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