IN THE SUPREME COURT OF THE STATE OF FLORIDA. v. CASE NO. SC04-489

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA BIOMET, INC., a foreign corporation with its principal place of business in Warsaw, Indiana and licensed to do and be in business in Florida, and MIKE TRIESTE, Petitioners, v. CASE NO. SC NORMAN C. FLEURY, JR. and KAREN FLEURY, Respondents. / ON APPEAL FROM THE DISTRICT COURT OF APPEAL SECOND DISTRICT OF FLORIDA Case No. 2D AMENDED JURISDICTIONAL BRIEF OF PETITIONERS A. Lamar Matthews, Jr. Florida Bar No MATTHEWS, EASTMOORE, HARDY, CRAUWELS & GARCIA, P.A. P. O. Box Sarasota, FL and Main Street, Suite 500 Sarasota, FL Telephone: Facsimile: Marie A. Borland Florida Bar No Robert B. Gough, III Florida Bar No HILL, WARD & HENDERSON, P.A. 101 East Kennedy Blvd., Suite 3700 Tampa, Florida Telephone: Facsimile: Attorneys for Petitioners Biomet, Inc. and Mike Trieste

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIESii STATEMENT OF THE CASE AND FACTS1 SUMMARY OF ARGUMENT3 ARGUMENT4 I. THE SECOND DISTRICT'S OPINION REVERSING THE TRIAL COURT'S IMPOSITION OF SANCTIONS FOR SPOLIATION OF EVIDENCE IS IN EXPRESS AND DIRECT CONFLICT WITH DECISIONS OF OTHER FLORIDA DISTRICT COURTS OF APPEAL.4 A. The Second District's holding that the trial court had "no basis for imposing sanctions" because the spoliation was "inadvertent" and "none of the parties were at fault" is in express and direct conflict with decisions of other Florida courts.4 B.The Second District's holding that the trial court committed reversible error by determining that dismissal was too harsh a sanction and then entering an order which "accomplished the same result" is in express and direct conflict with decisions of other Florida courts.6 C.The Second District's holding that Biomet "suffered no real prejudice from the loss of the evidence" and that the entry of the Spoliation Order and the final summary judgment were therefore reversible error is in express and direct conflict with decisions of other Florida courts.7 D.The Second District's holding is in express and direct conflict with the policy concerns expressed in Torres.9 CONCLUSION...10 CERTIFICATE OF SERVICE11 CERTIFICATE OF COMPLIANCE11 i

3 TABLE OF AUTHORITIES Cases Page(s) DeLong v. A-Top Air Conditioning Co., 710 So. 2d 706 (Fla. 3rd DCA 1998)... 3, 5, 7, 8 DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3rd DCA 1983)... 3 Federal Ins. Co. v. Allister Manu. Co., 622 So. 2d 1348 (Fla. 4th DCA 1993)... 3, 6, 7, 8 Fleury v. Biomet, 865 So. 2d 537 (Fla. 2nd DCA 2003)... 1 Metro. Dade Cty. v. Bermudez, 648 So. 2d 197 (Fla. 1st DCA 1994)... 3, 6, 7, 8 Torres v. Matsushita Elec. Corp., 762 So. 2d 1014 (Fla. 5th DCA 2000)... passim Florida Statutes and Rules Florida Rules of Appellate Procedure 9.030(a)(2)(A)(iv)... 1, 10 ii

4 STATEMENT OF THE CASE AND FACTS Petitioners (collectively, "Biomet") seek to invoke this Court's discretionary jurisdiction under Florida Rules of Appellate Procedure 9.030(a)(2)(A)(iv), to review an Opinion of the Second District Court of Appeal reversing a final summary judgment and a spoliation order in their favor on Respondents' product liability action. Fleury v. Biomet, 865 So. 2d 537 (Fla. 2nd DCA 2003) (App. A.) Review is sought on the basis that the Second District's Opinion is in express and direct conflict with decisions of other Florida district courts of appeal properly reviewing a trial court's imposition of sanctions for spoliation of evidence under the abuse of discretion standard. 1 Respondents' products liability action sought damages allegedly sustained by Respondent Mr. Fleury as a result of a purportedly defective prosthetic device, manufactured by Biomet, which was implanted into and later explanted from Mr. Fleury's right knee. The Biomet artificial knee -- the subject of the action -- was discarded by the hospital within hours after Mr. Fleury's surgery. (App. A, p.3.) The Second District noted that there was "some evidence to suggest that before Mr. Fleury's second surgery he and Dr. Askins believed that the Biomet knee was defective," and that Dr. Askins "could have directed the hospital to preserve the knee, but he did not." (Id., pp. 3-4.) 1 In this case, it appears that the Second District improperly applied a more stringent standard applicable to the entry of summary judgment. (App. A, p. 2.) 1

