RESPONDENT LAKELAND REGIONAL MEDICAL CENTER, INC. S ANSWER BRIEF ON THE MERITS

Transcription

1 IN THE SUPREME COURT OF FLORIDA KARYEN P. JOST, as Personal Representative of the Estate of ARTHUR MYERS, Deceased, v. Petitioner, CASE NUMBER: SC03-95 LAKELAND REGIONAL MEDICAL CENTER, INC., a corporation; and AMERICAN CONTINENTAL INSURANCE COMPANY, a corporation, Respondents. / RESPONDENT LAKELAND REGIONAL MEDICAL CENTER, INC. S ANSWER BRIEF ON THE MERITS Tricia B. Valles, Esq. Florida Bar No Morgan, Lamb, Goldman & Valles, P.A N. Rocky Point Drive, Suite 410 Tampa, Florida (813) (telephone) (813) (facsimile) Attorney for Lakeland Regional Medical Center, Inc.

2 Table of Contents TABLE OF CONTENTS... i TABLE OF AUTHORITIES...ii STATEMENT OF THE CASE AND FACTS... 1 ISSUES PRESENTED... 7 SUMMARY OF THE ARGUMENT... 8 I. MOST OF PLAINTIFF S ALLEGATIONS ARE NOT COGNIZABLE ELEMENTS OF A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE...10 II. THIS COURT SHOULD NOT RECOGNIZE A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE AGAINST A DEFENDANT, OR FIRST PARTY, TORTFEASOR...11 III. ONLY THE DESTRUCTION OR LOSS OF EVIDENCE WILL SUPPORT A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE...16 IV. EVEN IF A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE AGAINST A FIRST-PARTY TORTFEASOR DOES EXIST UNDER FLORIDA LAW, COUNTS I-IV WERE PROPERLY DISMISSED BECAUSE THERE IS ABSOLUTE IMMUNITY FROM CIVIL SUIT FOR THE ALLEGED CONDUCT...18 V. IF A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE DOES EXIST UNDER FLORIDA LAW AGAINST A FIRST-PARTY, IT CANNOT BE BROUGHT CONCURRENTLY WITH THE UNDERLYING SUIT FOR NEGLIGENCE...24 VI. PLAINTIFF FAILED TO STATE A CAUSE OF ACTION IN COUNTS I-IV OF HER SECOND AMENDED BECAUSE NO CAUSE OF ACTION EXISTS TO RECOVER DAMAGES FOR THE ALLEGED LOSS OF ARTHUR MYERS PERSONAL INJURY CLAIM THAT WENT TO VERDICT IN CONCLUSION...32 i

3 CERTIFICATE OF SERVICE...33 CERTIFICATE OF COMPLIANCE...34 Florida Cases Table of Authorities Abbott v. Friedsam, 682 So.2d 597 (Fla. 2d DCA 1996)...27 Airport Sign Corp. v. Dade County, 400 So.2d 828 (Fla. 3d DCA 1981)...25 Aldrich v. Roche Biomedical Labs, Inc., 737 So.2d 1124 (Fla. DCA 1999)...16 American Nat l Title & Escrow of Fla. Inc. v. The Guar. Title & Trust Co., 810 So.2d 996 (Fla. 4 th DCA 2002)...22, 24 American National Title Escrow of Fla., Inc. v. Guarantee Title & Trust Co., 748 So.2d 1054 (Fla. 4 th DCA 1999) Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA 1981)... 24,26 Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984)...12, 13 Caloosa Property Owners Ass n, Inc. v. Palm Beach County Bd. Of County Comm rs., 429 So.2d 1260 (Fla. 1 st DCA 1983)...13 Carter v. State Road Dept., 189 So.2d 793 (Fla. 1966)...15 Chapman v. Garcia, 463 So.2d 528 (Fla. 3d DCA 1985)...27 Continental Ins. Co. v. Herman, 576 So.2d 313 (Fla. 3d DCA 1990)...10, 24 ii

4 Cox v. Klein, 546 So.2d 120 (Fla. 1 st DCA 1989)...19 Cruger v. Love, 599 So.2d 111 (Fla. 1992)... 5 DePuy, Inc. v. Eckes, 427 So.2d 306 (Fla. 3d DCA 1983)...15 Federal Ins. Co. v. Allister Manuf. Co., 622 So.2d 1348 (Fla. 4 th DCA 1993)...14, 16 Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992)...19, 22, 23 Glucksman v. Persol North America, Inc., 813 So.2d 122 (Fla. 4 th DCA 2002)...26 Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088 (Fla. 4 th DCA 2001)...10 Heard v. Mathis, 344 So.2d 651 (Fla. 1 st DCA 1977)...24 Humana Worker s Comp. Serv. v. Home Emergency Sys., Inc., 842 So.2d 778 (Fla. 2003)... 12,31 Jost v. Ahmad, 730 So.2d 708 (Fla. 2d DCA 1999)...1,2,5,18 Jost v. Ahmad, 844 So.2d at Kluger v. White, 281 So.2d 1 (Fla. 1973)...13 Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell v. U.S. Fire Ins., Co., 639 So.2d 606 (Fla. 1994)...17,18,19,20,23 Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So.2d 433 (Fla. 3d DCA 2001)... 15,25 Lussy v. Fenniman, iii

