Spoiling the Evidence – Spoiling the Case, by Arthur XanthosPermalink
Spoliation considerations arise often in premises liability and toxic tort cases. For example, if a plaintiff disposes of personal property that was damaged from a water leak, and the defendant has no other means of assessing the damage to that property, the court can dismiss the plaintiff's property damage claims. Similarly, if a plaintiff renovates or remediates his allegedly toxic apartment prior to giving the defendant an opportunity to test whether that apartment was truly toxic, then the court can dismiss plaintiff's claims relating to the toxic nature of the apartment. See, e.g., Theodoli v.170 E. 77th 1 LLC, 40 Misc. 3d 135(A)(N.Y. App. Term 2013).
In our experience, it is not uncommon that a plaintiff in a case we are defending disposed of her "moldy" clothes, or fixed her water-damaged walls, prior to bringing the lawsuit; but such actions leave the plaintiff open to spoliation penalties, possibly including the dismissal of the entire case.
A database search of reported New York State case law reveals 247 decisions from 2000 through 2006 that mentioned spoliation. In the next seven year period (2007 through 2013), the number of such decisions was 555. What accounts for the 225% increase in spoliation decisions? There are several reasons.
A motion for spoliation penalties is straightforward, can be made anytime -- pre-trial, in limine, or during trial, and has virtually no downside and significant potential upside. Further, and perhaps most relevant, courts in the First Department appear to be imposing stronger spoliation penalties more often than they have in the past.
Theodoli v.170 E. 77th 1 LLC, a case handled by this Firm, is illustrative of the trend toward stronger spoliation penalties. There, a tenant's mold and toxic tort claim was dismissed because he renovated his apartment prior to the defendants' environmental consultant gaining access to test the apartment. On motion, the environmental consultant testified that once an apartment is "cleaned", it is no longer possible to determine whether the apartment was previously toxic. So, because the tenant had destroyed crucial evidence and prevented the defendant from testing the apartment in its allegedly toxic state, his mold and toxic tort claim was dismissed. That decision came down in the Fall of 2013.
The start of 2014 saw the continuation of the judicial trend toward strong spoliation penalties. On January 9, 2014, the First Department came down with a spoliation decision in Malouf v. Equinox Holdings, 2014 N.Y. App. Div. LEXIS 163. Plaintiff Malouf injured herself on a Life Fitness treadmill at an Equinox gym. She sued the Equinox gym, which in turn sued the maker of the treadmill. Equinox, however, had disposed of the subject treadmill prior to the lawsuit; so no party was able to examine it. The court punished the Equinox for its spoliation by dismissing the Equinox's claim against the maker of the treadmill; the court also precluded the Equinox from arguing at trial that the treadmill in question worked properly -- a punishment which could be the functional equivalent of summary judgment for the plaintiff.
The trend in spoliation case law offers two simple lessons, one proactive and the other prophylactic. First, courts are more willing to entertain spoliation motions and less reluctant to impose strong spoliation penalties; therefore, counsel should be constantly mindful of the potential for making a spoliation motion, and should pursue diligently the discovery necessary to secure strong spoliation penalties against the adversary. Second, counsel should from the beginning advise the client on the need to avoid spoliation penalties, by preserving damaged property and by maintaining the status of any object, item, or environment that is crucial to the lawsuit.