IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA RESPONDENTS' ANSWER BRIEF ON THE MERITS

Transcription

1 IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA KAYREN P. JOST, ETC., Petitioner, vs. CASE NO.: SC LAKELAND REGIONAL MEDICAL CENTER, INC., ETC., ET AL., Respondents. / RESPONDENTS' ANSWER BRIEF ON THE MERITS Raymond T. Elligett, Jr., Esq. Florida Bar No Schropp, Buell & Elligett, P.A W. Azeele Street, Suite 100 Tampa, Florida Tel: (813) Fax: (813) Attorneys for American Continental Insurance Company

2 TABLE OF CONTENTS TABLE OF CITATIONS...iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 2 ISSUES ON APPEAL... 5 SUMMARY OF ARGUMENT... 6 ARGUMENT... 8 I. Plaintiff Generally Did Not Plead the Elements of Spoliation of Evidence... 8 II. A Cause of Action for Spoliation Should Not Lie Against a Party to Existing Litigation. Spoliation Should Be Addressed by Sanctions Against the Party in the Pending Litigation A. & B. Neither the Constitution Nor Other Law Mandates a Plaintiff Being Able to Bring a Spoliation Claim in Conjunction with the Underlying Claim C. A Party Should Not Be Permitted to Seek Damages Precluded by the True Facts of the Case at the Time it Is Tried III. IV. A Cause of Action for Spoliation of Evidence Should Be Brought After the Underlying Claim The Alleged Concealment of Evidence Is Not the Destruction or Spoliation of Evidence i

3 V. The Litigation Privilege Also Bars a Separate Action by Plaintiff for Spoliation CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii

4 TABLE OF CITATIONS CASE PAGE Adventist Health System/Sunbelt, Inc., etc. v. Florida Birth-Related Neurological Injury, etc., et al., 29 Fla. L. Weekly D147 (Fla. 5th DCA January 2, 2004) American National Title & Escrow of Florida, Inc. v. Guarantee Title & Trust Company, 748 So. 2d 1054 (Fla. 4th DCA 1999) American National Title & Escrow of Florida, Inc. v. Guarantee Title & Trust Company, 810 So. 2d 996 (Fla. 4th DCA 2002) Ange v. State, 98 Fla. 538, 123 So. 916 (1929) Brandon v. County of Pinellas, 141 So. 2d 278 (Fla. 2d DCA 1962)... 2 Bredin v. Bredin, 103 So. 2d 879 (Fla. 1958) Continental Insurance Company v. Herman, 576 So. 2d 313 (Fla. 3d DCA 1990)... 8 Green Leaf Nursery v. E.I. Dupont De Nemours and Company, 341 F. 3d 1292 (11th Cir. 2003) Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001)... 8 Hatcher v. Dixon, 660 So. 2d 1105 (Fla. 1st DCA 1995) iii

5 Jost v. Ahmad, 730 So. 2d 708 (Fla. 2d DCA 1998)("Jost I") , 11, 12, 14, 18 Jost v. Lakeland Regional Medical Center, Inc., 844 So. 2d 656 (Fla. 2d DCA 2003)("Jost II")... 3, 8, 11 Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Company, 639 So. 2d 606 (Fla. 1994)...16, 17, 19 Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003)... 8, 9 Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000) OTHER AUTHORITIES Fla. R. App. P (c)(1) (8), Florida Statutes (1997) , Florida Statutes (2003) , Florida Statutes (2003) (5), Florida Statutes (1997)... 3 iv

6 PRELIMINARY STATEMENT Respondent, American Continental Insurance Company, refers to itself as "ACIC." 1 ACIC refers to the Petitioner/Plaintiff, Kayren P. Jost, as personal representative of the Estate of Arthur Myers, Deceased, as "Plaintiff." ACIC refers to Respondent, Lakeland Regional Medical Center, Inc., as "the Hospital." ACIC may refer to itself and the Hospital, Defendants below, as "the Defendants." ACIC refers to the record on appeal by the prefix "R-Vol./page number." ACIC refers to references to the initial brief by the prefix "IB." 1 After the underlying order in this case, ACIC was merged into St. Paul Fire and Marine Insurance Company. To this point, there has been no order of substitution. See Fla. R. App. P (c)(1). 1

