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NY Judge Does Own Spoliation Research, Axes Tort Case Due to Plaintiff’s Elective Spinal Surgery

Posted Aug 1, 2012 1:52 PM CDT
By Martha Neil

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Deciding an issue of first impression under New York law, a state-court judge has dismissed a plaintiff's personal injury case because she underwent elective spinal surgery instead of appearing for court-ordered independent medical exams.

Lacking any on-point spoliation case citations from the parties, Justice Charles J. Markey said in a Tuesday opinion that the court conducted its own research seeking similar factual situations addressed by another court anywhere in the country. Agreeing with the reasoning, analysis and holding of a 2001 decision in Delaware Superior Court, he followed a similar approach by concluding that the plaintiff in his Queens County Supreme Court case, Susanna Mangione, had destroyed critical evidence for the defense by having surgery.

"No reasonable person would deprive a plaintiff of a life-saving surgery or any operation that would curb intense pain and alleviate injury," wrote Markey. "Plaintiff has not demonstrated anything or proffered any evidence on this issue. Even assuming arguendo that plaintiff needed such vital or life-saving surgery immediately and that defense counsel was unreasonably withholding its consent, the plaintiff's counsel should have arranged with defense counsel for an immediate telephone conference" with an appropriate judge or "moved for the surgery by an order to show cause. Plaintiff undertook neither of these reasonable measures. Plaintiff's counsel was well-aware that, in the absence of a compelling reason for immediate surgery, the Court would have required Mangione to appear at the IMEs before any surgery."

Mangione's case was complicated, the opinion notes, by the fact that she alleged an exacerbation of previous injuries that were also the subject of a pending state-court lawsuit. Hence, it was particularly important to the defendants in the suit the judge decided Tuesday, which involved a subsequent accident, to be able to get a baseline on the plaintiff's condition prior to remedial spinal surgery.

A post on the Jonathan Turley blog links to a copy of Markey's opinion.

The Delaware case that the judge found persuasive is Clark v. E.I. DuPont de Nemours and Co., No. 97C-12-048-PLA, 2001 WL 1482831.

Additional coverage:

Reuters: "Spinal surgery sinks personal injury suit"

Updated Aug. 2 to link to Reuters article.

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