We have not read a case decision which serves as a mini-essay in a while.  What is spoliation of medical evidence and how is it remedied?  What should the attorney have done in the face of the need for elective surgery in a PI case?  Did the attorney handle the situation correctly?  All these questions are raised and answered in Mangione v Jacobs   2012 NY Slip Op 22211   Decided on July 31, 2012   Supreme Court, Queens County   Markey, J.
 

"The most important issue in this opinion is raised by the motion to dismiss by defendant Jacobs. The plaintiff, Mangione, who previously had been involved in other accidents and personal injury lawsuits, ignored numerous court orders requiring her appearance at Independent Medical Examinations ("IMEs") in this action.The purpose of an IME is to verify a plaintiff’s alleged physical injuries and to determine the nature, extent, and cause of any injuries or medical conditions observed.

Specifically, in another action, Susanna Mangione v Metropolitan Transit Authority Bus Company and Caesar Russo, pending in this Court under index number 20671/2009, and awaiting trial, the plaintiff claimed personal injuries to her back and shoulder – – the same body parts that plaintiff contends were injured by the accident in the case at bar. In the earlier action under Index Number 20671/2009, plaintiff was a passenger in a bus on November 17, 2008, that allegedly came to a sudden stop, causing her to fall down. In that case, in two separate decisions, both dated Dec. 2, 2011, and both entered on Dec. 7, 2011, Justice Allan B. Weiss denied a defense motion for summary judgment and denied Mangione’s motion to consolidate that case with the instant action. The defendants in the present action contend that they have repeatedly requested the medical records from that earlier action involving Mangione as a rider on a bus, but, to date, they have not been produced, even though Mangione is being represented in both actions by the same counsel. [FN1]

On January 31, 2011, counsel for the parties in the case at bar appeared for a preliminary conference, and the undersigned issued an order directing that the plaintiff appear for IMEs within 45 days of her examination before trial [that was held on September 14, 2011]. On October 5, 2011, counsel for all parties in the present case appeared before Justice Ritholtz for a compliance conference. Justice Ritholtz ordered that defendants designate their doctors for the IMEs within 30 days and that the plaintiff appear 30 days thereafter for the physical examination.

The defense contention on the motion to dismiss the complaint is that plaintiff’s surgery on Feb. 27, 2012, and not going to IMEs prior to the surgery, despite three court orders, constituted the intentional spoliation of evidence warranting the most stringent sanction of dismissal of the plaintiff’s complaint.

Spoliation of evidence, in all forms, thwarts the proper functioning of our courts. See, Cedars-Sinai Med. Ctr. v Superior Court, 18 Cal. 4th 1, 8, 954 P2d 511, 515, 74 Cal. Rptr. 2d 248, 252 [1998] ["(T)he intentional destruction of evidence should be condemned. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both."]; accord, U.S. Fidelity & Guar. Co. v American Re-Insurance Co., 93 AD3d 14 [1st Dept. 2012] [quoting approvingly a California trial court decision observing that insurer, concerned with a "litigation crisis," destroyed documents in order "to make it more difficult for insureds to establish coverage."].

The United States Court of Appeals for the Second Circuit, in Byrnie v Town of Cromwell Board of Education, 243 F3d 93 [2001], explained that spoliation sanctions serve three purposes:

(1) deterring parties from destroying evidence;

(2) placing the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and

(3) restoring the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation.

Read on in the case for a detailed analysis of medical evidence spoliation and remedies.