DECISION & ORDER Defendants’ motion raises an issue on which there is little decisional law in New York: whether spoliation sanctions may be imposed on a tort plaintiff who undergoes surgery prior to submitting to a CPLR 3121 “independent medical examination” (“IME”)? For the reasons that follow, the court concludes that spoliation sanctions may be imposed on a plaintiff who fails to submit to a so-called IME before having surgery on a body part that the plaintiff claims was injured as a result of a defendant’s allegedly tortious conduct. The court further concludes that defendants’ motion is premature because discovery regarding information relevant and material to the spoliation issue has not been conducted, and neither defendants nor plaintiff have submitted medical evidence bearing on the issue. On October 18, 2017, plaintiff was injured as a result of a motor vehicle accident involving a vehicle operated by defendant Nelson and owned by defendant DC&E Transport Corp. Approximately six months later, plaintiff commenced this action to recover damages for her alleged personal injuries. In her January 25, 2019 bill of particulars, plaintiff claimed that she suffered, among other things, disc herniations at C4-C5 and C6-C7, a disc bulge at C3-C4, and bilateral C6-C7 radiculopathy. The bill of particulars stated that plaintiff was given a “[r]ecommendation for [a]nterior [c]ervical [d]iscectomy and [f]usion, with instrumentation and [a]llograph at C6-C7 level.” By a January 29, 2019 letter to plaintiff’s counsel, defendants’ counsel acknowledged receipt of the bill of particulars and “demand[ed] that plaintiff appear for an independent medical examination prior to her [recommended] surgery.” Defense counsel cautioned that “[s]hould you refuse to allow us to conduct an [IME] of [plaintiff] prior to any surgery, and [plaintiff] does in fact undergo a surgical procedure, we will find [plaintiff's] actions to be spoliation of evidence and seek all appropriate remedies. (See Mangione v. Jacobs, 37 Misc 3d 711 (Sup Ct, Queens County 2012).” Defendants’ counsel sent plaintiff’s counsel another letter, this one dated March 5, 2019, that advised that defendants’ counsel had scheduled an IME with an orthopedist for March 28, 2019. The letter provided the name of the orthopedist, the date and time of the appointment, the doctor’s office address, and instructions for plaintiff to facilitate the examination. A March 8, 2019 letter from defendants’ counsel to plaintiff’s counsel notified the latter that defendants’ counsel had scheduled an IME with a neurologist for plaintiff on April 10, 2019 with a specified physician at a specified time and location. Plaintiff did not attend either IME. By a supplemental bill of particulars, dated March 8, 2019, plaintiff asserted that, on February 27, 2019, she underwent C4-C5 anterior cervical discectomy and fusion surgery. (As noted below, defendants argue that no emergency situation or medical urgency dictated that plaintiff have the surgery when she did. Plaintiff does not disagree.) Defendants seek the striking of the complaint or such other relief as the court deems appropriate on the ground that, by virtue of plaintiff’s failure to submit to an IME prior to the surgical procedure, she spoliated important evidence. Defendants argue that plaintiff had a duty to preserve relevant evidence, including her “physical condition”; that she intentionally or negligently altered that evidence by having the surgery; and that by altering that evidence, plaintiff deprived defendants of the opportunity to conduct meaningful IMEs, significantly prejudicing their defense of the action. As they did in their January 29, 2019 letter, defendants emphasize the Supreme Court, Queens County decision in Mangione. Plaintiff opposes defendants’ motion and cross moves for sanctions against defendants under 22 NYCRR 130-1. Plaintiff contends that she did not spoliate relevant evidence: plaintiff’s medical records (including radiology and other imaging records) are available to defendants, and the records provide any IME physician designated by defendants with all of the information necessary for the physician to render opinions as to the condition of plaintiff’s cervical spine. Plaintiff also contends that defendants’ January 29, 2019 letter demanding a pre-surgery IME did not constitute a proper demand for an IME under CPLR 3121 because the letter did not designate a physician or specify a date for an examination. Defendants’ letters of March 5 and March 8 that did identify physicians and specify dates and times of the examinations were prepared and sent to plaintiff’s counsel after plaintiff had surgery. Plaintiff stresses both that no court order required her to appear for an IME, and her surgery was approved by the Workers’ Compensation Board. Plaintiff seeks part 130-1 sanctions against defendants for making their spoliation