To the "Victim" Go the Spoils: The Evolution and Operation of Spoliation of Evidence Law in Florida Product Liability Cases.

• Author: Blackwell, Donald A.

Most seasoned product liability trial lawyers will agree that, while testimonial evidence plays a key role in corroborating that which is revealed by physical evidence, it is the physical evidence itself that, at the end of the day, often serves as the most objective and compelling indicator of the underlying facts in a case. And, at least in the product liability arena, no piece of physical evidence carries more weight or is more indispensable than the product at issue and its related component parts. As one court astutely observed: "In today's product liability trial, we frequently rely heavily on Maxwellian, often hyper-technical expert opinions, [where] small, seemingly insignificant items, like simple bolts, can become large factors in the outcome of the trial." (1)

Thus, it is not surprising that Florida courts repeatedly have held that where such physical evidence is lost, misplaced, destroyed, or otherwise made unavailable so as to fundamentally prejudice a nonspoliator's ability to prosecute or defend against a claim, a trial court may impose a variety of sanctions, including, when appropriate, the dismissal of a plaintiff's complaint or the striking of a defendant's affirmative defenses. Moreover, in certain circumstances, spoliation also can give rise to a separate cause of action against a nonparty spoliator and result in an award of significant damages. In either case, it is imperative that attorneys for parties and nonparties on all sides of a spoliation battle have a clear and current understanding of available rights and remedies, so that they can best use them to their clients' advantage.

A Tort Is Born in California

To fully understand spoliation law in Florida, it is necessary to first understand the California cases that essentially gave birth to it. As judicially created torts go, spoliation of evidence is a veritable toddler, tracing its roots back only to the mid-1980s. In fact, courts and commentators on the subject generally agree that the court in Williams v. California, 34 Cal. 3d 18 (1983), was the first in the United States to recognize the tort. Williams arose out of an automobile accident in which an unsuspecting passenger was struck in the face by a piece of brake drum that broke off a passing truck and went through the windshield. The plaintiff filed suit against the state of California alleging that the investigating highway patrol officer virtually destroyed any opportunity she might otherwise have had to obtain compensation for her severe injuries by, among other things, failing to identify other witnesses at the scene and failing to identify and pursue the owner or operator of the truck whose brake drum broke off. (2) The trial court granted the state's motion for judgment on the pleadings and the plaintiff appealed. (3)

The Williams court defined the issue before it as follows: "[W]hether the mere fact that a highway patrolman comes to the aid of an injured or stranded motorist creates an affirmative duty to secure information or preserve evidence for civil litigation between the motorist and third parties." (4) The court answered that question in the negative and held that "stopping to aid a motorist does not, in itself, create a special relationship which would give rise to such a duty." (5) However, in a statement that would prove to have far-reaching implications in the world of torts across the country, the Williams court added that "it would be presumptuous for us to assume that plaintiff can never state a cause of action." (6) The court, inferring that plaintiff could state a cause of action if she alleged "the requisite factors to a finding of special relationship," namely that she detrimentally relied on the officers' conduct and statements, which "induced a false sense of security" and "worsened her position," concluded that the plaintiff should be afforded leave to amend her complaint. (7)

Less than a year after Williams, the court in Smith v. Superior Court, 151 Cal. App. 3d 491 (1984), disapproved of by Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1, 954 P.2d 511 (1998), faced a similar claim brought by yet another California motorist who, remarkably, also was injured when a portion of a passing vehicle (i.e., a rear wheel and tire assembly) broke off and came through the windshield of her car. The vehicle was later towed to a dealership who previously had customized the van with new wheels. (8) The dealer, in turn, agreed with counsel for the injured motorist to preserve certain parts of the van for further investigation. (9) However, it later "destroyed, lost or transferred" the parts, making it impossible for the plaintiff's experts to inspect and test the parts to determine what caused the wheel assembly to become dislodged. (10) Plaintiff responded by suing the dealer for intentional and negligent spoliation of evidence, but the trial court dismissed the complaint, on the grounds that there was no such intentional tort. (11)

