DePuy, Inc. v. Eckes, 82-1850
| Citation | 427 So.2d 306 |
| Decision Date | 22 February 1983 |
| Docket Number | No. 82-1850,82-1850 |
| Court | Florida District Court of Appeals |
| Parties | DePUY, INC. and St. Paul Fire & Marine Insurance Company, Appellants, v. Ruby V. ECKES and John Eckes, her husband, Appellees. |
Carey, Dwyer, Cole, Eckhart, Mason & Spring and Michael Spring, Miami, for appellants.
Horton, Perse & Ginsberg and Arnold Ginsberg; Hawkesworth & Schmick, Miami, for appellees.
Before HUBBART, NESBITT and BASKIN, JJ.
The appellants seek review of an order striking their defenses and entering a default as to liability. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).
In 1971, Mrs. Eckes underwent an operation to have a hip prosthesis implanted. In 1973, she allegedly sustained an injury caused by the breakage of the surgical device. The Eckes sent the broken pieces to an expert for testing; however, for some reason, one test, an electron microscopic examination, was not done. Subsequently, the Eckes filed suit against several parties, including the appellants, DePuy, Inc., who distributed the prosthesis, and their insurer, St. Paul Fire and Marine Insurance Co. The complaint was premised upon the theories of negligence, strict liability, and breach of implied warranty. The appellants answered the complaint admitting having sold the device, denying all other allegations, and raising several affirmative defenses.
Upon an agreed order not to destroy the fracture site, the plaintiffs turned the prosthesis over to the appellants. After extensive testing by appellants' expert, including an electron microscopic examination (the test not performed by the Eckes' expert), the pieces were mailed back to appellants' counsel, but the package containing the fracture site was missing. The plaintiffs filed a motion for sanctions supported by an affidavit of another of plaintiffs' experts. At an evidentiary hearing, the expert testified that he could not render an opinion without actual examination of the fracture situs. The trial court concluded that the plaintiffs would be unable to go forward in establishing liability without the critical piece of physical evidence. It therefore entered a default in favor of the plaintiffs on liability.
Florida Rule of Civil Procedure 1.380(b)(2)(C) authorizes the imposition of sanctions for failure to comply with discovery orders. The decisions under this rule clearly establish that the sanctions should be commensurate with the offense and the ultimate sanction should be visited upon a party only under exceptional circumstances. Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980); Travelers Insurance Co. v....
To continue reading
Request your trial
-
Valcin v. Public Health Trust of Dade County
...noncompliance with discovery order); Agencias Maritimas Nicaraguenses v. Usatorres, 435 So.2d 247 (Fla. 3d DCA 1983); DePuy, Inc. v. Eckes, 427 So.2d 306 (Fla. 3d DCA 1983). C. There is little question that Valcin's ability to prove her negligence claim against the hospital has been substan......
-
Hamann v. Ridge Tool Co.
...experts to testify with respect to the chemical analysis and the photographs of the two lost pieces.5 See also DePuy, Inc. v. Eckes, 427 So.2d 306, 307-308 (Fla.App.1983) (the defendant accidently lost a piece of a hip prosthesis, which allegedly broke, after the plaintiffs sent it to the d......
-
McGillis v. Dep't of Econ. Opportunity
... ... Inc. v. Dep't of Labor & Emp't , 763 So.2d 514, 517 (Fla. 5th DCA 2000). By ... ...
-
Rockwell Intern. Corp. v. Menzies, 88-3091
...critical physical evidence, and when the plaintiff has demonstrated an inability to proceed without such evidence. DePuy, Inc. v. Eckes, 427 So.2d 306 (Fla. 3d DCA 1983). In so ruling, this court concluded that whether the defendant destroyed the evidence in "bad faith or accidentally is ir......
-
Review of orders dismissing or defaulting for discovery violations: the evolution of the abuse of discretion standard.
...706, 707 (Fla. 3d D.C.A. 1998); Sponco Manufacturing, Inc. v. Alcover, 656 So. 2d 629, 631 (Fla. 3d D.C.A. 1995); DePuy, Inc. v. Eckes, 427 So. 2d 306, 308 (Fla. 3d D.C.A.1983). (3) See, e.g., Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 347-50 (Fla. 2005) (Wells, J., specially concurr......
-
Deconstructing damages for destruction of evidence: Martino eradicates the first-party tort of spoliation of evidence.
...2d 197, 200-01 (Fla. 1st D.C.A. 1994); Rockwell Int'l Corp. v. Menzies, 561 So. 2d 677, 678 (Fla. 3d D.C.A. 1990); DePuy, Inc. v. Eckes, 427 So. 2d 306, 308 (Fla. 3d D.C.A. (22) See Sterbenz v. Attina, 205 F. Supp. 2d 65, 74 (E.D.N.Y. 2002) ("Whatever else it may mean, the 'inherent power' ......
-
Spoliated evidence: better than the real thing?
...imposition of an evidentiary presumption, and even the dismissal of a claim.[1] The Third District's decision in DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983), is generally credited as the first Florida state court case to impose sanctions for spoliation of evidence. In DePuy, the......
-
Spoliation of evidence: a double-edged sword.
...Company v. Royal Insurance Company, 559 So. 2d 102 (Fla. 4th D.C.A. 1990) (striking of pleadings unwarranted); Depuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d D.C.A. 1983) (striking of pleadings warranted); Valcin v. Public Health Trust of Dade County, 473 So. 2d 1297 (Fla. 3d D.C.A. 1984), m......