7 STATEMENT OF THE CASE AND FACTS Plaintiff appeals the dismissal of Counts 1 through 4 of her second amended complaint. Counts 5 through 7 of Plaintiff's second amended complaint -- addressing the alleged medical malpractice claim regarding Arthur Myers -- remain pending against the health care providers (R V5/ ; V6/1077). Because this case reached the Court on the dismissal of a complaint, the wellpled factual allegations are accepted as true, but not conclusory legal statements. 2 As was apparent below, the Defendants vigorously dispute the Plaintiff's factual allegations (see, e.g., R V5/ ). The opinion in Jost v. Ahmad, 730 So. 2d 708, 710 (Fla. 2d DCA 1998)("Jost I"), notes the appellate court was presented with a record that was "lacking in detail." Among the issues that might be flushed out in a full evidentiary context could be whether Dr. Chapman or Dr. Gray misunderstood a trial court warning to avoid collateral issues, as a warning to avoid collateral damage (R V3/429) ). 2 See, e.g., Brandon v. County of Pinellas, 141 So. 2d 278, 279 (Fla. 2d DCA 3 As Jost I notes, Dr. Gray was categorized as a fact witness prohibited to give an expert opinion, but his testimony contained medical opinions. 730 So. 2d at 710. "Collateral Damage" was the title of several books in the early 1990's, and the title of a 2002 Arnold Schwarzenegger movie. See 2

8 Plaintiff attributes a quote from a paragraph in her complaint to the Second District, as if that court made it in the Jost I opinion (IB 3). The indented quote is from the Plaintiff's complaint, and not the Second District's opinion. (730 So. 2d at 708; RV5/956; A 20). As the Second District observed, it reversed in Jost I based on the limited record and reasonable inferences. 730 So. 2d at 710. The court did not make any findings or prejudge whether there had been any actual wrongful conduct, but held that the jury should have been permitted to hear of the allegations. 730 So. 2d at 710. Plaintiff's Count 1 alleged the Defendants concealed or misrepresented certain evidence during the litigation (R V5/ ). Count 2 alleged the Defendants failed to maintain or produce or destroyed certain hospital records (R V5/ ) 4. Count 3 alleged the Defendants concealed information by discouraging a physician from testifying fully during the proceeding (R V5/ ). The counts each alleged that the Defendants' activities impaired Plaintiff's ability to prove the original claims (R V5/953, 954, 957, emphasis added). Count 4 alleged a conspiracy based on the first three counts (R V5/ ). As the Second District observed in Jost v. 4 To the extent Plaintiff complains documents were not produced that dealt with allegedly negligent credentialing of the doctor by the Hospital, or an investigation, there are statutory privileges protecting the production of such documents (IB 2, R V31/61, 82). See (8), (5), Florida Statutes (1997). 3

9 Lakeland Regional Medical Center, Inc., 844 So. 2d 656 (Fla. 2d DCA 2003)("Jost II"), the Plaintiff intertwined her claims of concealment and destruction of evidence. 844 So. 2d at 658. Plaintiff contends her case is now worth less after Mr. Myers died (R V5/ , 953, 955, 957, 959; IB 3-4, 28). Plaintiff alleged the Hospital was under a legal duty to make and maintain relevant medical records regarding Arthur Myers' medical care (R V5/948). Plaintiff alleged that ACIC is the insurer of the Hospital and that it provided defense counsel to defend the Hospital (R V5/ ). 5 5 After the trial court's ruling on the motion to dismiss, ACIC was merged into St. Paul Fire and Marine Insurance Company. The former ACIC employee mentioned in Jost I, Michael Myer, is not an employee of St. Paul. 4