motion, arguing that defendants’ motion is completely without merit in law and cannot be supported by a reasonable argument for an extension or modification of existing law. In support of her opposition and cross motion, plaintiff submits various discovery responses she served on defendants, and a notice of decision of the New York State Workers’ Compensation Board (filed with the agency on January 18, 2019) that, among other things, authorized plaintiff to have “anterior cervical discectomy and fusion [surgery].” In reply, defendants dispute plaintiff’s assertion that medical records will allow defendants’ IME physicians to perform adequate evaluations of plaintiff’s cervical spine. Also, defendants argue that the January 29, 2019 preservation letter placed plaintiff on clear notice to preserve the subject evidence (i.e., the condition of her cervical spine). Defendants also argue that, given the notice, the importance of the condition of plaintiff’s cervical spine in this litigation and the non-emergency nature of the surgery, the court should find that plaintiff altered the subject evidence with a culpable state of mind. A threshold question is manifested by this motion: is the condition of plaintiff’s cervical spine evidence that was capable of being spoliated? Spoliation occurs when a party negligently or intentionally alters, loses or destroys evidence (see Metlife Auto & Home v. Joe Basil Chevrolet, Inc., 303 AD2d 30, 33-34 [4th Dept 2002], affd 1 NY3d 478 [2004]; see also Kirkland v. New York City Housing Auth., 236 AD2d 170, 173 [1st Dept 1997]). “Evidence” is “[s]omething (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact” (Black’s Law Dictionary 595 [11th ed]; see Prince, Richardson on Evidence §1-101(a) [Farrell 11th ed] ["Evidence 'includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved,'" citing Dibble v. Dimick, 143 NY 549, 554 [1894]). Here, the condition of plaintiff’s cervical spine tends to prove or disprove the existence of several facts material to this litigation, including the extent to which (if any) plaintiff sustained injuries to her cervical spine as a result of the October 2017 accident, and the extent (if any) of plaintiff’s damages. Relatedly, the condition of plaintiff’s cervical spine tends to prove or disprove the existence of facts material to a physician’s evaluation of plaintiff’s claimed injuries. Moreover, at least one New York court has determined that spoliation sanctions may be imposed on a tort plaintiff who has surgery on a body part that is in issue in litigation before the defendant, who has demanded an IME of plaintiff, has an opportunity to conduct it (see Mangione v. Jacobs, supra, affd 121 AD3d 953 [2d Dept 2014]).1 Therefore, the condition of plaintiff’s cervical spine was evidence that was capable of being spoliated. That evidence was altered, lost or destroyed does not, standing alone, permit a court to impose spoliation sanctions. Rather, a party seeking spoliation sanctions must show that (1) the party having control over the evidence had an obligation to preserve it at the time of its alteration, loss or destruction; (2) the evidence was altered, lost or destroyed with a “culpable state of mind,” which includes ordinary negligence; and (3) the altered, lost or destroyed evidence was relevant to the innocent party’s claim or defense (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., supra; VOOM HD Holdings LLC v. EchoStar Satellite LLC, 93 AD3d 33, 45 [1st Dept 2012]).2 Regarding the first element, defendants established that plaintiff had an obligation to preserve the condition of her cervical spine at the time of its alteration. By virtue of the January 29, 2019 preservation letter, which was served on plaintiff approximately one month prior to her unannounced surgery, plaintiff was on notice that the pre-surgery condition of her cervical spine might be relevant and material in the litigation (see In re New York City Asbestos Litigation, 157 AD3d 564 [1st Dept 2018]; Maiorano v. JPMorgan Chase & Co., 124 AD3d 536 [1st Dept 2015]; Malouf v. Equinox Holdings, Inc., 113 AD3d 422 [1st Dept 2014]; see also MetLife Auto & Home v. Joe Basil Chevrolet, Inc., 1 NY3d at 484; cf Elmaleh v. Vroom, 160 AD3d 557 [1st Dept 2018]). Given the content of the preservation letter, complete with its reference to Mangione, defendants alerted plaintiff, in no uncertain terms, that the pre-surgery condition of her cervical spine was important (at least to defendants) in the pending action. Defendants also established, to some degree, the second element: that plaintiff altered the subject evidence with a “culpable state of mind” (see Dzidowska v. Related Companies, LP, 148 AD3d 480 [1st Dept 2017] [spoliators' culpable state of mind was evidenced by their failure to comply with request to preserve spoliated evidence]). Defendants demonstrated that, at the least, plaintiff was