New York Court Rules Non-Emergency Surgery Constitutes Spoliation

There is an interesting case in New York this week concerning destruction of evidence. Supreme Court Justice Charles J. Markey handed down a decision on July 31, 2012 in a personal injury case that the plaintiff electing to have surgery effectively denied the defendant evidence to contest her claim stemming from a fall on a bus. The case is Mangione v Jacobs and is worth reading.

The underlying claim included the question of liability for violating “hands free” driving given the allegation that a taxi driver was on the cellphone at the time of the accident:

On December 2, 2009, the plaintiff Susanna Mangione (“Mangione”) was a passenger in a taxi, livery cab, or vehicle for hire (collectively referred to, for sake of convenience, as “the taxi”) owned by defendant Ramabel Limo, Inc. (“Ramabel”) and operated by defendant Glener V. Simbana (“Simbana”). The vehicle carrying Mangione collided, in Queens County, with the car owned and operated by defendant Jules J. Jacobs (“Jacobs”).

First, defendants Ramabel and Simbana have moved for summary judgment only on the issue of liability, contending that the accident was solely the fault of defendant Jacobs. Mangione opposes the motion for summary judgment alleging that, while she was a passenger in the taxi, she had observed its driver, defendant Simbana, talking out loud, conveying the impression that he was, while driving, continuously engaged in conversation with someone while using either an earpiece or a “hands free” telephone device.

While IMEs were conducted on a different question, the Court found that the plaintiff failed to appear for the court ordered IME and rejected the plaintiff’s claims that the defense consented to spinal surgery.

Markey ruled that the plaintiff engaged in spoliation of evidence when she elected to have a surgery before defense doctors could conduct Independent Medical Examinations (“IMEs”) pursuant to court orders.

In the opinion below, the court slams plaintiff’s counsel in the case and finds “On Nov. 14, 2011, plaintiff’s counsel filed a note of issue in this action, attaching a certificate of readiness signed by Sameer Chopra, Esq., of plaintiff’s counsel, falsely claiming that ‘Physical Examinations [were] completed.'”

Justice Markey dismissed the complaint for her failure to comply with three court orders requiring her attendance at the IMEs and her decision to have the non-emergency spinal surgery. It is an important decision on scope of spoliation in such surgery cases — a common problem in torts cases.

Markey quotes Justice Holmes in saying “Even a dog distinguishes between being stumbled over and being kicked.” Markey held:

“Although not restricted to the least onerous sanction, in order not to deprive a party of his or her day in court, a court should consider whether the damage and prejudice to a victim of spoliation are irreparable or may be remedied by the imposition of lesser spoliation sanctions, short of outright dismissal of a pleading. See, Chrysler Corp. v Carey, 186 F.3d at 1020, supra; Process Controls Intern., Inc. v Emerson Process Mgt., 2011 WL 5006220, slip op. at 7 [E.D. Mo. 2011]. In the calculus of appropriate sanctions, a court must also consider, as discussed above, deterring other would-be spoliators; otherwise, a judicial opinion that simply slaps a wayward litigant on the wrist for disobeying three court orders might embolden and reward miscreants who would destroy, rather than preserve and furnish, an important piece of evidence. A court should not give its imprimatur to an intentional destruction of evidence and thwarting of court orders, if it intends to stem a contagion of spoliation.”

I have handled such spoliation cases and I can see a myriad of analogies. The key in this case was that the plaintiffs was under orders to appear for an independent examination and that the surgery was a non-emergency matter. The court rejected the arguments of the plaintiff that she was in a coma for part of the relevant period: “Mr. Chopra, in one of the submissions to this Court, says that Mangione was in a coma for several days following her surgery. Even if true, the fact that Mangione may have been in a post-surgical coma for a few days does not support, countenance, or bolster the immediate rush for an operation, where three court orders directed attendance at IMEs.” The court found that “Mangione’s spinal surgery on Feb. 27, 2012, was knowingly scheduled by the plaintiff and her counsel to frustrate the court-ordered IMEs, especially the order of Justice Ritholtz of Jan. 25, 2012, and that the aforementioned operation constituted a spoliation of evidence.” No action was taken about plaintiff’s counsel however.

Putting aside the factual disputes, the legal interpretation is likely to be cited in cases outside of New York. It shows the perils of such surgeries without a clear record of notice and consent — as well as a conference with the court. The opinion below notes that some courts have rejected spoliation claims concerning such non-emergency surgeries.