5 763 So.2d 1110 (4 th DCA 1999)...15 Martino v. Wal-Mart Stores, Inc., 835 So.2d 1251 (Fla. 4 th DCA 2003)...14 McElrath v. Burley, 707 So.2d 836 (Fla. 1 st DCA 1998)...13 Moghari v. Anthony Abraham Chevrolet Co., 699 So.2d 278 (Fla. 3d DCA 1997)...16 New Hampshire Ins. Co., Inc. v. Royal Ins. Co., 559 So.2d 102 (Fla. 4 th DCA 1990)...15 Penthouse North Assoc., Inc. v. Lombardi, 461 So.2d 1350 (Fla. 1985)...25 Perl v. Omni Int l of Miami, Ltd., 439 So.2d 316 (Fla. 3d DCA 1983)...17 Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987)...14, 15 Regal Marble, Inc. v. Drexel Investments, Inc., 568 So.2d 1281, (Fla. 4 th DCA 1990)... 5, 17 Rockwell Int l Corp. v. Menzies, 561 So.2d 677 (Fla. 3d DCA 1990)...15 Royal Netherlands Steamship Co. v. Quinto de Garcia, 489 So.2d 128 (Fla. 3d DCA 1986)...16 Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998)...26 Sinclair Refining Co. v. Butler, 190 So.2d 313 (Fla. 1966)...2,29 Sponco Manuf., Inc. v. Alcover, 656 So.2d 629 (Fla. 3d DCA 1995)...15 Strohm v. Hertz Corp., 685 So.2d 37 (Fla. 1 st DCA 1996), review denied mem., 697 So.2d 512 (Fla. 1997)...13 iv

6 Stucchio v. Huffstetler, 720 So.2d 288 (Fla. 5 th DCA 1998)...22 Surf Tech Int l, Inc. v. Rutter, 785 So.2d 1280 (5 th DCA 2001)...16 Sussman v. First Financial Title Co. of Fla., 793 So.2d 1066 (Fla. 4 th DCA 2001)... 24,25 Tenet Healthsystem Hospitals, Inc. v. Taitel, 855 So.2d 1257 (Fla. 4 th DCA 2003)... 5 Thompson v. State, 796 So.2d 511 (Fla. 2003)...16 Townsend v. Conshor, Inc., 832 So.2d 166 (Fla. 2d DCA 2002)...25 Wright v. Yurko, 446 So.2d 1162 (Fla. 5 th DCA 1984)...19 Zuckerman v. Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., 670 So.2d 1051 (Fla. 3d DCA 1996)...27 Other State Cases Cedars-Sinai Medical Ctr. v. Superior Court, 954 P.2d 511 (Cal. 1998)...12, 14 Comp. Lucas v. Christian A. Skating Center, Inc., 722 A.2d 1247 (Del. Super. Ct. 1998)...18 Manorcare Health Services, Inc. v. Osmose Wood Preserving, Inc., 764 A.2d 435 (N.J. 2001)...18 McCool v. Gehret, 657 A.2d 269 (Del. 1995)...18 Miller v. Montgomery County, 494 A.2d 761 (Md. Ct. App. 1985)...18 v

7 Rosenblit v. Zimmerman, 166 N.J. 391 (N.J. 2000)...17 Shpak v. Schertle, 629 A.2d 763 (Md. Ct. App )...18 Smith v. Superior Court, 198 Cal. Rptr. 829 (Cal. Ct. App. 1984)...12 Williams v. California, 664 P.2d 137 (Cal. 1983)...12 Federal Cases Florida Evergreen Foliage v. E.I. Du Pont De Nemours and Co., 165 F. Supp (S.D. Fla. 2001)...17, 19, 21, 22 Green Leaf Nursery v. E.I. Dupont De Nemours and Co., 341 F.2d 1292 (11 th Cir. 2003)...ibid Statutes and Rules , Florida Statutes...29, , Florida Statutes , Florida Statutes , Florida Statutes... 3 Florida Rule of Civil Procedure Other Authorities Article I, Section 21, Florida Constitution...13 Article I, Section 22, Florida Constitution...15 Spoliation of Evidence: A Troubling New Tort, vi

8 37 U. Kan. L. rev. 563 (1989)...14 STATEMENT OF THE CASE AND FACTS In 1995, Karyen Jost, as guardian for Arthur Myers, filed a medical negligence suit against Lakeland Regional Medical Center ( LRMC ) and Dr. Amir Ahmad and his Professional Association, seeking to recover damages for the personal injury to Arthur Myers. R This medical malpractice action was tried for three weeks beginning February 24, Volumes 12-30/R The jury returned a verdict in favor of all defendants. R Plaintiff appealed the defense verdict. R One of the grounds on appeal was the trial court s preclusion of evidence of a communication between Dr. Gray, a fact witness in the case, and Dr. Chapman, the risk management officer at the Watson Clinic where Dr. Gray worked. 1 Dr. Gray 1 The Plaintiff presented several other grounds on appeal, none of which pertained to any alleged spoliation of evidence. 1

9 had informed the court that he had been contacted by Dr. Chapman and told that his testimony was to limit collateral damages. Jost v. Ahmad, 730 So.2d 708, (Fla. 2d DCA 1999)( Jost I ). Prior to trial, the trial court had entered an order instructing that Dr. Gray was not to provide any standard of care, or expert, opinions; i.e. Dr. Gray was not to testify as to collateral issues beyond his fact testimony in this case. See Id. at 709; R The Second District Court of Appeal, making what it called reasonable inferences from the limited record, reversed and remanded for a new trial, holding that the plaintiff could present evidence of the subject conversation to the jury for their consideration. Jost I, 730 So.2d 708. On August 28, 1999, Arthur Myers, on whose behalf the medical malpractice claim had been brought, died. R ; R- 946 at 19. Plaintiff thereafter amended her complaint to allege the medical negligence claims under Florida s survivorship statute and alternatively alleged wrongful death claims arising from the same alleged medical negligence. R ; R Pursuant to plaintiff s survival claim, Plaintiff is able to continue Arthur Myers personal injury These spoliation of evidence counts only surfaced after Arthur Myer s death. 2

