New York Appellate Court Prohibits Imposition of Spoliation Sanctions Upon a Plaintiff Who Failed to Appear for IME Before Undergoing Spinal Surgery

On December 7, 2021, New York’s Appellate Division, First Department found that a plaintiff who failed to appear for an independent medical examination (IME) and soon thereafter underwent surgical treatment was not subject to spoliation sanctions. Gilliam v. University Holdings, 2021 N.Y. Slip Op. 06798 (1st Dep’t 2021). The five-justice panel reversed the lower court’s imposition of sanctions for what the lower court found to be willful destruction of evidence. In so doing, the First Department has drastically diminished a personal injury defendant’s ability to obtain critical discovery regarding alleged injuries.

The plaintiff, Jekeya Gilliam, was allegedly injured when a piece of her bathroom ceiling fell and struck her on the head. She brought suit against the building owner, among others, for injuries including a bulging lumbar disc at L4-L5. At a preliminary conference on August 10, 2018, the lower court ordered the plaintiff to appear for an IME within 45 days of her deposition. Following a compliance conference on October 26, 2018, the court ordered the plaintiff to appear for an IME within 45 days of the defendants’ designation of an examining physician.

The plaintiff was deposed on January 7, 2019. In early February 2019, the defendant designated their examining physician and the IME date – March 6, 2019. The plaintiff failed to appear for the IME and underwent a lumbar discectomy on April 2 before appearing for an IME. The defendant served a second IME notice on April 3 for May 15. The plaintiff filed a supplemental bill of particulars on April 9, in which she disclosed the discectomy, and appeared for the IME on May 15. Shortly thereafter, the defendant moved to dismiss the complaint or, in the alternative, for sanctions for the plaintiff’s willful spoliation of critical evidence. The lower court denied the defendant’s motion to dismiss but sanctioned the plaintiff by precluding her from offering any evidence of an injury or surgery to her L4-L5 disc.

In reversing the lower court’s order, the First Department held that “the condition of one’s body is not the type of evidence that is subject to a spoliation analysis.” Instead, a failure to appear for an IME “should be analyzed the same as other failures to comply with court-ordered discovery.” In support of this holding, the First Department reasoned that spoliation analysis should be applied to destruction of inanimate evidence only, that “the state of one’s body is fundamentally different” from such evidence, and that surgery is “entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate.”

The First Department also cast aspersions upon the role of the IME in personal injury litigation. Throughout the opinion, the court referred to such exams as “‘independent’ MEs.” It also noted that “[s]uch examinations, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all … Viewed in this context, an ME is simply one piece of evidence in a personal injury action.”

The court also reasoned that the defendant was not prejudiced by the plaintiff’s surgery because there was other evidence upon which the defendant could rely, including the plaintiff’s pre-surgical and post-surgical medical records. Of course, the court did not explain why such records, which are often prepared by doctors identified and retained by plaintiff’s attorneys, and increasingly funded by litigation funding outfits, are any more reliable than the findings of an IME.

Although the court left the door open for lower courts to treat the failure to appear for an IME like any other failure to abide by a court order, defendants are now left without sufficient recourse should a plaintiff undergo any surgical procedure before the defendants have a chance to examine the plaintiff.