5 In the lawsuit, Respondents and their experts contended that polyethylene molded to the tibial tray of the artificial knee failed because it had oxidized over time due to a process used by Biomet to sterilize the device. (App. A, p. 3.) Biomet moved to dismiss the claim due to spoliation of evidence, arguing that its defense was severely prejudiced as a result of its inability to examine and test the discarded device. In support, Biomet filed an affidavit of Dr. Stephen Li, an expert in polymers used in medical devices, who stated that it would be "impossible" to attribute the failure of the artificial knee to oxidation without examining and testing the product. (App. A, p. 4.) The trial court entered an Order imposing sanctions for the Respondents' spoliation of evidence (the "Spoliation Order"). Although the court did not dismiss the action, it determined (i) that Respondents' physician who performed the knee replacement surgery (Dr. Askins), and their expert witnesses, would be precluded from opining as to the cause of any observed polyethylene wear, or that oxidation contributed to the wear of the device; and that (ii) the jury must presume that the product was not defective. (App. A, p. 4.) The trial court subsequently entered a final summary judgment in favor of Biomet. (Id.) On December 17, 2003, the Second District reversed the trial court's entry of final summary judgment on the ground that the court "should not have entered the spoliation order." (App. A, p. 4.) The Second District determined that there was 2

6 "no basis for imposing sanctions" because (1) "the spoliation of the evidence in this case was inadvertent and... none of the parties were at fault," and because (2) "the Defendants were not prejudiced by the spoliation of evidence..." (Id., p. 6.) SUMMARY OF ARGUMENT The Second District Court of Appeal s holding that "there was no basis for imposing sanctions" because "the spoliation... was inadvertent" and "none of the parties were at fault" is in express and direct conflict with the following decisions: DeLong v. A-Top Air Conditioning Co., 710 So. 2d 706, 707 (Fla. 3rd DCA 1998); Torres v. Matsushita Elec. Corp., 762 So. 2d 1014, 1016 (Fla. 5th DCA 2000); and DePuy, Inc. v. Eckes, 427 So. 2d 306, 308 (Fla. 3rd DCA 1983). The Second District's further holding that it was "cause for reversal" for the trial court to determine that dismissal was "too harsh a sanction" and then to "accomplish[] the same result" by virtue of the Spoliation Order is in express and direct conflict with the following decisions: Federal Ins. Co. v. Allister Manu. Co., 622 So. 2d 1348 (Fla. 4th DCA 1993); and Metro. Dade Cty. v. Bermudas, 648 So. 2d 197, 200 (Fla. 1st DCA 1994). Finally, the Second District's holding that a defendant charged with manufacturing a defective product suffers "no real prejudice" when the product is discarded before the defendant has examined it, as long as the plaintiff likewise has not inspected or examined the product, and that sanctions in such instances are not warranted, is in express and direct conflict with Torres, supra. 3

7 ARGUMENT I. THE SECOND DISTRICT'S OPINION REVERSING THE TRIAL COURT'S IMPOSITION OF SANCTIONS FOR SPOLIATION OF EVIDENCE IS IN EXPRESS AND DIRECT CONFLICT WITH DECISIONS OF OTHER FLORIDA DISTRICT COURTS OF APPEAL. District held: A. The Second District's holding that the trial court had "no basis for imposing sanctions" because the spoliation was "inadvertent" and "none of the parties were at fault" is in express and direct conflict with decisions of other Florida courts. In reversing the summary judgment and the Spoliation Order, the Second The circuit court having determined that the spoliation of the evidence in this case was inadvertent and that none of the parties were at fault, and it being apparent that the defendants were not prejudiced by the spoliation of evidence, there was no basis for imposing sanctions on its account. (App. A, p. 6.) The Second District's holding is in express and direct conflict with decisions of other Florida courts upholding a trial court's imposition of the harshest of all sanctions, even where the loss of evidence is "inadvertent." See DeLong, supra, at 707 (trial court did not abuse its discretion in dismissing plaintiffs' personal injury action with prejudice after plaintiff "inadvertently lost or misplaced a piece of relevant and material evidence") (Emphasis added.); Torres, supra, at 1016 (affirming trial court's dismissal where plaintiff's attorney's inadvertent destruction of the allegedly defective vacuum cleaner precluded any form of examination by the defendant or its expert) (Emphasis added.) 4