10 claim and if successful would recover damages for Arthur Myers pain and suffering, lost earnings, and medical or other expenses, if any, from the date of the alleged negligence in February, 1994 through Mr. Myer s death in August, See Sinclair Refining Co. v. Butler, 190 So.2d 313, 316 (Fla. 1966)( the death of the decedent is the cut off point beyond which the personal-representative-plaintiff may not go in proving and recovering, on behalf of the decedent s estate, the damages sustained by the decedent in his person or property on account of the tortious act of the defendant )(external citations omitted); R-961 at 58; R at 73; R-971 at 79; R at 88. Alternatively, Plaintiff s wrongful death claim would entitle her to recover certain funeral and medical expenses and any lost earning from the date of injury to the date of death. Section , Florida Statutes; R at 90; R-962 at 61; R-974 at 91[sic]; R-975 at 94. Plaintiff has not alleged any impairment of her ability to prove these claims. In addition to the survival and wrongful death counts arising out of the alleged medical negligence, Plaintiff also added four additional counts for what she classified as Tortious Interference with Plaintiff s Civil Action. R at Counts I-IV. In these four counts plaintiff seeks to recover 3

11 what she believes the jury would have awarded as personal injury damages had there been a verdict in her favor at the trial in 1997, including approximately twenty-five years of future damages. Id. Plaintiff maintains Arthur Myers life expectancy was approximately twenty-five years when this case was initially tried in early R-953 at 39; R-955 at 44; R-957 at 50; R at 54. In actuality, Arthur Myers only lived for another two and a half years, well short of plaintiff s suggested twenty-five year life expectancy. R ; R-946 at 19. Plaintiff alleges that when Arthur Myers was alive, he had a significant medical malpractice claim against LRMC in excess of $4.5 million for economic damages and more than $5 million for past and future pain and suffering, disfigurement and loss of the enjoyment of life, based upon plaintiff s presumed, and ultimately inaccurate, twenty-five year life expectancy for Arthur Myers. R at 20. Plaintiff states that as a result of Arthur Myers subsequent death, his prior claim for personal injuries has been significantly impaired, if not largely eliminated. R-953 at 38(emphasis added); see also Petitioner s Initial Brief ( IB ) at pp Through Counts I-IV of Plaintiff s Second Amended Complaint, Plaintiff seeks to retry this case and receive damages as though 4

12 Arthur Myers never died. IB at pp Plaintiff argues that she should not be limited by the Survival Act or Wrongful Death Act and she should be entitled to recover future damages extending approximately twenty-three years beyond Arthur Myers death. See IB. Count I of Plaintiff s Second Amended Complaint can best be described as a count for failure to produce or disclose certain evidence or information during discovery in the underlying litigation, amounting to intentional concealment. 2 R Count II of Plaintiff s Second Amended Complaint also alleges a failure to produce certain records, but goes further by also alleging a failure to maintain and/or the destruction of certain records. R The primary focus of these allegations is the failure to produce records pertaining to the credentialing and privileging of Dr. Ahmad. Id. Those records, however, are not discoverable by the Plaintiff pursuant to the peer-review 2 Interestingly, these vague allegations of failure to produce evidence, improperly withholding evidence, or misrepresenting evidence were never alleged against the defendants at any time during the underlying litigation. Plaintiff never sought the court s assistance in ascertaining whether certain requested information was being improperly withheld. Even Plaintiff s appeal in Jost I contained no argument associated with a failure to produce certain evidence nor the misrepresentation of any evidence. This issue only arose after Arthur Myers death seemingly limited plaintiff s potential monetary damages in this case. 5

13 and credentialing privileges found in and , Florida Statutes. See e.g. Cruger v. Love, 599 So.2d 111 (Fla. 1992); Tenet Healthsystem Hospitals, Inc. v. Taitel, 855 So.2d 1257 (Fla. 4th DCA 2003); R-954 at 42. Count III alleges the defendants intimidated and coerced witnesses involved in the underlying litigation. 3 R Count IV alleges a conspiracy amongst the defendants to commit the first three Counts. 4 R These four counts seek to recover for the loss of the alleged significant monetary value associated with the original personal injury medical negligence claims, prior to Arthur Myers death. R-953 at 38 & 39; R at 43 & 44; R-957 at 49 & 50; R at 54. None of these claims assert that Plaintiff is unable to prove her medical negligence claims in the pending survival or wrongful death actions. Petitioner s Statement of the Case and the Facts in the 3 The Second District Court of Appeal provided a proper remedy for these allegations when it reversed the trial court and remanded the case for a new trial. Jost I,730 So.2d There does not seem to be any disagreement with the legal proposition that plaintiff would have to demonstrate an underlying actionable offense in order to sustain her conspiracy count. See e.g. Regal Marble, Inc. v. Drexel Investments, Inc., 568 So.2d 1281, 1283 (Fla. 4 th DCA 1990)(there could be no separate cause of action for civil conspiracy where absolute immunity precluded plaintiff s underlying claim). 6

14 Initial Brief contains numerous assertions of concealment of evidence, improper and unlawful failure to produce evidence, destruction of evidence, misrepresentation, and witness tampering, as well as statements regarding the value of the lawsuit at the time it was tried in Petitioner misrepresents these assertions as being actual facts of this case, when they are actually nothing more than mere allegations by the Petitioner. The citations Petitioner provides in support of these assertions are to allegations made by the Petitioner in her Second Amended Complaint. These allegations are highly disputed and contested and do not represent the facts of this case. 7

15 ISSUES PRESENTED 1. Whether Plaintiff has pled the elements of a cause of action for spoliation of evidence. 2. Whether Florida recognizes a cause of action for firstparty spoliation of evidence. 3. Whether conduct other than destruction or loss of evidence constitutes actionable spoliation of evidence. 4. Whether the litigation privilege provides absolute immunity from civil suit for the actions alleged by the Petitioner against LRMC. 5. Whether a cause of action for spoliation may be brought concurrently with the underlying tort claim. 6. Whether plaintiff can recover the personal injury damages she alleges existed prior to Arthur Myers death through a spoliation of evidence claim. 8

