Recently, in Jekeya Gilliam v. University Holdings, LLC, et al, 2021 N.Y. App. Div. LEXIS 6845, the New York Appellate Division, First Department, held that “one’s body is the kind of evidence” that is not subject to a spoliation analysis.
The underlying suit arises from an accident that took place on June 25, 2017, when the Plaintiff was struck by a portion of a falling ceiling in her apartment. As a result of the incident, Plaintiff alleges she sustained an injury to her lumbar spine, specifically a disc bulge at L4-5. On May 22, 2018, Plaintiff filed suit against the defendant property owners, University Holdings, LLC. At a Preliminary Conference, held in August 2018, the Court ordered Plaintiff undergo an independent medical examination (IME) within forty-five (45) days of her deposition. Plaintiff’s deposition took place on January 7, 2019 and her IME was scheduled for March 6, 2019; plaintiff failed to appear for the IME. Instead, Plaintiff underwent a discectomy to her lumbar spine on April 2, 2019. Plaintiff attended an IME in May 2019. Thereafter, Defendants moved to dismiss Plaintiff’s Verified Complaint arguing Plaintiff’s intentional destruction of evidence, namely, her lumbar spine. Defendants argued spoliation applies as Plaintiff’s lumbar spine was significantly altered, as a result of the surgery, and, therefore, prejudiced their defense to damages. The Supreme Court denied the Defendant’s motion to dismiss but ordered sanctions which precluded Plaintiff from offering evidence as to her L4-5 injury. In support of its ruling, the Supreme Court cited to a Second Division decision, Mangione v. Jacobs, 2014 N.Y. App. Div. LEXIS 7135, which upheld the lower court’s dismissal of the Verified Complaint for failure to attend numerous medical evaluations and spoliation through surgery. Plaintiff sought an appeal.
Generally, spoliation is the willful or negligent destruction or substantial alteration of evidence. For a party to seek sanctions or remedies under a claim of spoliation “must establish that the non-moving party had [1] an obligation to preserve the item in questions, [2] that the item was destroyed with a culpable state of mind, and [3] that the destroyed item was relevant to the party’s claim or defense.” The Court begins their analysis of the type of evidence that spoliation is generally applied, namely inanimate objects (i.e. video footage, a computer, hard drives, etc.) and found that a person’s body party is fundamentally distinct. The Court characterized the duty to preserve one’s body as antithetical to a person’s personal liberty and control over their body. Moreover, the Court emphasized a plaintiff’s need to follow their treatment plan advised by a physician and to treat a plaintiff’s pain or discomfort level; regardless if such surgery was deemed “emergency” or not. The Appellate Division, First Department, ultimately held one’s body is not subject to spoliation and reversed the lower court’s decision.
From a defense perspective, if a pre-surgery IME is deemed necessary it would behoove the defendants to conduct an IME early in litigation and supplement the defense expert with medical records and plaintiff’s deposition as the evidence becomes available.
Spoliation! What is it Good for?