In recent years, several motion courts have entertained the idea that a plaintiff in a personal injury case may spoliate evidence by receiving treatment for an injury before the defendant's physical examination is conducted. Treating a person's medical condition at a given point in time as "evidence" that can be culpably "destroyed" by medical care would have wide-ranging implications. In its recent decision in Gilliam v. Uni Holdings, 201 A.D.3d 83 (1st Dept. 2021), the First Department conclusively rejected this line of cases and held that "the condition of one's body is not the type of evidence that is subject to a spoliation analysis." In this column, we will discuss the winding road of decisions that led to Gilliam and the significance of Gilliam itself.

The doctrine of spoliation relates to the loss or destruction of material evidence. "A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense." Pegasus Aviation I v. Varig Logistica S.A., 26 N.Y.3d 543, 547 (2015) (internal quotation marks omitted). Spoliation sanctions "are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as fatal to the other party's ability to present a defense." Squitieri v City of New York, 248 A.D.2d 201, 203 (1st Dept. 1998). A party's obligation to preserve evidence, at least under traditional spoliation rules, can predate the commencement of a lawsuit, even without a formal demand. See, e.g., Erdely v. Access Direct Sys., 45 A.D.3d 724 (2d Dept. 2007).

Traditionally, the spoliation doctrine has been understood to apply to physical or electronic evidence that should have been retained but was not. Starting in 2012, New York courts began, in fits and starts, to consider the idea that the condition of a personal injury plaintiff's body at a particular point in time was itself "evidence" that could be spoliated by the receipt of medical treatment. The possibility was first raised in Mangione v. Jacobs, 37 Misc.3d 711 (N.Y. Sup. Queens County 2012). In that case, the plaintiff, who was injured in a motor vehicle accident, failed to appear on multiple occasions for defense medical examinations. Her counsel then filed a note of issue, inaccurately affirming that the physicals had been completed. The defendant requested a conference, as a result of which she was directed to appear for her examination by or before a date certain. She again failed to attend her examination and then proceeded to have spinal surgery before she was examined by the defendants' doctor. The Supreme Court, Queens County (Markey, J.), held that the plaintiff's failure to appear for her examinations, despite three court orders, represented spoliation of evidence. It found the spinal surgery was "knowingly scheduled by the plaintiff and her counsel to frustrate the court-ordered IME's … and that the aforementioned operation constituted a spoliation of evidence." Id. at 725. It also concluded that defendants suffered irreparable prejudice because her surgery "has eviscerated the means of defense doctors and lawyers of tracing the causal connection of Mangione's ailments to the most recent accident." Id. at 731. It held that "dismissal is the appropriate sanction." Id.