Archive for the ‘Evidence’ Category

Spoliation of Evidence, in the News

OK, which wise guy messed with the evidence?

Two cases in two different New York courts hit the same topic this past week: The evidence had been lost or destroyed. But if you thought that a couple hundred years of jurisprudence would have long resolved and standardized how these things are handled, you would be mistaken.

Case 1 takes place in federal court, where a musician used YouTube to offer up a $1M reward for his lost/stolen laptop. The artist, Ryan Leslie, claimed it had valuable intellectual property on it, that being unreleased songs, and he was desperate for its return. And he got the laptop back.

But despite getting it back, Leslie didn’t want to pay, claiming that the hard drive was damaged and the intellectual property that was on it couldn’t be accessed.

But he had an even bigger problem then wrestling with his attempt to renege on his promise. And that problem was that he gave the laptop to the manufacturer to obtain the information, and the manufacturer then wiped the hard drive clean. Oops.  Was the information actually there or not?

This is the crux of the legal argument, as quoted from the decision:

A party has an obligation to preserve evidence when “the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”

Leslie was on notice that the information on the hard drive may be relevant to future litigation and, as a result, had an obligation to preserve that information.

So what is the standard in federal court for a sanction against the party that loses or destroys the evidence? Is it intentional destruction of evidence? Bad faith? Mere negligence? In the Second Circuit, the answer is, “it depends.” Decisions are made on a case by case basis according to the Second Circuit. And in this case, trial judge Judge Harold Baer found that because “the hard drive was destroyed when litigation was all but certain, I find that Leslie and his team were at least negligent in their handling of the hard drive.”

While the judge was asked by the plaintiff to grant summary judgment — an automatic win without a trial — he opted instead to give an adverse inference to the jury. They would be told, as a matter of law, that Leslie had possession of the hard drive and could assume litigation would follow based on the facts. The jury could, in other words, assume the worst.

And with that, the jury came back a few days ago with a $1M verdict.

Switch now to case 2, this time in state court. In Staten Island, a medical malpractice case is being waged over administration of the drug Plavix. The problem? Staten Island University Hospital has lost (or deep-sixed?) the critical ”Medication Discharge Reconciliation Form” that would contain the information that was needed. As per Judge Joseph Maltese, sitting in the trial court:

[O]ut of the entire medical record concerning the plaintiff, the June 21, 2011 “Medication Discharge Reconciliation Form” is missing.

Oops, again. But while the standard may be loose in federal court as to what to do in this situation (the discretionary case-by-case basis described above) it is not in state court. Judge Maltese pointed out that the hospital knocked itself out with a single punch:

“It is well settled that when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.” Here, the crux of the plaintiff’s case is the defendant hospital’s failure to prescribe the proper medication upon her release on June 21, 2011. While this court is sympathetic to the defendant hospital’s contention that it has diligently searched for the record, it does not change the fact that after nearly a year of searching it has not been found. Staten Island University Hospital has been negligent in maintaining the plaintiff’s file, which it had a duty to maintain for six years from the date of discharge.

For the non-lawyers in the crowd, striking a pleading means an automatic win. It’s what the plaintiff wanted in the laptop case, but the judge declined to give opting for a lesser sanction.

Two different cases on spoliation, one state, one federal. The results are the same (plaintiff wins).  But the way each one got there is different (one case given to the jury with a negative inference and the other taken out of the jury’s hands and decided as a matter of law).

Hey, I found it interesting. Your mileage may vary.

Can a sworn medical opinion that relies on unsworn MRI reports constitute competent evidence? (Is that kosher?)

Today’s issue starts out straightforward with a malpractice case. But pay attention, because the real application of this decision is in New York’s No-Fault law and litigation over “serious injuries” in car accidents.

Plaintiff brought a malpractice case against chiropractors alleging that they caused her to suffer severe spinal cord injury requiring surgical intervention. Defendants move to dismiss. In response, plaintiff puts in an affidavit from a chiropractor. Since it’s an affidavit, it’s sworn. But the chiropractor relies on unsworn MRI reports. Is that OK?

Yes, says the Appellate Division (Third Department) in a decision released yesterday, Caulkins v Vicinanzo. While it is true that “uncertified medical records and unsworn letters or reports are of no probative value” in opposing a summary judgment motion, in this case the affidavit is a sworn document. And the appellate court, in holding that the affidavit could rely on unsworn documents, plucked a footnote from the Court of Appeals decision in Pommells v. Perez, which said:

“Though the MRI reports were unsworn, the various medical opinions relying on those MRI reports are sworn and thus competent evidence.”

Now in theory, the case favors neither plaintiffs or defendants, since either can make a motion for summary judgment.

But that’s only theory. It’s real application comes not in the world of medical malpractice, where summary judgment motions are relatively rare, but in the realm of car accidents and defense allegations that the “serious injury” threshold under New York’s miserable No-Fault law was not met.

The reality is that some offices are fighting these types of summary judgment motions every day. (And the courts hate them.) And many of those cases have small insurance policies (25K) that make it essential for personal injury lawyers to litigate with great efficiency. Defense lawyers, of course, being funded by the multi-billion dollar insurance companies, don’t have that problem. If the plaintiffs need additional affidavits from radiological experts to corroborate what the initial radiologist said, it is an additional expense.

So you can bet that this case will be cited in the months and years to come for those that fight those battles. Ultimately, it’s a win for car wreck victims as it helps to streamline an already miserable part of New York’s auto accident practice.

Efficiency is a good thing when you work on contingency. And it’s good for the victims too, who often have trouble finding counsel for cases that have limited upside due to small insurance policies.