16 SUMMARY OF THE ARGUMENT In this case of first impression, this Court should align with the majority of jurisdictions which have refused to recognize a first-party cause of action for spoliation of evidence. Spoliation is essentially a discovery matter which should be handled by the courts, not through an independent tort action. The available sanctions for spoliation, including default judgment, adequately address spoliation concerns. There are no constitutional concerns implicated by the decision to be rendered in this case. Spoliation of evidence addresses only the destruction or loss of evidence. No cause of action exists in Florida to recover damages for alleged litigation misconduct such as concealment of evidence, witness tampering, misrepresentation, or other similar conduct. Disciplinary remedies and courtimposed sanctions are available to remedy these situations. As announced by this Court, Florida s litigation privilege provides absolute immunity from civil suit for any act occurring during the course of a judicial proceeding so long as the act has some relation to the proceeding. This absolute litigation 9

17 privilege has been applied to bar civil actions alleging litigation-related misconduct similar to the misconduct alleged in this case. The trial court correctly dismissed Counts I-IV of Plaintiff s Second Amended Complaint with prejudice based upon the absolute immunity provided by the litigation privilege. A claim for spoliation of evidence, if it exists, cannot be brought concurrently with the underlying tort claim. A cause of action for spoliation of evidence does not accrue until a party has suffered actual damages, which cannot occur until the underlying suit has concluded. Petitioner has not alleged any significant impairment of her ability to prove her medical negligence claims as a result of spoliation of evidence. Rather, petitioner has alleged that as a result of Arthur Myers death in 1999, her medical negligence claims are not as valuable anymore. An independent spoliation cause of action does not provide as damages the remedy petitioner seeks in this case. Therefore, Counts I-IV were properly dismissed. 10

18 ARGUMENT I. MOST OF PLAINTIFF S ALLEGATIONS ARE NOT COGNIZABLE ELEMENTS OF A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE. In her Initial Brief, Petitioner consistently misrepresents the elements of a cause of action for spoliation of evidence. The third element of a spoliation claim is the destruction of evidence. Continental Ins. Co. v. Herman, 576 So.2d 313 (Fla. 3d DCA 1990); Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088 (Fla. 4th DCA 2001). Rather than quote this element directly from the case law, Petitioner cites the third element as the spoliation of evidence. IB-15. As discussed in subsection III of this brief, the myriad of allegations made by plaintiff other than destruction of evidence, such as concealment of evidence, failure to maintain records, failure to produce evidence, misrepresentation, and witness tampering, are not elements of a viable cause of action for spoliation, which addresses the destruction of evidence. In this regard, 11

19 plaintiff s spoliation claims allege conduct which is not recognized as an element of an actionable spoliation claim. Additionally, the loss alleged to have been caused by the spoliation in this case is not the type of loss for which a spoliation action provides relief. Plaintiff still maintains causes of action (both survival and wrongful death claims) for the alleged medical negligence which has been at issue in this case since its inception. Plaintiff has never asserted that she is unable to prove her medical negligence claims as a result of the alleged spoliation. Rather, plaintiff claims she is unable to prove certain damages which she might have been awarded in the personal injury action had she been successful at the trial in 1997 because Arthur Myers death in 1999 limits her recovery. As discussed further in section VI of this brief, the loss of potential damages associated with the personal injury action due to Arthur Myers death is not recoverable through a spoliation action. II. THIS COURT SHOULD NOT RECOGNIZE A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE AGAINST A DEFENDANT, OR FIRST PARTY, TORTFEASOR. The Briefs filed by Respondent, Wal-Mart Stores, Inc. ( Wal- Mart ) and Amicus Curiae, Florida Defense Lawyers Association ( FDLA ) in Case No. SC03-334, which has been consolidated with this appeal, provide very thorough and well-considered arguments 12

20 against recognition of a cause of action for spoliation of evidence by a first-party tortfeasor. Respondent, LRMC, adopts the arguments made by Wal-Mart and FDLA. Rather than simply rehashing those arguments again, LRMC will address some of the main arguments advanced by Petitioner in her Initial Brief. Contrary to Petitioner s assertion, Florida does not have a long-standing precedent recognizing a cause of action for spoliation of evidence, particularly in the first-party context. This court has never directly considered the issue of whether Florida recognizes a cause of action for spoliation of evidence in the first instance, nor whether Florida recognizes a cause of action for spoliation against a first-party. 5 Whether Florida recognizes a cause of action for first-party spoliation is a matter of first impression for this court. Petitioner s reliance upon Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984) and its progeny for the recognition of an independent tort of spoliation in Florida is seriously undermined by the California Supreme Court s decision in Cedars- 5 In Humana Worker s Comp. Serv. v. Home Emergency Sys., Inc., 842 So.2d 778 (Fla. 2003), this court considered whether coverage for a negligent spoliation claim was provided under the applicable insurance policies at issue. In so doing, this court discussed the nature of the tort of spoliation of evidence. However, this court did not consider the issue of whether the tort of negligent spoliation of evidence is recognized in Florida. 13

21 Sinai Medical Ctr. v. Superior Court, 954 P.2d 511 (Cal. 1998). The Bondu Court relied upon the California decisions of Smith v. Superior Court, 198 Cal. Rptr. 829 (Cal. Ct. App. 1984) and Williams v. California, 664 P.2d 137 (Cal. 1983) to support its recognition of a cause of action for spoliation. The Smith decision was subsequently disapproved by the California Supreme Court in Cedars-Sinai, 954 P.2d 511, and that Court also noted that Williams did not in fact recognize a cause of action for spoliation. Id. The California Supreme Court refused to recognize the independent tort of spoliation of evidence, disapproving any lower court opinions which had recognized the tort. This court should align itself with the California Supreme Court, and the majority of jurisdictions, and refuse to recognize a cause of action for spoliation of evidence, at least in the first-party context where available sanctions, discipline and other remedies deter acts of spoliation and adequately rectify any spoliation concerns. There are no constitutional concerns implicated by the lower courts or this court s decision in this case. The constitutional right of access to courts guaranteed by Article I, Section 21 of the Florida Constitution protects only rights which existed at common law or by statutes prior to the enactment of the Declaration of Rights of the Florida 14