Although the decision was disapproved of years later by Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1, 954 P.2d 511 (1998), the court of appeal, citing Williams, reversed. The Smith court analogized plaintiff's claim to one for "intentional interference with prospective economic advantage" and concluded that 1) conduct like that engaged in by the dealer needed to be deterred; 2) the prospect of the dealer being subject to possible criminal liability for obstruction of justice was no substitute for civil monetary damages; 3) plaintiff's prospective civil claims against the owner of the other vehicle and/or the dealer who installed the wheels "are entitled to legal protection ... even though their damages cannot be stated with certainty"; and 4) plaintiff's allegation that the dealer's spoliation of evidence had "significantly prejudiced" her case was sufficient to survive a motion to dismiss. (12) Notably, the dealer later found the parts!

The Tort and Its Offspring Migrate to Florida

Based in large part on Williams and Smith, the first Florida appellate court to recognize a claim for spoliation of evidence was Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984), disapproved of by Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005). In that case, the spouse of a man who had died during heart surgery filed a medical malpractice action against the assisting anesthesiologist and the hospital where the surgery was performed. In her complaint, which included two counts, plaintiff claimed 1) that both defendants were negligent per se in failing to preserve and produce the anesthesiology and other records necessary to establish her claim; and 2) that, in doing so, the hospital had intentionally interfered with her right of action. (13) The trial court dismissed the latter count for failure to state a cause of action and, based on her inability to prove the underlying medical negligence claims without the operative records, entered summary judgment in favor of the defendants. (14) Plaintiff then sought to amend her complaint to allege that the hospital's "negligent loss of the records caused her to lose 'a medical negligence lawsuit....'" (15) Contemporaneous therewith, plaintiff filed a separate action against the hospital predicated on the same allegations. (16) The trial court in the first action denied her motion for leave to amend and, in the second, granted the defendant's motion for judgment on the pleadings based on principles of resjudicata. (17)

The plaintiff appealed, arguing that she had or should have the right to pursue an action against the hospital for the loss of records that she alleged caused her to lose her medical malpractice action and the Florida Third District Court of Appeal agreed. (18) The court began its analysis by noting that, while the tort alleged was "not a familiar one" in Florida jurisprudence, courts in California recently had "recognized the existence of causes of action for negligent failure to preserve evidence for civil litigation" and for "intentional interference with prospective civil action by spoliation of evidence." (19) Moreover, the court noted that, while Williams and Smith involved parties who had "no connection to the lost prospective [tort actions]," there was no reason not to extend the tort to a party defendant who "stands to benefit by the fact that the prospect of successful litigation against it has disappeared with the crucial evidence." (20) The Bondu court further emphasized, however, that such an action would not be warranted unless it is "'clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant,'" that is, there is a duty owed to the plaintiff by the defendant that the law recognizes. (21) The court then went on to note that, because the "hospital's duty to make and maintain medical records [was] imposed by administrative regulations promulgated by Health and Rehabilitation Services," plaintiff was able to satisfy that indispensable element and would be permitted to pursue her negligent spoliation action. (22)

That same day, the same court took a slightly different approach to resolving a claim of first-party spoliation in Valcin v. Public Health Trust, 473 So. 2d 1297 (Fla. 3d DCA 1984), approved in part, quashed in part, 507 So. 2d 596 (Fla. 1987). In Valcin, a patient who suffered a ruptured tubal pregnancy a year-and-a-half after hospital staff had performed a tubal ligation on her brought a malpractice action (with her husband) against the hospital. (23) During discovery, it became apparent that plaintiffs would not be able to meet their burden of establishing through expert testimony that doctors had negligently performed the sterilization procedure, due, in large part, to the fact that the hospital had either lost or destroyed the records of the surgical procedure, a needed basis for their expert's testimony. (24) The trial court granted summary final judgment in favor of the...