10 ISSUES ON APPEAL I. Whether Plaintiff Pled the Elements of Spoliation of Evidence? II. Whether a Cause of Action for Spoliation Exists Against a Party to Existing Litigation, or Whether Such Action Should Be Addressed by Sanctions Against the Party in the Pending Litigation? III. Whether a Cause of Action for Spoliation of Evidence Should Be Brought in Conjunction with the Underlying Claim? IV. Whether the Alleged Concealment of Evidence Is the Destruction or Spoliation of Evidence? V. Whether the Litigation Privilege Bars a Separate Action by Plaintiff for Spoliation? 5

11 SUMMARY OF ARGUMENT The alleged concealment of evidence is not the destruction of evidence, and therefore not spoliation. Where a party conceals or destroys evidence, it is a serious offense that the court should address. There is a spectrum of sanctions available to address such conduct, including the entry of a default against a party found to have engaged in such conduct. Addressing a party's spoliation of evidence by sanctions in the underlying case is consistent with the litigation privilege immunity from a separate civil suit afforded to a "first party" participant in the underlying suit. The elements of a spoliation claim include the significant impairment in the party's ability to prove the lawsuit resulting from the evidence destruction. The underlying suit should proceed forward to conclusion so that one can evaluate whether these elements of a spoliation claim exist. If so, it can then be brought in a separate action against a "third party" spoliator, if one exists. The Plaintiff here does not complain of true spoliation or destruction of evidence, but of alleged concealment. Such concealment, if proven, can be addressed in the retrial of this action. 6

12 Plaintiff's real quest is to try her case as if Mr. Myers had not died. However, cases are tried based on their true facts at the time of the trial. Courts and juries are not directed to pretend that the facts are other than what they are. 7

13 ARGUMENT Standard of Review. review. ACIC agrees this appeal presents questions of law that are subject to de novo I. Plaintiff Generally Did Not Plead the Elements of Spoliation of Evidence. Accepting the Plaintiff's well-pled factual allegations, she has largely failed to plead a cause of action for spoliation. Plaintiff has misstated the elements of a cause of action for spoliation. At IB 15, she lists the third element as "the spoliation of that evidence." Both opinions she cites state the third element is the "destruction of that evidence." Continental Insurance Company v. Herman, 576 So. 2d 313 (Fla. 3d DCA 1990); Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001); see also Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003); Jost II, 844 So. 2d at 657. As discussed in more detail below, assertions a party concealed evidence or attempted to influence the testimony of a witness are not the destruction of evidence. Evidence that has been concealed can be revealed. The failure to maintain a record or 8

14 produce a record is not the destruction of the record. Witnesses that claim they were pressured can testify to that effect and to what they contend is their true testimony. II. A Cause of Action for Spoliation Should Not Lie Against a Party to Existing Litigation. Spoliation Should Be Addressed by Sanctions Against the Party in the Pending Litigation. Introduction. The first two subsections of this point are largely addressed to the Plaintiff's ability to sue a "first" (or existing) party to an action for spoliation in the suit in which the underlying claim is pending. ACIC was not originally a named party in the underlying action, but was the insurer for the Hospital. ACIC will generally defer to the arguments made by the Hospital in this case and by Wal-mart in the Martino case. ACIC addresses in more depth Plaintiff's Point II C., where Plaintiff claims she should be able to recover damages that ignore the true facts in the case -- namely, the death of Mr. Myers. 9

15 A. & B. Neither the Constitution Nor Other Law Mandates a Plaintiff Being Able to Bring a Spoliation Claim in Conjunction with the Underlying Claim. ACIC generally defers to the arguments made by the other Respondents. ACIC does note that the Plaintiff's "constitutional" arguments overreach. If the Plaintiff were correct, no defense based, for example, on the statute of limitations could survive because it would preclude a remedy for every wrong (IB 19). Plaintiff's concerns at IB are also overstated and show a lack of faith in the jury system. There is no reason to assume that a jury could not follow instructions from the court on what should be done if the jury determines there was a spoliation of evidence. The suggestion that sanctions are inadequate ignores that sanctions can include striking a party's pleadings and entering a default on liability against a party. The professed concern at IB 21 over inconsistent results would not be alleviated by having a jury concomitantly try a spoliation case, as everyone should realize juries can reach different results in similar cases. See Adventist Health System/Sunbelt, Inc., etc. v. Florida Birth-Related Neurological Injury, etc., et al., 29 Fla. L. Weekly D147, 150 (Fla. 5th DCA January 2, 2004). Plaintiff's professed concern over inconsistent judicial rulings in this argument is itself inconsistent with her position in 10