22 Constitution. See McElrath v. Burley, 707 So.2d 836, 839 (Fla. 1st DCA 1998), citing Kluger v. White, 281 So.2d 1, 4 (Fla. 1973); Strohm v. Hertz Corp., 685 So.2d 37, 39 (Fla. 1st DCA 1996), review denied mem., 697 So.2d 512 (Fla.1997); Caloosa Property Owners Ass'n, Inc. v. Palm Beach County Bd. of County Comm'rs, 429 So.2d 1260 (Fla. 1st DCA 1983). It is undisputed that spoliation was not even recognized as a possible cause of action until the Third District Court of Appeal s 1984 decision of Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984). Hence, the constitutional guarantees of Article I, section 21 of the Florida Constitution are not implicated in this case. Nor are equal protection concerns implicated in this case. First-party and third-party spoliators are not similarly situated. First-party spoliators can be sanctioned for spoliation conduct within the litigation; third-party spoliators obviously cannot. Hence, first-party and third-party spoliators are not similarly situated and the Second District s decision does not violate the Equal Protection clause. As the Fourth District recognized in Federal Ins. Co. v. Allister Manuf. Co., 622 So. 2d 1348 (Fla. 4th DCA 1993), [c]ases in which evidence cannot be produced because of inadvertent loss or intentional destruction involve the 15

23 application of Florida Rule of Civil Procedure 1.380, because they are, essentially, discovery violations. Id. at 1350, citing Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987). Discovery violations are matters traditionally handled by the court, and should remain that way. As noted by the Fourth District in Martino and the California Supreme Court in Cedars-Sinai, by creating an independent tort for what is a discovery violation traditionally handled by the courts, a new cause of action could accrue each time a plaintiff loses a lawsuit, for in most cases there is likely to be some piece of potential evidence that is not available at the time of trial. Martino v. Wal-Mart Stores, Inc., 835 So.2d 1251, 1255 (Fla. 4th DCA 2003), quoting Cedars-Sinai, 954 P.2d at 519 (quoting Comment, Spoliation of Evidence: A troubling New Tort, 37 U. Kan. L. rev. 563, 592 (1989)). Contrary to Petitioner s argument, the sanctions, discipline and other remedies available to address a first-party s spoliation of evidence do provide a complete remedy to the opposing party. Spoliation sanctions run the gamut from an adverse inference, Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (1987), to a default judgment against the spoliator. See Sponco Manuf., Inc. v. Alcover, 656 So.2d 629, 16

24 630 (Fla. 3d DCA 1995), citing Rockwell Int l Corp. v. Menzies, 561 So.2d 677 (Fla. 3d DCA 1990); DePuy, Inc. v. Eckes, 427 So.2d 306 (Fla. 3d DCA 1983); see also New Hampshire Ins. Co., Inc. v. Royal Ins. Co., 559 So.2d 102, 103 (Fla. 4th DCA 1990). A default judgment against a defendant spoliator would enable the plaintiff to prevail on the underlying tort claim, thereby providing full redress for the actual injury sustained, rather than only providing redress for the loss of recovery in the underlying case. See Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So.2d 433 (Fla. 3d DCA 2001). Hence, spoliation sanctions more appropriately redress the actual injury. Utilizing spoliation sanctions, rather than creating an independent tort for spoliation, does not trample upon the constitutional right of trial by jury, nor invade the province of the jury to answer factual questions. Although Petitioner cites to Article I, section 22 of the Florida Constitution as requiring a trial by jury, that section applies to proceedings in which, at the time of the adoption of the Constitution, a jury trial was granted. Carter v. State Road Dept., 189 So.2d 793, 795 (Fla.1966); Lussy v. Fenniman, 763 So.2d 1110, 1111 (4th DCA 1999). As already noted, a cause of action for spoliation did not exist in Florida at the time of the adoption of Florida s Constitution; hence, no right to a trial by jury 17

25 for spoliation exists. Further, because spoliation is a discovery violation, Federal Ins. Co., 622 So. 2d at 1350, it is a matter to be handled by the courts, not by a jury. Handling discovery violations has always been within the province of the court, and a spoliation discovery violation should not be any different. Cf. e.g. Thompson v. State, 796 So.2d 511, 519 (Fla. 2003)(citations omitted); Surf Tech Int l, Inc. v. Rutter, 785 So.2d 1280, 1282 (5th DCA 2001)(citations omitted); Royal Netherlands Steamship Co. v. Quinto de Garcia, 489 So.2d 128, 130 (Fla. 3d DCA 1986). III. ONLY THE DESTRUCTION OR LOSS OF EVIDENCE WILL SUPPORT A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE. Plaintiff attempts to classify all of her allegations in Counts I-III as spoliation, which they are not. Spoliation only concerns evidence which is no longer available to the parties to help prove or disprove a case because it has been destroyed or lost. See e.g. Aldrich v. Roche Biomedical Labs, Inc., 737 So.2d 1124, 1125 (Fla. DCA 1999); Moghari v. Anthony Abraham Chevrolet Co., 699 So.2d 278, 279 (Fla. 3d DCA 1997). Spoliation does NOT include concealment of documents, the failure to produce documents which exist, tampering with witness testimony, nor any other allegedly improper discovery conduct. See Green Leaf Nursery v. E.I. Dupont De Nemours and Co.,

