There are numerous medical/diagnostic facilities throughout New York City that have their practices called into question. Some go out of business and are never to be heard from again, making it difficult for the defendant to obtain the actual films. The lack of available films can cause gaps in an independent expert’s report that exposes the expert up to cross examination. The use of a plaintiff’s treating physician or expert radiologist’s review of films that no longer exist can paint a very one-sided picture of the plaintiff’s injuries for the fact finder. What’s a defendant to do?
Recently, the New York State Supreme Court, Appellate Division Second Department, considered whether preclusion sanctions for spoliation were proper against a plaintiff. In Eremia v. Scparta, the Second Department modified a trial court’s order that granted defendants’ “spoliation” motion to preclude plaintiff from introducing MRI films and related reports of those MRI films. While the Appellate Division reversed the lower court and gave plaintiff a final opportunity to produce the films and records, the decision reveals what efforts a defendant needs to take to be successful under a theory of spoliation.
The facts indicate that the Plaintiff underwent MRI testing a facility that had since closed. The defendants learned this when the authorization to obtain the records set to the facility’s last known address was returned as undeliverable. Defendants could not obtain the films for the purposes of conducting an independent radiological review and therefore, moved to preclude the records of this facility (CPLR 3126), and in the alternative to compel the records (CPLR 3124).
“Under the common law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence.” The Second Department found that the defendants failed to demonstrate that the plaintiff or anyone under her control lost or destroyed the MRI films and records. In short, the defendants failed to meet their burden in requesting the sanction and the lower court’s order was modified to allow the plaintiff an extension of time to locate and produce the films and records or an affidavit attesting to the fact that the MRI films or copies of the films “were not in their possession or control or the possession or control of their counsel, treating physicians, experts or anyone under their control.”
The decision informs that such records are “key evidence” for the purposes of considering the sanction. Moreover, the holding instructs that counsel, treating physicians and experts are deemed to be under plaintiff’s control for the purposes of spoliation. Defendants faced with this scenario should increase their investigative efforts to determine whether an alternate records custodian exists. Defendant could use other discovery devices such as the deposition and notice to admit to determine the existence and whereabouts of the films and whether anyone under plaintiff’s control negligently lost or intentionally destroyed the evidence. Records procurement is an important aspect of all personal injury cases and defendants cannot expect to win a spoliation motion without a complete investigation and use of available resources in order to meet the burden to allow the court to grant the sanction.
Thanks to Vin Terrasi for his contribution to this post. If you have any questions, please email Paul at