16 Point III, that the trial court should have discretion to decide whether spoliation claims should be tried with the underlying case (IB 21, 31). C. A Party Should Not Be Permitted to Seek Damages Precluded by the True Facts of the Case at the Time it Is Tried. Plaintiff complains that her case will be worth less on a retrial because Mr. Myers died after the original trial (IB 3-4, 28). In other words, Plaintiff complains the value of the case is less given the true current facts. By virtue of Jost I and Jost II, Plaintiff has a right to a new trial and can pursue her malpractice causes of actions pled in Counts 5 through 7. Plaintiff is attempting to obtain damages for a change in circumstances that is unrelated to the alleged spoliation. Plaintiff complains the alleged wrongdoing impaired her ability to prove her "original claims" (R V5/953, 954, 957). Plaintiff's "original claims" for larger damages no longer exist because Mr. Myers died. Plaintiff did not plead she cannot prove the claims that Florida law permits her to pursue after his death. Under the Second District's opinions, the Plaintiff will be free to examine Dr. Gray in the new trial. If the Plaintiff could prove this asserted misdeed or others, she could seek to present them to the jury. Plaintiff is really complaining that because Mr. 11

17 Myers died, the damages she will be entitled to recover under Florida law may be less than she had previously hoped, assuming she is successful in the new trial. This claimed lessening in "damages" is a result of Mr. Myers' death; it was not caused by the claimed "spoliation." 6 Plaintiff cites no case from Florida or anywhere else in the country that permits her to do what she seeks to do here: ignore the true facts at the time of the retrial. This Court has long recognized that after an appeal, when the case returns to the trial court, the case should be tried on the facts that exist at the time the case is heard in the trial court. See, e.g., Bredin v. Bredin, 103 So. 2d 879 (Fla. 1958). In a tort case, the jury measures the damages at the time of the trial. The jury is not asked to pretend that the true facts do not exist -- namely, that Mr. Myers did not die. If adopted, Plaintiff's argument would mean that in every case where there was a reversal for any reason, upon a retrial, the courts should pretend the facts were frozen in time as of the first trial (or the dismissal or summary judgment). A plaintiff who had a substantial life care plan for someone who had died would still be entitled 6 The opinion in Jost I was final with the denial of rehearing in April, 1999, and Arthur Myers died at the end of August, 1999 (R V5/850). Instead of immediately moving to reset the case for trial as permitted by Jost I, the Plaintiff waited until after Mr. Myers died, and then moved to amend to add the counts at issue here (R V5/864, 942). 12

18 to seek damages for the life care plan as if the individual were alive. A plaintiff whose condition had worsened as a result of an injury could be deprived millions of dollars of damages because the factfinder would have to ignore those changes, and the true facts. Plaintiff's attempted reliance on the survival statute, , Florida Statutes (2003) is misplaced, as she recognizes by her citation to the different damages available under the medical malpractice statute when a person is deceased (IB 28). Plaintiff's real dispute is with the differing treatment accorded survivors under the medical malpractice statute, a concern that must be addressed to the legislature. See Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000)(upholding the constitutionality of medical malpractice wrongful death statute). III. A Cause of Action for Spoliation of Evidence Should Be Brought After the Underlying Claim. A spoliation case against a "third party" (not a participant in the underlying litigation) should be brought as a separate action after the underlying litigation, if necessary. In addition to the destruction of relevant evidence, the other elements of a spoliation claim include a significant impairment in the ability to prove the lawsuit, and a causal relationship between the evidence destruction and the inability to prove 13