26 F.3d 1292, 1308 (11th Cir. 2003), citing Regal Marble, Inc. v. Drexel Investments, Inc., 568 So.2d 1281, 1282 (Fla 4th DCA 1990)(finding no cause of action for the deliberate introduction of alleged false exhibits into evidence in a prior case); Perl v. Omni Int l of Miami, Ltd., 439 So.2d 316, 317 (Fla. 3d DCA 1983); Florida Evergreen Foliage v. E.I. Du Pont De Nemours and Co., 165 F. Supp. 1345, (S.D. Fla. 2001)(concealment of evidence does not form a basis for a claim of spoliation). Petitioner cannot magically create a cause of action for such conduct by simply labeling it spoliation. Petitioner has not cited to any case wherein conduct other than destruction or loss of physical evidence supported an independent cause of action for spoliation of evidence. In Florida, such conduct cannot support an independent cause of action because the litigation privilege provides absolute immunity from civil suit for such conduct, as discussed infra. See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994). Petitioner cites decisions from Maryland, Delaware, and New Jersey in support of her argument that conduct other than destruction or loss of evidence can constitute the basis for a spoliation claim. IB- 36. None of these cases held that the conduct at issue created 19

27 a cause of action for spoliation of evidence. See Rosenblit v. Zimmerman, 166 N.J. 391 (N.J. 2000)(noting New Jersey recognizes an intentional tort action for fraudulent concealment of evidence, and therefore refusing to create a cause of action for spoliation of evidence) 6 ; McCool v. Gehret, 657 A.2d 269 (Del. 1995)(evidence of alleged witness intimidation was admissible as substantive evidence in malpractice claim) 7 ; Shpak v. Schertle, 629 A.2d 763 (Md. Ct. App. 1993)(testimony regarding defendant s threat made against witness testifying against defendant was permitted). In fact, each of these states have rejected an independent cause of action for spoliation of evidence and therefore are not supportive jurisprudence for Petitioner s argument. See Manorcare Health Services, Inc. v. Osmose Wood Preserving, Inc., 764 A.2d 435 (N.J. 2001); Comp. Lucas v. Christian A. Skating Center, Inc., 722 A.2d 1247 (Del. Super. Ct. 1998); Miller v. Montgomery County, 494 A.2d 761, (Md. Ct. App. 1985). IV. EVEN IF A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE AGAINST A FIRST-PARTY TORTFEASOR DOES EXIST UNDER FLORIDA 6 Florida, of course, does not recognize a cause of action for fraudulent concealment and Florida s absolute litigation privilege precludes such claims. See infra, Section III. Jost I. 7 This is exactly the same remedy provided to Petitioner in 20

28 LAW, COUNTS I-IV WERE PROPERLY DISMISSED BECAUSE THERE IS ABSOLUTE IMMUNITY FROM CIVIL SUIT FOR THE ALLEGED CONDUCT. Florida law provides absolute immunity from civil suit for the type of conduct alleged throughout Counts I-IV in the Second Amended Complaint because the alleged conduct occurred during, and is related to, a judicial proceeding. See Levin, 639 So.2d 606 (Fla. 1994); Green Leaf, 341 F.3d 1292; Florida Evergreen Foliage v. E.I. Du Pont De Nemours and Co., 135 F. Supp. 2d 1271, (S.D. Fla. 2001). This court has held that any act occurring during the course of a judicial proceeding is entitled to absolute immunity so long as the act has some relation to the proceeding. Levin, 639 So.2d at 608; accord Green Leaf, 341 F.3d at The Eleventh Circuit recently applied the absolute litigation privilege discussed in Levin to bar a tort action for damages arising out of alleged litigationrelated wrongdoings by the Defendant, similar in nature to the litigation-related misconduct alleged against LRMC in this case. Green Leaf, 341 F.3d The Green Leaf case is instructive to the case at hand and a similar result should be reached in this case. The immunity provided by the absolute litigation privilege extends not only to the parties in the judicial proceeding, but also to the judge, witnesses and counsel. Levin, 639 So.2d at 21

29 609, citing Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992); Cox v. Klein, 546 So.2d 120(Fla. 1st DCA 1989); Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984). This Court, in Levin, 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. Levin, 639 So.2d at 608 (emphasis added). The allegations contained in Counts I-IV of plaintiff s Second Amended Complaint consist entirely of acts alleged to have occurred during the judicial proceeding and alleged to have impacted the outcome of that proceeding. These alleged acts, however misguided, would be afforded absolute immunity because, as pled, they occurred during a judicial proceeding and had some relation to that proceeding. Pursuant to this Court s ruling in Levin, the Plaintiff cannot proceed with a subsequent civil suit against LRMC for alleged misconduct during the underlying litigation. As this Court noted, although misconduct occurring in a legal proceeding does not give rise to a civil cause of action against the one engaging in the alleged misconduct, this does not mean the participant s misconduct goes without remedy. Tortious conduct occurring during litigation is subject to the 22

30 discipline of the courts, the bar association, and possibly the state. Id; see also Green Leaf, 341 F.3d at For example, plaintiff properly utilized the courts to address her claim of witness tampering, and the appellate court provided the plaintiff with an appropriate remedy to address those allegations when it ordered a new trial wherein plaintiff could present evidence to the jury of that conduct which plaintiff believes constituted witness tampering. Additionally, if plaintiff truly believed that documents had not been properly disclosed, plaintiff should have sought appropriate relief from the trial court. 8 Cf. Green Leaf, 341 F.3d at 1302(noting that plaintiffs in that case could have filed a contempt motion before the trial court in the underlying litigation as a remedy for the defendant s misconduct). A party is not immune from punishment for litigation misconduct; rather, the party is simply immune from a civil suit based on that conduct. Nor is the opposing party left without a remedy if litigation misconduct occurs; that remedy simply will not be in the form of a separate civil action. Allowing Petitioner to pursue her subsequent claims for Tortious Interference with a Civil 8 Interestingly, plaintiff never sought any relief from the court for the rest of the alleged misconduct during the initial proceeding. Only after Arthur Myer s death altered Plaintiff s remedy were these additional allegations ever brought forth. 23

