St. Mary's Hosp., Inc. v. Brinson, 94-2130

• Decision Date: 04 December 1996
• Docket Number: No. 94-2130,94-2130
• Parties: 21 Fla. L. Weekly D2560 ST. MARY'S HOSPITAL, INC., Appellant, v. Alonzo BRINSON and Willa Brinson, natural parents and guardians of the Estate of Alonzette Brinson, deceased, and Alonzo Brinson and Willa Brinson, individually, Appellees.
• Court: Florida District Court of Appeals

Page 33

685 So.2d 33

21 Fla. L. Weekly D2560

ST. MARY'S HOSPITAL, INC., Appellant, v. Alonzo BRINSON and Willa Brinson, natural parents and guardians of the Estate of Alonzette Brinson, deceased, and Alonzo Brinson and Willa Brinson, individually, Appellees.

No. 94-2130.

District Court of Appeal of Florida Fourth District.

Dec. 4, 1996.

Rehearing, Certification, and Rehearing En Banc Denied Jan. 22, 1997.

Henning, Patti Englander, Associate Judge, filed dissenting opinion.

Christopher L. Kurzner, Arthur J. England, Jr., Charles M. Auslander, and Marlene K. Silverman of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, and Jeffrey C. Fulford and Michael D. Burt of Bobo, Spicer, Ciotoli, Fulford, Bocchino, DeBevoise & LaClainche, West Palm Beach, for appellant.

Steven E. Stark of Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, for Amicus Curiae-Florida Defense Lawyers Association.

Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Montgomery & Larmoyeux, West Palm Beach, for appellees.

ON MOTION FOR REHEARING

GUNTHER, Chief Judge.

We withdraw our earlier opinion filed May 22, 1996, and substitute the following opinion:

Appellant, St. Mary's Hospital, Inc. (St. Mary's), seeks review of an adverse $8,325,000 final judgment and raises numerous issues on appeal. We affirm.

On August 14, 1992, Alonzette Brinson, a nineteen-month-old infant, was admitted to St. Mary's to undergo an out-patient surgical procedure to correct a drooping eyelid. The surgery was performed under general anesthesia with Dr. John Cooney administering the anesthesia through equipment owned and provided by St. Mary's. Apparently, during surgery, Alonzette received an increased amount of anesthesia and eventually suffered cardiac arrest. Alonzette was placed on a life support respirator and, ten days later, Alonzette was pronounced dead.

As a result of the foregoing, the Brinsons, individually and as the natural parents and guardians of Alonzette's estate, brought a negligence action against St. Mary's, Dr. Cooney, and Dr. Cooney's professional association. Eventually, the Brinsons settled with Dr. Cooney and his professional association, thereby leaving only a claim against St. Mary's for its own negligence. Apparently, however, brief discovery revealed that sometime after Alonzette's death, the halothane vaporizer used in the anesthesia machine during Alonzette's surgery was disassembled by its manufacturer. The Brinsons then filed a second complaint against St. Mary's, charging it with the negligent and/or intentional destruction of the vaporizer. Basically, the Brinsons alleged that because St. Mary's knew of the potential civil claim against the vaporizer's manufacturer, it had a duty to preserve the vaporizer, and its failure to do so impaired the Brinsons' ability to prove a cause of action against the manufacturer and other responsible agents of the vaporizer unit.

Ultimately, the trial court consolidated the two cases over St. Mary's objection. St. Mary's claimed that consolidation placed it in the "untenable position of being forced to choose between foregoing the statutorily created privilege for risk management material (section 395.0197(4), Florida Statutes (1993)) in the underlying negligence action, or being prohibited from using information necessary to defend against the allegation of negligent spoliation of evidence." Nevertheless, St. Mary's repeated motion to bifurcate was denied and the cause proceeded to trial, at which St. Mary's elected to waive the risk management privilege in order to better defend the spoliation action.

During the first week of trial, the Brinsons deposed St. Mary's assistant risk manager. At the deposition, the risk manager stated that she relied in part on reports prepared by the Affiliated Risk Control Agency (ARCA reports) in investigating Alonzette's death. Although requested, St. Mary's refused to produce these reports, claiming they were protected by the attorney/client privilege.

The Brinsons subsequently requested the trial court to order St. Mary's to produce the ARCA reports, claiming they were discoverable because St. Mary's waived its risk management privilege. Counsel for St. Mary's again claimed the attorney/client privilege and informed the trial court that he was instructed by "the powers that be" not to produce the reports. Once the trial court forewarned St. Mary's that it might strike its defenses if it willfully refused to produce the reports, the reports were relinquished for an in-camera inspection. The trial court inspected the ARCA reports, excepted certain portions under the attorney/client privilege, and ordered St. Mary's to produce the remainder. St. Mary's again refused, even after the trial court warned that it was "probably" going to strike its entire defense. After brief argument wherein St. Mary's refused anew to produce the documents, the trial court struck St. Mary's defenses and entered a verdict in favor of the Brinsons on the spoliation claim.

During the damages phase of the trial, St. Mary's was precluded from arguing apportionment of fault because it was a stricken affirmative defense. Following closing arguments and deliberations, the jury returned a verdict in favor of the Brinsons for $9 million. After setting off the $675,000 paid by Dr. Cooney pursuant to the settlement, the trial court entered a written final judgment in favor of the Brinsons for $8,325,000.

Initially, we find that the trial court did not err in allowing the Brinsons to proceed on an action for the spoliation of evidence. The Third District has explicitly and repeatedly recognized that a cause of action exists in Florida for the spoliation of evidence. E.g., Sponco Mfg., Inc. v. Alcover, 656 So.2d 629 (Fla. 3d DCA 1995), rev. dismissed, 679 So.2d 771 (Fla.1996); Continental Ins. Co. v. Herman, 576 So.2d 313 (Fla. 3d DCA 1990), rev. denied, 598 So.2d 76 (Fla.1991); Miller v. Allstate Ins. Co., 573 So.2d 24 (Fla. 3d DCA 1990), rev. denied, 581 So.2d 1307 (Fla.1991); Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984), rev. denied sub nom. Cedars of Lebanon Hosp. Care Ctr., Inc. v. Bondu, 484 So.2d 7 (Fla.1986). As explained by our sister court, "a prospective civil action ... is a valuable 'probable expectancy' that the court must protect from interference." Miller, 573 So.2d at 26 (quoting Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984)). Additionally, this Court has cited the Herman opinion and implicitly held that the negligent destruction of evidence is a valid cause of action. Brown v. City of Delray Beach, 652 So.2d 1150 (Fla. 4th DCA 1995). Accordingly, we now expressly recognize a cause of action for the spoliation of evidence and adopt the Third District's characterization of this tort's necessary elements. See Herman, 576 So.2d at 315.

We also note that the trial court did not abuse its discretion in consolidating the spoliation and negligence actions. There is little reason to wait for final judgment in the underlying lawsuit before bringing an action for the spoliation of evidence. Miller, 573 So.2d at 28 n. 7. Moreover, consolidation does not merge the suits into a single cause; rather, each suit maintains its independent status with...