19 the lawsuit. Jost II, 844 So. 2d at ; IB 15. If a party is able to prove its underlying suit, then it has not been harmed by the alleged spoliation. Plaintiff's professed concerns about the futility of an underlying action in certain cases could be addressed by such a party stipulating to facts so that a summary judgment were entered in the underlying case, and the party could proceed to his separate spoliation case (IB 30). Assuming for the sake of argument that a party's insurer would be a proper defendant in a spoliation claim (see Issue V below), permitting such a claim to be tried with the underlying case would present another problem where the "third party" is an insurer of one of the first party participants in the litigation. Permitting an insurer to be joined in a spoliation case tried concurrent with the underlying case would conflict with the spirit of Florida's non-joinder statute for insurance companies, , Florida Statutes (2003). Under the result Plaintiff seeks, the jury would know the Hospital had insurance. 7 7 To the extent the Plaintiff has alleged conduct by a former employee of ACIC that might be heard by the trier of fact, the parties and trial court could fashion how to describe that individual's position so as not to reveal the insurance coverage concerns behind the non-joinder statute. 14

20 IV. The Alleged Concealment of Evidence Is Not the Destruction or Spoliation of Evidence. As noted, Florida decisions have repeatedly identified the elements of spoliation claims as including the destruction of evidence -- not the concealment of evidence. Obviously, evidence that has been concealed and still exists may be revealed. Therefore, it is not destroyed. For this reason, as the Eleventh Circuit observed, "no Florida case has ever held that concealment of evidence constitutes spoliation." Green Leaf Nursery v. E.I. Dupont De Nemours and Company, 341 F. 3d 1292, 1308 (11th Cir. 2003). Plaintiff acknowledges that none of the out-of-state cases she cites arose in the context of a claim for spoliation of evidence (IB 36, n. 9). At the retrial, Plaintiff will be able to call Dr. Gray, Dr. Chapman and other pertinent witnesses to give testimony. She will be able to introduce non-privileged records she is entitled to discover. The alleged concealment is not destruction and is not spoliation. If the Plaintiff could demonstrate any inappropriate conduct by a defendant, she could seek sanctions, which could include defaulting the party on liability. 15

21 V. The Litigation Privilege Also Bars a Separate Action by Plaintiff for Spoliation. This Court addressed the absolute immunity afforded to acts occurring during litigation in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Company, 639 So. 2d 606 (Fla. 1994). Plaintiff attempts to ignore the breadth of the holding in Levin by focusing on language this Court used to describe the historical development of the immunity privilege (IB 37-38, citing Ange v. State, 98 Fla. 538, 123 So. 916 (1929), cited at 639 So. 2d 608). After discussing that historical background, this Court held that "absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding." 639 So. 2d at 608 (emphasis added). The Plaintiff's allegations here -- the alleged concealment of documents and attempt to influence a witness -- related to the underlying proceeding, as the Plaintiff pled. Recently the Eleventh Circuit followed Levin when addressing allegations of perjured testimony, concealed evidence and falsified discovery in Green Leaf Nursery, 341 F. 3d at

22 As Green Leaf demonstrates, the absolute immunity that exists from a separate action does not preclude the legal system from addressing such improper conduct, if proven. For example, Green Leaf referred to an earlier case where a party had been sanctioned with a substantial monetary fine for committing fraud on the court. 341 F. 3d at The litigation privilege immunity meshes with the holding of the Second District and Fourth District that improper "first party" litigation conduct will be addressed in the underlying case, and not by a separate cause of action. Also, as this Court noted in Levin, the absolute privilege for immunity from civil suit does not protect one who has committed perjury from criminal prosecution, nor lawyers who have misbehaved from the discipline of the state bar. 639 So. 2d at 608. Typical "third-party" spoliation claims (where there has truly been destruction of evidence) arise against third parties who are not involved in the immediate litigation. As this Court discussed in Levin, the litigation privilege applies to "participants in litigation." 639 So. 2d at 608. The litigation privilege applies to bar civil actions against attorneys representing clients in litigation. See, e.g., American National Title & Escrow of Florida, Inc. v. Guarantee Title & Trust Company, 748 So. 2d 1054 (Fla. 4th DCA 1999); Hatcher v. Dixon, 660 So. 2d 1105 (Fla. 1st DCA 1995). 17

