The Volokh Conspiracy

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Going in for My Spoliation Surgery Tomorrow

A trial court had held that nonemergency spinal surgery was “spoliation of evidence” in a case stemming from a spinal injury, because “the preservation of [] body parts in an intact state available to all parties for review is essential.”


From Gilliam v. Uni Holdings, decided last month by the N.Y. intermediate appellate court, in an opinion by Judge Scarpulla:

This appeal hinges on whether the condition of one's body is the kind of evidence that is subject to a spoliation analysis.

The case arises from an accident that took place on June 25, 2017, when plaintiff Jekeya Gilliam was struck by a falling portion of the bathroom ceiling in her apartment …. As a result of the accident, plaintiff allegedly sustained, among other things, injuries to her lumbar spine, including a bulging L4-L5 disc….

Plaintiff commenced this negligence action against defendant [building owner] on May 22, 2018. In a preliminary conference order, entered on August 10, 2018, [the trial court] ordered that plaintiff must appear for an "independent" medical examination (ME) within 45 days of her deposition. Then, in an October 26, 2018 compliance conference order, the court ordered that plaintiff's ME be held within 45 days from defendant's designation of a physician to perform the ME.

Plaintiff was deposed on January 7, 2019. Approximately one month later, defendant served plaintiff's counsel with an ME Designation Notice which stated that Dr. Daniel Feuer was designated to conduct plaintiff's ME on March 6, 2019. Plaintiff did not appear for the March 6th ME.

On April 2, 2019, plaintiff underwent a discectomy to her lumbar spine. Defendant served a second ME Designation Notice on April 3, 2019 that scheduled the exam for May 15, 2019. Plaintiff filed a supplemental bill of particulars on April 9, 2019 in which she disclosed the lumbar spine surgery and attached a HIPAA release form. Plaintiff appeared for an ME on the date scheduled in May….

[The trial court] denied defendant's motion to dismiss but sanctioned plaintiff by precluding her "from offering any evidence regarding an injury or surgery to her L4-L5 disc or recovering any damages for said injury or surgery."

The court opined that, in a personal injury action "the preservation of [] body parts in an intact state available to all parties for review is essential. Therefore, parts of an injured plaintiff's body fit comfortably into the type of evidence that can be spoliated. The plaintiff does not dispute that her lumbar spine has been altered from its pre-surgery condition. Here, the condition of the plaintiff's L5-SI lumbar spine was crucial evidence in determining the extent to which it was damaged as a result of the underlying accident."

In support of its spoliation order, [the trial court] cited other trial court decisions and held that "'a plaintiff who submits to non-emergency and non-life-threatening surgery prior to a court-ordered physical examination has committed spoliation of evidence.'" We now reverse and hold that the condition of one's body is not the type of evidence that is subject to a spoliation analysis. And, to the extent that these lower court decisions hold that spoliation analysis encompasses the condition of one's body, they should not be followed. To so hold would improperly subject a plaintiff's health condition to an unsuitable legal analysis. Instead, a failure to appear for an ME, regardless of whether the failure to appear is preceded by medical treatment for the condition at issue, should be analyzed the same as other failures to comply with court-ordered discovery.

Spoliation refers to evidence which is destroyed or substantially altered. New York spoliation cases encompass both the willful and negligent destruction of evidence. Over time, the courts have developed a set of criteria for determining whether evidence has been spoliated. Thus, a party seeking sanctions for spoliation "must establish that the non-moving party had an obligation to preserve the item in question, that the item was destroyed with a culpable state of mind, and that the destroyed item was relevant to the party's claim or defense."

Spoliation analysis has long been applied to a party's destruction of inanimate evidence [such as a pipe containing asbestos, a chair, surveillance videos, a computer, email, and the like].

The state of one's body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an "obligation," to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies.

It should also be noted that defendant has mischaracterized the nature and role of "independent" MEs in personal injury litigation, presumably to cast plaintiff's surgery as an egregious and sanctionable act. Such examinations "far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee's claimed injury and to dispute the need for any treatment at all." Viewed in this context, an ME is simply one piece of evidence in a personal injury action.

Plaintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor's advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury….

In addition, defendant was not "prejudiced" by plaintiff's medical treatment, as there is other evidence upon which defendant may rely, including plaintiff's pre-surgical and post-surgical medical records….

UPDATE: Thread winner, from Allan L.: "Spoliosis?"

FURTHER UPDATE: I've changed "Supreme Court" in the opinion to "[trial court]," since of course some readers might be confused by New York practice, in which the trial court is called the Supreme Court (and the state high court is called the Court of Appeals, with what most states call the courts of appeals being called the Appellate Division).