Having Spine Surgery Equals "Spoliation of Evidence"; Accident Case Dismissed

Court: Supreme Court, Queens County, New York

Case: Mangione v. Jacobs

Date: July 31, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury lawyer)


Facts: This is a bad decision that is wrong, wrong, wrong.

On December 2, 2009, plaintiff was injured in car accident. She was a passenger in a livery taxi that struck another car. The owner and driver of the taxi ask the Court to toss out this case on summary judgment motion, claiming that the taxi driver wasn't responsible for the accident. Opposition to that motion claims that the driver was on a cell phone at the time. This judge finds that there's a question of fact, after writing a long discussion about the dangers of cell phoners.

None of this amounts to a hill of beans because this judge is throwing out the plaintiff's case anyway, using terrible reasoning to do something awful.

This plaintiff had other, prior accidents and, in this case, missed a few court-ordered Independent Medical Exams. Now if you've followed my blogs, you'll know that I believe that an Independent Medical Exam by defendants' doctor is anything but "independent." Nonetheless, when you're ordered to go, you must go. And an accident plaintiff always must go, because her condition is put into the case by her injury claim.

Now in defendants' defense, it appears that plaintiff may have not been forthcoming in providing copies of her medical records from her prior bus accident, where she had the same attorneys as in this case.

Plaintiff skipped these IMEs in anticipation of spinal surgery; which she had on February 27, 2012. Plaintiff's lawyer argues it doesn't matter, since she had four other IMEs. The judge points out that these were No-Fault physical examinations -- not the same thing -- although I don't personally know why they don't count for something.

And this judge does cite to cases from courts in other states where the courts found that undergoing elective (non-emergency) surgery is not the same as wrongful destruction of evidence.

Here's where the choo-choo leaves the tracks. Instead of arguing for a discovery-violation remedy or punishment, as would be the usual case, the defendant argues "spoliation of evidence." A discovery remedy might call for another court order or a small fine as a penalty or some such. Here, by reason of the defense spoliation claim, this judge outright dismisses the plaintiff's case. This is improper. Spoliation is invoked when evidence is made unavailable. For example, a ladder breaks but is then thrown away. Or a car's brakes fail and the brakes are disposed of.

Here, the plaintiff could still be examined. All this judge had to do was lean on plaintiff's attorneys to provide all of her medical records from all of her accidents and then order her to go to an IME, or else he would strike her complaint and/or levy a fine. Perhaps the spinal surgery was even videotaped. Our legal system favors resolving court litigation "on the merits" and not by way of an unjustified case dismissal.

Held: An accident victim who has non‑emergency surgery before submitting to court order Independent Medical Exams has spoliated evidence.

Plaintiff's back surgery on Feb. 27, 2012, "was knowingly scheduled by the plaintiff and her counsel to frustrate the court‑ordered IMEs." The operation constituted a spoliation of evidence. Case dismissed.



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