8 2 ; DePuy, Inc., supra, at 308 (affirming sanctions for defendants' negligent destruction of prosthetic device, even though plaintiff had tested device before turning it over to defendants). The Second District's determination that "there was no basis for imposing sanctions" because "none of the parties were at fault" is also in express and direct conflict with Florida case law recognizing a party's duty to preserve evidence. Torres, supra, at 1019 (addressing a plaintiff's special duty to preserve evidence in that party's possession which may be material to a contemplated civil action); Metro. Dade Cty., supra, at 200 ("Exclusion of expert testimony based on an examination of evidence which a party has taken custody of but subsequently loses is ordinarily appropriate, where it appears that the party offering the evidence and responsible for the loss, knew, or reasonably should have known, that the evidence was material to pending or impending litigation.") (Emphasis added.) Under Torres and Metro. Dade Cty., Respondents had a duty to preserve the device, and were subject to sanctions for allowing a third party to dispose of it. The Second District's holding that there was "no basis for imposing sanctions" -- after citing to evidence in the record establishing Respondents' duty to preserve the device -- is in express and direct conflict with those decisions. 2 Judge Cobb noted in his specially concurring opinion in Torres that the "dissent's assertion that the fact that the loss of the evidence... was inadvertent rather than intentional mandates reversal of the trial court" is in direct conflict with DeLong. Torres at p

9 B. The Second District's holding that the trial court committed reversible error by determining that dismissal was too harsh a sanction and then entering an order which "accomplished the same result" is in express and direct conflict with decisions of other Florida courts. The Second District held that the trial court's entry of the "equivalent of a dismissal," after determining that "neither party was at fault for the loss of the evidence" and that dismissal was too "harsh a sanction," was in itself "cause for reversal." (App. A, p. 5.) This holding is in conflict with Federal Ins., supra, and Metro. Dade Cty. In Federal Ins. Co., the court approved of the imposition of sanctions similar to those imposed in the present case, which the court acknowledged might be "technically less harsh than precluding any evidence," but "may still leave the plaintiff without the means to prove its case." Federal Ins. Co. at 1350 (Emphasis added.) The court in Metro. Dade Cty. similarly acknowledged that the exclusion of expert testimony and/or use of inferences favorable to the prejudiced party (the exact sanctions imposed in the present case) are appropriate where relevant evidence has been inadvertently destroyed. Metro. Dade Cty. at 200. The Second District's holding that it is "cause for reversal" for a trial court to opine that dismissal is "too harsh a sanction," and then to enter the practical "equivalent of a dismissal," is in express and direct conflict with Federal Ins. Co. and Metro. Dade Cty. 3 3 Because Biomet's expert testified that it would be "impossible" to definitively refute Respondents' causation theory without the discarded device, the trial court would have acted within its discretion even if it had entered the ultimate sanction of dismissal. See, e.g., Torres, supra (affirming trial court's dismissal on the basis that plaintiff's attorney's inadvertent destruction of the allegedly defective vacuum cleaner precluded any form of examination by the defendant or its expert). 6

10 C. The Second District's holding that Biomet "suffered no real prejudice from the loss of the evidence" and that the entry of the Spoliation Order and the final summary judgment were therefore reversible error is in express and direct conflict with decisions of other Florida courts. The Second District concluded that the Spoliation Order was reversible error because "both parties are in the same position" and Biomet therefore has "suffered no real prejudice from the loss of the evidence." (Id., p. 5.) According to the Second District, because "[n]either side will be able to present expert testimony founded on the experts' examination or testing of the product... it cannot be said that the loss of the evidence put the defendants at a disadvantage in the litigation." (App. A, pp. 5-6.) This holding is in express and direct conflict with DeLong. In DeLong, the Third District held that sanctions for spoliation are warranted where a party has demonstrated its "inability to completely set forth [its] defense without having had the opportunity to examine and test the lost evidence..." DeLong at 707. The Second District's conclusion that the Spoliation Order was reversible error because Biomet "suffered no real prejudice" from the loss of the very device it is accused of defectively manufacturing -- notwithstanding the Court's express reference to record evidence establishing that it would be "impossible" for Biomet to definitively refute Respondents' causation claim without an ability to test and examine the device -- is in express and direct conflict with the Third District's holding in DeLong. The Second District's holding is also in express and direct conflict with Torres. Under the Second District's Opinion, it is an abuse of discretion to impose sanctions 7