Judge Markey is a graduate of Manhattan College, B.A., 1964 and St. John’s Univ., School of Law, J.D., 1973.

Here is the opinion: MANGIONE v JACOBS.Spoliation of Evidence by Surgery

17 thoughts on “New York Court Rules Non-Emergency Surgery Constitutes Spoliation”

  1. Got rear ended in Albuquerque. Other guys car was stuck under my pickup. Insurance company called and said do you have whiplash.? No. Are you sure? Yes. They sent me a check for about $2,000 to fix my pickup.

  2. Worst case scenarios happening on their own are unlikely. I’ve found they tend to crop up more often when one person’s “worst case” is another person’s “opportunity”. Like politics… or terrorism.

  3. MASkeptic: In my experience, the worst case scenario is extremely unlikely as the burden of scheduling the exam is on the defendant. All the plaintiff had to do is notify the defendant of anticipated surgery so a defense medical can be scheduled immediately. I practice in another state, but getting that kind of notification is not unusual. That places the onus on us to either get the examination done or do it after the surgery. The same occurs when someone wants to repair a significant item damaged as a result of an incident.

  4. Dredd,
    ‘Under the facts of this case’ I agree, the plaintiff failed to appear for three separate scheduled IMEs and is believed to have colluded with their attorney to schedule the surgery to stifle the defendant’s attempts to verify their claims of injury.
    >”Speculation is no way to run a court.”
    Correct but discussion and speculation regarding legal matters is the purpose of /this/ forum, that and the occasional cute animal picture.

    >”Those who have a problem w/ this decision are either lacking in common sense or they are personal injury attorneys.”
    Charming but I’m neither. I’m just wondering aloud how far the precedent will reach and in what direction. Like I said, ‘worst case scenario’.

  5. MASkeptic 1, August 1, 2012 at 1:18 pm

    Sorry rafflaw, I’m a worst case scenario guy. If I was a soulless profit corp trying to get out of a big lawsuit I would use this precedent to keep someone in living hell to either force a settlement or dismissal.
    Under our system of law we consider the relevant / material facts of a case to be dispositive.

    Anything more is dicta.

    Speculation is no way to run a court.

    The decision is sound on the facts of this case.

  6. Those who have a problem w/ this decision are either lacking in common sense or they are personal injury attorneys. Of course, they could be part of both demographics.

  7. Tirty, turd and a turd. New Yorkies. What is emergency surgery judge? I am off the ambulance and my bone is sticking out of my thigh? Or I have a lawsuit but I cant fix the herniated disc until I wait for the court in Manhattan to get to my case. New York–fly over and flush. Bad place for dogs.

  8. It has not happened to me–yet–but some colleagues have run into some strange situations by opposing attorneys. The attorneys wanted copies of “each and every draft” of their professional reports. Of course, practically everyone edits reports when they come back from dictation, and with my own OCD, I may spend a whole day rewriting as much as whole paragraphs, deleting or adding sentences and in general polishing up the report. Most of my colleagues do the same, and since the advent of word processing programs, there is no record of every draft. We no longer use typewriters and carbon paper.

    Several professionals have told me a claim of spoliation was used by counsel opposite. The claim was made their reports should not be allowed due to, “failure to produce a full record,” claiming that editing was spoliation of the records. I have not heard of that being successful yet, but cannot help but believe it is only a matter of time.

  9. Sorry rafflaw, I’m a worst case scenario guy. If I was a soulless profit corp trying to get out of a big lawsuit I would use this precedent to keep someone in living hell to either force a settlement or dismissal.

  10. Here is another conundrum. Defendant (or plaintiff) is suffering from mental illness. Asks private psychiatrist for medication, gets it and it works, then the IME says the person is “just fine” and nothing wrong with them.

    As for elective surgery, there are many ways to document the pre-surgery condition, including photographs, x-rays, lab tests and testimony of treating surgeon and physician(s).

  11. This is the best (read: worst)! I can’t wait to see how long an attorney can drag out someone’s suffering by making them wait to get “non-emergency” surgery to relieve crippling pain. Now there can be additional prolonged physical suffering in addition to the medical bills, legal fees, stress, psychological trauma, & lost income while you’re bedridden and unable to work. The only way this could be better would be if there was some kind of cap to limit recovery (HAHA).

  12. I agree with the court as long as the surgery was not an emergency situation. The record seems to indicate that the plaintiff could have waited on the surgery. Why would the plaintiff have the surgery and put her own case at risk? Was she hiding something about the injury or pre-existing conditions? Stupid lawyering.

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