Going in for My Spoliation Surgery Tomorrow

Start at Gilliam v. Uni HoldingsThe N.Y. intermediate appeals court ruled that the matter was a miscarriage of justice.

The appeal depends on the quality of the evidence subject to the 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 brought this action for negligence against the defendant [building owner]On May 22, 2018, the Supreme Court issued a preliminary conference order. A preliminary conference order of the Supreme Court, dated August 10, 2018, required that plaintiff appear in an independent medical exam (ME) within 45 calendar days after her deposition. In a compliance conference order dated October 26, 2018, the court also ordered plaintiff to appear for an “independent” medical examination (ME) within 45 days of defendant’s appointment as a doctor.

On January 7, 2019, plaintiff was taken into custody. One month later, plaintiff was taken into custody by defendant. A ME Designation Notice was served to plaintiff’s counsel. It stated that plaintiff had chosen Dr. Daniel Feuer as the conductor of her ME. Plaintiff failed to appear on the 6th March ME.

Plaintiff had a discectomy performed on her lumbar spine. The defendant served plaintiff with a second ME Designation Notice on April 3, 2019. This scheduled the exam to take place May 15, 2019. Plaintiff submitted a supplement bill of particulars to the defendant on April 9, 2019. In which she detailed her lumbar spine surgery, and included a HIPAA waiver form. Plaintiff appeared for an ME on the date scheduled in May….

Supreme Court granted defendant’s motion for dismissal, but she sanctioned plaintiff by preventing her from “offering any evidence regarding an injury to her L4/L5 disc or recovering damages for that injury.”

In a personal injury case, the court held that “the preservation []Essential is the availability of intact body parts to all parties. The evidence can only be used to reconstruct the body of the plaintiff who has been injured. Although the plaintiff doesn’t dispute her claim that her lumbar spine was altered in comparison to its condition before surgery, she does acknowledge this. In this instance, we used the L5SI condition of the plaintiff’s L5-SI Lumbar Spine to establish the extent of its damage due to the underlying accident.

Supreme Court relied on other trials court decisions to support its spoliation order and held that “a plaintiff subject to non-emergency, non-life-threatening surgery in advance of a court ordered physical exam has committed the crime of spoliation. The Supreme Court reversed the ruling and ruled that one’s physical condition does not constitute evidence subject to a “spoliation analysis”. These lower court rulings do not support the notion that spoliation analysis includes one’s physical condition. This would unfairly expose a plaintiff’s medical condition to inappropriate legal analysis. Instead, failure to appear in court for an ME is treated the same way as any other refusals to comply with court orders.

A case of spoliation is evidence that has been destroyed or significantly altered. New York cases involving spoliation include the negligent and willful destruction of evidence. The courts developed criteria over time to determine whether evidence was spoliated. To seek sanctions for spoliation, the plaintiff must show that the other party was bound to protect the evidence, that the items were destroyed in an act of culpable behavior, and that the lost item is relevant to his claim.

A party can destroy inanimate evidence by applying the spoliation analysis. This has been a long-standing practice [such as a pipe containing asbestos, a chair, surveillance videos, a computer, email, and the like].

A person’s state is fundamentally different to inanimate evidence. Medical treatment including surgery is completely distinct from the destruction or alteration of tangible and documents which spoliation sanctions try to alleviate. It is against our beliefs in individual liberty and our control over our bodies to find out that someone has an obligation to keep their body in an injured condition so that the defendant can conduct ME.

Also, it should be pointed out that the defendant mischaracterized the role and nature of independent MEs in personal injuries litigation. This was presumably to portray plaintiff’s surgery and make it seem egregious. The legal enemies of the examinee often control the scope and conduct of such examinations, which “far from being autonomous in any normal sense of the term” are paid for. These examinations are not intended to be used for medical treatment. They can instead be used to challenge the claim of injury or to question the necessity for any treatment. An ME can be seen as one part of evidence in a personal injuries action.

Individual factors, like the advice of a physician and pain level, must determine whether a plaintiff should be allowed to choose when and how to proceed with medical treatment. 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….