Martinez v. Nelson, 24567/2018E

• Decision Date: 29 May 2019
• Docket Number: 24567/2018E
• Parties: Christy MARTINEZ, Plaintiff, v. Gilbert NELSON and DC&E Transport Corp., Defendants.
• Court: New York Supreme Court

64 Misc.3d 225
101 N.Y.S.3d 580

Christy MARTINEZ, Plaintiff,
v.
Gilbert NELSON and DC&E Transport Corp., Defendants.

24567/2018E

Supreme Court, Bronx County, New York.

Decided on May 29, 2019

101 N.Y.S.3d 581

Maria C. Zieher, Esq., Subin Associates, LLP, New York, NY, for plaintiff

Christian W. Hambleton, Esq., Callahan & Fusco, LLC, New York, NY, for defendants

John R. Higgitt, J.

64 Misc.3d 226

Defendants' motion raises an issue on which there is little decisional law in New York: whether spoliation sanctions may be imposed on a tort plaintiff who undergoes surgery prior to submitting to a CPLR 3121 "independent medical examination" ("IME")? For the reasons that follow, the court concludes that spoliation sanctions may be imposed on a plaintiff who fails to submit to a so-called IME before having surgery on a body part that the plaintiff claims was injured as a result of a defendant's allegedly tortious conduct. The court further concludes that defendants' motion is premature because discovery regarding information relevant and material to the spoliation issue has not been conducted, and neither defendants nor plaintiff have submitted medical evidence bearing on the issue.

On October 18, 2017, plaintiff was injured as a result of a motor vehicle accident involving a vehicle operated by defendant Nelson and owned by defendant DC & E Transport Corp. Approximately six months later, plaintiff commenced this action to recover damages for her alleged personal injuries. In her January 25, 2019 bill of particulars, plaintiff claimed that she suffered, among other things, disc herniations at C4-C5 and C6-C7, a disc bulge at C3-C4, and bilateral C6-C7 radiculopathy. The bill of particulars stated that plaintiff was given a "[r]ecommendation for [a]nterior [c]ervical [d]iscectomy and [f]usion, with instrumentation and [a]llograph at C6-C7 level."

By a January 29, 2019 letter to plaintiff's counsel, defendants' counsel acknowledged receipt of the bill of particulars and "demand[ed] that plaintiff appear for an independent medical examination prior to her [recommended] surgery." Defense counsel cautioned that

64 Misc.3d 227

"[s]hould you refuse to allow us to conduct an [IME] of [plaintiff] prior to any surgery, and [plaintiff] does in fact undergo a surgical procedure, we will find [plaintiff's] actions to be spoliation of evidence and seek all appropriate remedies. (See Mangione v. Jacobs , 37 Misc.3d 711, 950 N.Y.S.2d 457 (Sup. Ct., Queens County 2012)."

Defendants' counsel sent plaintiff's counsel another letter, this one dated March 5, 2019, that advised that defendants' counsel had scheduled an IME with an orthopedist for March 28, 2019. The letter provided the name of the orthopedist, the date and time of the appointment, the doctor's office address, and instructions for plaintiff to facilitate the examination. A March 8, 2019 letter from defendants' counsel to plaintiff's counsel notified the latter that defendants' counsel had scheduled an IME with a neurologist for plaintiff on April 10, 2019 with a specified physician at a specified time and location. Plaintiff did not attend either IME.

101 N.Y.S.3d 582

By a supplemental bill of particulars, dated March 8, 2019, plaintiff asserted that, on February 27, 2019, she underwent C4-C5 anterior cervical discectomy and fusion surgery. (As noted below, defendants argue that no emergency situation or medical urgency dictated that plaintiff have the surgery when she did. Plaintiff does not disagree.)Defendants seek the striking of the complaint or such other relief as the court deems appropriate on the ground that, by virtue of plaintiff's failure to submit to an IME prior to the surgical procedure, she spoliated important evidence. Defendants argue that plaintiff had a duty to preserve relevant evidence, including her "physical condition"; that she intentionally or negligently altered that evidence by having the surgery; and that by altering that evidence, plaintiff deprived defendants of the opportunity to conduct meaningful IMEs, significantly prejudicing their defense of the action. As they did in their January 29, 2019 letter, defendants emphasize the Supreme Court, Queens County decision in Mangione .

Plaintiff opposes defendants' motion and cross moves for sanctions against defendants under 22 NYCRR 130-1. Plaintiff contends that she did not spoliate relevant evidence: plaintiff's medical records (including radiology and other imaging records) are available to defendants, and the records provide any IME physician designated by defendants with all of the information necessary for the physician to render

64 Misc.3d 228

opinions as to the condition of plaintiff's cervical spine. Plaintiff also contends that defendants' January 29, 2019 letter demanding a pre-surgery IME did not constitute a proper demand for an IME under CPLR 3121 because the letter did not designate a physician or specify a date for an examination. Defendants' letters of March 5 and March 8 that did identify physicians and specify dates and times of the examinations were prepared and sent to plaintiff's counsel after plaintiff had surgery. Plaintiff stresses both that no court order required her to appear for an IME, and her surgery was approved by the Workers' Compensation Board.

Plaintiff seeks part 130-1 sanctions against defendants for making their spoliation motion, arguing that defendants' motion is completely without merit in law and cannot be supported by a reasonable argument for an extension or modification of existing law. In support of her opposition and cross motion, plaintiff submits various discovery responses she served on defendants, and a notice of decision of the New York State Workers' Compensation Board (filed with the agency on January 18, 2019) that, among other things, authorized plaintiff to have "anterior cervical discectomy and fusion [surgery]."

In reply, defendants dispute plaintiff's assertion that medical records will allow defendants' IME physicians to perform adequate evaluations of plaintiff's cervical spine. Also, defendants argue that the January 29, 2019 preservation letter placed plaintiff on clear notice to preserve the subject evidence (i.e., the condition of her cervical spine). Defendants also argue that, given the notice, the importance of the condition of plaintiff's cervical spine in this litigation and the non-emergency nature of the surgery, the court should find that plaintiff altered the subject evidence with a culpable state of mind.

A threshold question is manifested by this motion: is the condition of plaintiff's cervical spine evidence that was capable of being spoliated?

Spoliation occurs when a party negligently or intentionally alters, loses or destroys evidence (see Metlife Auto & Home v. Joe Basil Chevrolet, Inc. , 303 A.D.2d 30, 33-34, 753 N.Y.S.2d 272 [4th Dept. 2002],

101 N.Y.S.3d 583

affd 1 N.Y.3d 478, 775 N.Y.S.2d 754, 807 N.E.2d 865 [2004] ; see also Kirkland v. New York City Housing Auth. , 236 A.D.2d 170, 173, 666 N.Y.S.2d 609 [1st Dept. 1997] ). "Evidence" is "[s]omething (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact" (Black's Law Dictionary 595 [11th ed]; see Prince, Richardson on Evidence § 1-101(a) [Farrell 11th ed]

64 Misc.3d 229

["Evidence ‘includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved,’ " citing Dibble v. Dimick , 143 N.Y. 549, 554, 38 N.E. 724 [1894] ).

Here, the condition of plaintiff's cervical spine tends to prove or disprove the existence of several facts material to this litigation, including the extent to which (if any) plaintiff sustained injuries to her cervical spine as a result of the October 2017 accident, and the extent (if any) of plaintiff's damages. Relatedly, the condition of plaintiff's cervical spine tends to prove or disprove the existence of facts material to a physician's evaluation of plaintiff's claimed injuries. Moreover, at least one New York court has determined that spoliation sanctions may be imposed on a tort plaintiff who has surgery on a body part...