11 for spoliation of evidence where a surgical plaintiff has failed to preserve a prosthetic device he or she believes may be defective and the subject of subsequent litigation, as long as the defendant also has not tested or examined the discarded device and therefore is "in the same position" as the plaintiff. The Fifth District in Torres, however, has recognized a plaintiff's special duty to preserve evidence in his or her possession which may be material to a contemplated civil action. Torres at The Second District's conclusion is in express and direct conflict with Torres. D. The Second District's holding is in express and direct conflict with the policy concerns expressed in Torres. In his concurring opinion in Torres, Judge Harris stated: The State's system of civil litigation is founded in large part on a litigant's ability under the authority of the Supreme Court rules, to investigate and uncover evidence after filing suit. Destruction of evidence known to be relevant to pending litigation violates the spirit of liberal discovery. Torres at (Emphasis added.) For this reason, Judge Harris recognized that the same policy concerns for condemning the willful destruction of evidence, apply equally to the inadvertent or negligent loss or destruction of evidence. Id. According to Judge Harris, "[s]poliation of evidence creates enormous costs for both the victimized party and the judicial system, prevents fair and proper adjudication of the issues, and interferes with the administration of justice." Id. 4 4 The conclusion reached by the Second District was expressly rejected by a decision relied on by the courts in Federal Ins. Co. and Metro. Dade Cty.: Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 365 (D. Mass. 1991). The Headley court rejected the plaintiff's argument that the defendants were not prejudiced because "both plaintiff's and defendant's experts will be constrained to render their opinions based on the very same evidence...," finding that the plaintiffs' "two tie, all tie" analysis was "simply incorrect." Id. at

12 The Second District's holding in the present case is in express and direct conflict with Torres. In this case, Respondents have been rewarded for their loss of the one single, critical piece of evidence in this case, by facing no consequences for failing to preserve the device, or authorizing the hospital to dispose of it. As predicted in Torres, the spoliation in the present case has already created enormous costs for both the victimized party and the judicial system; will prevent the fair and proper adjudication of the issues; and therefore will interfere with the administration of justice. By reversing the sanctions imposed by the trial court, the Second District's Opinion signals to future litigants that no penalty will be imposed for the loss of evidence, as long as it can be said that "both parties are in the same position." The Opinion therefore creates not only conflicting but dangerous precedent. CONCLUSION For the reasons set forth above, Biomet respectfully requests that this Court exercise its discretionary jurisdiction over this matter pursuant to Florida Rules of Appellate Procedure 9.030(a)(2)(A)(iv). 9

13 Respectfully submitted, A. Lamar Matthews, Jr. Florida Bar No MATTHEWS, EASTMOORE, HARDY, CRAUWELS & GARCIA, P.A. P. O. Box Sarasota, FL and Main Street, Suite 500 Sarasota, FL Telephone: Marie A. Borland Florida Bar No Robert B. Gough, III Florida Bar No HILL, WARD & HENDERSON, P.A. 101 East Kennedy Blvd., Suite 3700 Tampa, Florida Telephone: Facsimile: Facsimile: Attorneys for Petitioners CERTIFICATE OF SERVICE Biomet, Inc. and Mike Trieste I hereby certify that a true and correct copy of the foregoing has been served by U.S. Mail this 6th day of April, 2004, upon John P. Graves, Jr., Esq., Graves & Stephan, Chartered, 200 South Washington Boulevard, Suite 7, Sarasota, FL

14 Attorney CERTIFICATE OF COMPLIANCE I hereby certify that this brief is in compliance with Rule 9.210, Fla. R. App. P., and is in the required font of Times New Roman 14. Attorney 11