guilty of ordinary negligence (which is sufficient to satisfy the culpable-state-of-mind element) in having the February 27, 2019 C4-C5 anterior cervical discectomy and fusion surgery. A reasonably prudent person who commences a personal injury action to recover damages for injuries to his or her cervical spine would not have non-emergency surgery on that body part without affording a defendant, who has clearly communicated his or her desire for the person to submit to a pre-surgery IME, an opportunity to have the IME performed before the surgery (see generally PJI 2:10 [defining ordinary negligence]). It is possible (although not obvious from the undeveloped motion record) that plaintiff may have intentionally or willfully altered the condition of her cervical spine,3 or done so in gross negligence.4 The particular state of mind with which plaintiff acted is critical: if plaintiff intentionally, willfully or in gross negligence altered the condition of her spine, the third element in the spoliation-sanctions equation — the relevancy of the altered evidence to defendants’ defense — is presumed satisfied (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 547; see also Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 171 AD3d 680 [1st Dept 2019] [gross negligence]; Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 140 AD3d 607 [1st Dept 2016] [gross negligence]). (The presumption can be rebutted by the spoliator [see AJ Holdings Group, LLC v. IP Holdings, LLC, 129 AD3d 504 [1st Dept 2015].) If, however, plaintiff altered the evidence as a result of ordinary negligence, defendants must establish the relevancy of the condition of plaintiff’s cervical spine to their defense (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 547-548). Whether plaintiff altered the condition of her cervical spine intentionally, willfully or in gross negligence, or as a result ordinary negligence can only be ascertained after relevant discovery proceedings, including plaintiff’s deposition. The court, therefore, cannot determine at this juncture the particular state of mind with which plaintiff altered the subject evidence. Because an open question exists as to whether plaintiff altered the subject evidence with a state of mind that would trigger the rebuttable presumption that the evidence was relevant to defendants’ defense of the action, the court need not determine whether the pre-surgery condition of plaintiff’s cervical spine was relevant to defendants’ defense. The court notes, however, that the parties disagree as to whether plaintiff’s medical records would provide an IME physician with the information necessary for the physician to render meaningful opinions as to the condition of plaintiff’s cervical spine. Plaintiff insists that her “medical records and radiology records preserve the necessary information of [her] injuries. In preparing a medical report, the doctor retained by the defendants reviews the same records that plaintiff has provided defendants. Further, the doctor could not conduct any invasive tests, just a basic examination of plaintiff. All of the information necessary for the defense doctor to write his or her report is already in plaintiff’s medical records” (Zieher affirmation in opp. at pp 3-4). In their reply, defendants counter that, under CPLR 3121, they were entitled to have their IME physicians examine plaintiff prior to any cervical spine surgery to determine whether her discectomy and fusion surgery was medically necessary. Defendants also complain that medical records alone will not permit the IME physicians to prepare sufficient reports.5 On the scant motion record, the court cannot say which party is correct. The effect (if any) plaintiff’s surgery will have on an IME physician’s examination of plaintiff and the physician’s ability to render meaningful opinions as to the condition of plaintiff’s cervical spine are matters of professional and technical knowledge possessed by medical experts, not the court (see generally Meiselman v. Crown Heights Hosp., 285 NY 389, 396 [1941] ["Ordinarily, expert medical opinion evidence…is required when the subject-matter to be inquired about is presumed not to be within common knowledge and experience"]). Thus, should this motion be renewed, the parties should consider submitting medical affidavits or affirmations shedding light on whether plaintiff’s surgery hindered defendants’ IME physicians’ ability to perform meaningful IMEs of plaintiff’s cervical spine. In light of the foregoing, defendants’ motion was not frivolous within the meaning of 22 NYCRR 130-1, and plaintiff’s cross motion is denied. Accordingly, it is hereby ordered that defendants’ motion is denied with leave to renew upon the completion of discovery; and it is further, ORDERED that plaintiff’s cross motion is denied. This constitutes the decision and order of the court. Date: May 29, 2019 Bronx, NY
