means that the “spoliator” (the party who destroys evidence), must have acted with the intent to deprive the opposing party [be it plaintiff or defendant] from examining relevant evidence it has a legal right to inspect. That being the case, each party is under a strict duty to preserve evidence, and its failure to do so, will result in a sanction or remedy awarded to the innocent party commensurate with the degree of prejudice suffered as a consequence of the other party’s willful destruction of that evidence.
The remedy provided to the innocent party depends upon the degree of damage likely to be suffered in either the prosecution or defense of the case. Such remedies may range from a harmless “slap on the wrist”, to sanctions, to a final dismissal of the action if the plaintiff is the offender, or to a striking of the answer should the defendant be the spoliator, with a resulting directed verdict.
There are many cases that address the spoliation of evidence, but a recent one Mangione v. Jacobs, decided in the Supreme Court, Queens County, and published in the New York Law Journal on August 8, 2012, addressed the spoliation issue in what Justice Charles J. Markey described as a case of “first impression” in a well-scripted, broadly analyzed, and multiple case-cited opinion. In it, Justice Markey described the Mangione issue as being “novel”, and one that appeared for the first time in any court.
Briefly stated, the facts are these: The plaintiff claimed a back injury she suffered in one accident and an aggravation of the same injury resulting from a second accident one year later. The defendant in the second accident sought to have the plaintiff examined by way of an independent medical examination (IME). Despite the defendant’s efforts to conduct an IME, three scheduled appointments were all adjourned by the plaintiff. A fourth appointment was scheduled and confirmed for a date certain, but before the defendant had the opportunity to have the plaintiff examined by its own orthopedist, the plaintiff, one week prior to the scheduled appointment, elected to undergo surgery to that portion of her back that she claimed was injured in the first accident, and aggravated in the second.
The Court concluded that the surgery was neither urgent, nor performed as a result of an emergency situation, and that the plaintiff could easily have arranged to have had her elective back surgery performed after she submitted herself to the defendant’s scheduled IME. Thus, acting upon a motion by the defendant who argued that the plaintiff had willfully deprived the defendant of a physical examination to which it had a legal right to conduct, the Court held that the defendant suffered irreparable harm which no longer could be repaired. Result? The Court imposed the severest sanction in holding that the plaintiff had committed a “willful” act in avoiding an independent medical examination that irreparably infringed upon the defendant’s substantive rights. Having so concluded, the gavel came down hard, and the case was dismissed.
The novel feature of the Mangione case is that the Court’s decision was based upon the plaintiff’s willful and deliberate “spoliation of evidence”, and that as a direct consequence, the defendant was “irreparably” harmed and deprived of assessing plaintiffs back condition prior to her having undergone elective back surgery. Further, that plaintiff’s willful action deprived the defendant from mounting a defense that could have challenged the validity of the “aggravation of the prior back injury” claim, as well as the need for elective surgery performed just one week before the scheduled IME which plaintiff had already adjourned three times.
It will be interesting to follow the case as to whether an appellate court will agree with the trial court’s rationale in extending the rule of “spoliation of evidence” to the facts in the Mangione case. In any event, the decision directs attention to a warning that the courts will act severely against a party who willfully destroys evidence, with a strong admonition to those parties who might be tempted to “spoliate” evidence in order to gain an unfair strategic trial advantage.
The lesson to be learned here is a sobering one: Willful destruction of evidence is a risky business. It can cost many thousands of dollars in court-ordered sanctions, but even more significantly, it can cost you the case and the unfortunate consequences sure to follow. So play by the rules, avoid being on the wrong side of the “spoliation of evidence” issue, and let the case be decided on its merits. In the long run, as an ethical and responsible attorney, you will always come out the winner regardless of the outcome!