31 Action is precisely the strategy this Court intended to preclude by announcing the Levin rule. Green Leaf, 341 F.3d at Petitioner argues that the absolute immunity for litigation conduct only applies when the act is required or permitted by law, and only a qualified litigation privilege exists when the act or conduct is not required or permitted by law. This exact argument was rejected by the courts in Green Leaf, 341 F.3d at 1303 and Florida Evergreen Foliage, 135 F. Supp. 2d at The Green Leaf court noted the breadth of the litigation privilege discussed in Levin, and found that even unlawful misconduct is inclusive in the litigation privilege (though, again, other penalties and remedies for such misconduct do exist). Green Leaf, 341 F.3d at In Florida Evergreen Foliage, the plaintiff argued that absolute immunity was provided in Levin because the conduct was within the applicable rules of procedure, whereas the alleged conduct being considered in Florida Evergreen Foliage was not within the rules of procedure, and therefore, only a qualified immunity existed which was overcome by the allegations. Florida Evergreen Foliage, 135 F. Supp. 2d at The court rejected the plaintiff s argument, noting there is no such distinction 24

32 associated with Florida s absolute immunity for litigation conduct. Id. Petitioner cites to American Nat l Title & Escrow of Fla. Inc. v. The Guar. Title & Trust Co., 810 So.2d 996 (Fla. 4th DCA 2002)( American National II ), Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992) and Stucchio v. Huffstetler, 720 So.2d 288 (Fla. 5th DCA 1998) as support for her proposition that the conduct at issue in this case is, at best, subject to a qualified immunity. Petitioner misconstrues these distinguishable cases. In Stucchio, statements were made about the Plaintiff by the Defendant to a Judge while the defendant was before the judge on an unrelated matter; hence the statements were not made within the course of the judicial proceeding to which they pertained. Stucchio, 720 So.2d at 289. In that situation, the absolute litigation privilege does not apply; only a qualified privilege will apply. Id. This case does not present similar circumstances. As the Eleventh Circuit noted, and this court emphasized in its opinion, Fridovich involved comments made to authorities prior to the institution of criminal charges. Green Leaf, 341 F.3d at This case, and the Levin case, concern conduct 25

33 and statements made during the course of litigation. For this reason, Fridovich is distinguishable. The opinion in American National II fails to illuminate the factual circumstances behind the alleged conspiracy to give false statements to law enforcement authorities: we do not know whether such conduct occurred in the course of a judicial proceeding, and if it did, whether such conduct had some relation to the proceeding, for purposes of a Levin evaluation. Without this information, it is impossible to compare and contrast the holding and outcome in American National II with any other case, including this one. The American National II court did not, however, indicate that its decision was based upon the notion that the conduct at issue was not required or permitted by law, as Petitioner suggests. Further, American National Title & Escrow of Fla., Inc. v. Guarantee Title & Trust Co., 748 So.2d 1054 (Fla. 4th DCA 1999), rev. den. 767 So.2d 453 (Fla. 2000)( American National I ), did not create a rule by which only litigation conduct done pursuant to a court order is immune under the litigation privilege. The fact that the law firm s conduct in American National I was done pursuant to a court order merely supported the fact that the law firms actions had some relation to the legal proceeding; it 26

34 did not establish a new criteria for the application of absolute immunity, as Petitioner argues. This court s analysis of the litigation privilege s applicability to the allegations of misconduct alleged in Counts I-IV of the Second Amended Complaint in this case should comport with the Eleventh Circuit s analysis in Green Leaf and should result in a similar finding that the litigation privilege provides absolute immunity from civil suit for the allegations made by Plaintiff in Counts I-IV of her Second Amended Complaint, thereby precluding those actions. V. IF A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE DOES EXIST UNDER FLORIDA LAW AGAINST A FIRST-PARTY, IT CANNOT BE BROUGHT CONCURRENTLY WITH THE UNDERLYING SUIT FOR NEGLIGENCE. It is well-recognized that a cause of action does not accrue until the last element constituting the cause of action occurs. See e.g. Sussman v. First Financial Title Co. of Fla., 793 So.2d 1066, 1069 (Fla. 4th DCA 2001); Birnholz v. Blake, 399 So.2d 375, 377 (Fla. 3d DCA 1981), citing Heard v. Mathis, 344 So.2d 651, 655 (Fla. 1st DCA 1977). Damages is the final element in a spoliation cause of action. Continental Ins. Co. v. Herman, 576 So.2d 313 (Fla. 3d DCA 1990). A cause of action does not accrue until someone has been damaged by the acts complained of. Penthouse North Assoc., Inc. v. Lombardi, 461 So.2d 1350, 27

35 1352 (Fla. 1985). Until damages are actually incurred, a party cannot state a cause of action.... Airport Sign Corp. v. Dade County, 400 So.2d 828, 829 (Fla. 3d DCA 1981). Until a plaintiff actually incurs damages as a result of alleged spoliation, no cause of action for spoliation can exist. The Second District Court of Appeal correctly recognized that, because of the nature of a spoliation claim, it cannot be brought until the underlying suit has concluded. 9 Jost II, 844 So.2d at 658, citing Townsend v. Conshor, Inc., 832 So.2d 166, (Fla. 2d DCA 2002)(quoting Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So.2d 433, (Fla. 3d DCA 2001). Otherwise, the parties will be forced to litigate a cause of action which hasn t even accrued, and as to which damages have not yet been incurred or established. Cf. Sussman v. First Financial Title Co. of Fla., 793 So.2d 1066, 1069 (Fla. 9 In certain instances, not present in this case, spoliation may result in a complete inability for a plaintiff to proceed with her claim. An example might be lost medical records in a medical malpractice case, without which the expert witness is unable to render a standard of care opinion. In that situation, the plaintiff has lost her potential suit, and a spoliation claim might lie without the any underlying litigation. However, this issue is not before the Court today, as this case is one in which the plaintiff was able to proceed with her medical negligence claim even in the absence of the allegedly spoliated evidence. Plaintiff s experts had no problem providing testimony identifying the alleged medical negligence in this case. 28