23 It appears Florida courts have not expressly addressed whether an alleged action of the insurance carrier for a party would come within the scope of the litigation privilege. Given the Second District's reasoning in Jost I that the Hospital's carrier is an interested party in the litigation (thereby warranting the new trial based on its employee's alleged action), it is consistent that the litigation privilege apply to the insurer. 730 So. 2d at 710. The insurer will ultimately bear the brunt of sanctions in an underlying case for any inappropriate conduct -- whether by its insured, the insured's attorneys, or its own employees. There should be no need to make the insurance company a separate party (unless one wanted to let the jury know the defendant has insurance coverage). As indicated above, this may be an academic question, as once the parties are past the pleading stage, they will no longer be bound by the Plaintiff's unilateral allegations -- allegations that generally do not amount to spoliation. Plaintiff misplaces her attempted reliance on American National Title & Escrow of Florida, Inc. v. Guarantee Title & Trust Company, 810 So. 2d 996 (Fla. 4th DCA 2002)(IB 40). The court refers to actions it had held were immune in a prior appeal based on the privilege, where those actions were done pursuant to court orders. The court did not say that actions must be taken pursuant to court orders to be immune. To the extent Plaintiff attempts to rely on what might be loosely worded language, 18

24 such language cannot overcome this Court's clear statement that absolute immunity applies to any act during the course of the proceeding so long as the act has some relation to the proceeding. In other words, no court order is required. The defendant was not acting on a court order in Levin. The allegations of concealing documents that should have been produced during the proceeding and attempting to influence a witness who would testify during the proceedings would be acts related to the proceeding. If the Plaintiff were correct in her positions under Points IV and V, Florida law would spawn a new breed of multiple litigation in "spoliation" cases, where the unsuccessful litigant sued the same parties again (and perhaps their lawyers), claiming he lost his prior suit because the opposing party lied or concealed evidence. 19

25 CONCLUSION Plaintiff's claims are addressed by the Second District's new trial order, and do not give rise to a spoliation claim. Plaintiff did not plead damages caused by alleged spoliation, but that her case is worth less because of an unrelated event. The litigation immunity precludes the Plaintiff bringing a separate action for alleged concealment during litigation. The dismissal of ACIC should be affirmed. Respectfully submitted, Raymond T. Elligett, Jr., Esq. Florida Bar No Schropp, Buell & Elligett, P.A W. Azeele Street, Suite 100 Tampa, Florida Tel: (813) Fax: (813) Attorneys for American Continental Insurance Company 20

26 CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to: W.C. GENTRY, ESQ. and JENNIFER KOLINSKI MILLIS, ESQ., Law Office of W.C. Gentry, P.A., One Independent Drive, Suite 1701, Jacksonville, Florida 32202; CORINNE C. HODAK, ESQ., 1920 San Marco Boulevard, Jacksonville, Florida 32207; and WESLEY A. FINK, ESQ., Fink & Sweet, P.O. Box 1866, Ormond Beach, Florida , Attorneys for Petitioner; TRICIA B. VALLES, ESQ., Hahn, Morgan & Lamb, P.A., 2701 N. Rocky Point Drive, Suite 410, Tampa, Florida 33607, Attorneys for Lakeland Regional Medical Center, Inc.; and RONALD H. JOSEPHER, ESQ., Josepher & Batteese, P.A., First Union Plaza, Suite 1190, 100 S. Ashley Drive, Tampa, Florida 33602, Attorneys for Amir Ahmad, M.D. and Amir Ahmad, M.D., P.A. on February 2, Attorney CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief has been prepared using 14-point Times New Roman type, a font that is proportionately spaced. 21

27 22 Attorney