36 4th DCA 2001)(because the note was being timely paid, there was no damage despite the fact that the mortgage as recorded was unenforceable; without damages, no cause of action against the title company had accrued); Birnholz, 399 So.2d 375(dismissing a legal malpractice lawsuit where, although the alleged malpractice conduct had occurred, where certain claims were still viable and pending, the plaintiff might never suffer any damage and consequently, it may be that any cause of action against the defendant has yet to accrue). A plaintiff cannot be said to have suffered any damage as a result of spoliation until the plaintiff has lost her cause of action either through (1) an adverse final judgment or (2) due to the inability to bring her claim in the first instance because the spoliation prevents the plaintiff from being able to state a prima facie case. Neither of these situations have occurred in this case. No adverse final judgment has been entered against the Plaintiff on her medical negligence claims, which are still pending. Plaintiff was not only able to bring her medical negligence claims, but she had several experts who were fully capable of testifying as to the medical negligence in this case. If a tort for first-party spoliation does exist in Florida, it should not be actionable until redressable harm has occurred, 29

37 similar to legal malpractice (and other negligence) cases. Cf. Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998); Glucksman v. Persol North America, Inc., 813 So.2d 122 (Fla. 4th DCA 2002); Zuckerman v. Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., 670 So.2d 1051 (Fla. 3d DCA 1996)(a legal malpractice cause of action does not accrue at point in time when malpractice is discovered; rather, it accrues upon establishment of redressable harm). A legal malpractice suit cannot be brought while the underlying case is still pending because no redressable harm occurs until there is an adverse outcome to the client. See Abbott v. Friedsam, 682 So.2d 597, 600 n.1 (Fla. 2d DCA 1996); Chapman v. Garcia, 463 So.2d 528, 529 (Fla. 3d DCA 1985). For the same reason, a spoliation suit should not be able to be brought while the underlying case is still pending. In a legal malpractice case involving alleged litigation malpractice, a subsequent jury must determine whether the underlying case was lost as a result of the attorney s negligent conduct. Likewise, it would present no problem for a subsequent jury to determine whether an underlying case was lost due to spoliation of evidence. VI. PLAINTIFF FAILED TO STATE A CAUSE OF ACTION IN COUNTS I-IV OF HER SECOND AMENDED COMPLAINT BECAUSE NO CAUSE OF ACTION EXISTS TO RECOVER DAMAGES FOR THE ALLEGED LOSS OF ARTHUR MYERS PERSONAL INJURY CLAIM THAT WENT TO VERDICT IN

38 In Counts I-IV of the Second Amended Complaint, Petitioner seeks to recover for the loss of the alleged significant monetary value associated with the original personal injury medical negligence claims, as those claims existed prior to Arthur Myers death. R-953 at 38 & 39; R at 43 & 44; R-957 at 49 & 50; R at 54; IB-26-29, section I(C). Plaintiff maintains Arthur Myers life expectancy was approximately twenty-five years when this case was initially tried in early R-953 at 39; R-955 at 44; R-957 at 50; R at 54. In actuality, Arthur Myers only lived for another two and a half years, well short of plaintiff s suggested twenty-five year life expectancy. R ; R-946 at 19. Plaintiff alleges that when he was alive, Mr. Myer s had a significant medical malpractice claim against LRMC in excess of $4.5 million for economic damages and more than $5 million for past and future pain and suffering, disfigurement and loss of the enjoyment of life, based upon plaintiff s presumed, and ultimately inaccurate, twenty-five year life expectancy for Arthur Myers. R at 20; see also RB-3. Plaintiff claims that as a result of Arthur Myers subsequent death, his prior claim for personal injuries has been significantly impaired, if not largely eliminated, R-953 at 38(emphasis 31

39 added). Plaintiff then seeks to recover, as damages, the alleged value of Arthur Myers personal injury claims as they existed prior to his death, inclusive of millions of dollars for future damages which were never incurred by Arthur Myers. In effect, Plaintiff seeks to recover several millions of dollars from LRMC for twenty-three years of economic and emotional damages suffered by Arthur Myer s after his death. To suggest such a thing is simply outrageous and borders on fraudulent. Petitioner argues she is entitled to recover all damages lost during the underlying claim as a result of the alleged spoliation, including the future damages which were alleged at trial. RB-26; RB Petitioner argument is fundamentally flawed. Petitioner never lost the original, underlying personal injury claim; when the new trial was granted, those claims remained in full force and effect, and whatever alleged value those claims had still existed. It was Arthur Myers subsequent death which converted his claims into survivorship and/or wrongful death claims. Under the survivorship Act, however, Arthur Myers personal injury claims still exist because they survive his death. Section , Florida Statutes. Arthur Myers personal injury claims survived his death and the Plaintiff is still entitled to recover the true 32

40 value of those claims. 10 Accordingly, plaintiff never lost the personal injury claims and cannot state some nebulous cause of action against Respondent seeking to recover for a loss which has not occurred. Plaintiff does not claim that the alleged spoliation impairs her ability to prove the underlying medical negligence nor the injuries caused by that negligence. Rather, plaintiff claims that the alleged spoliation did not enable her to prove that negligence and those damages at an earlier point in time (i.e. at trial in 1997), while Arthur Myers was still alive, and as a result of Arthur Myers subsequent death, her claims are now not worth as much money. A spoliation action does not remedy a decrease in the value of a claim due to the death of the party; a spoliation action only remedies a significant impairment in the ability to prove a cause of action, a situation which has not been alleged in this case. Plaintiff seeks to litigate this case without recognition of Arthur Myers death, and to recover damages without taking into account the fact that Arthur Myers has died. Parties 10 Obviously, a person is not entitled to any pain and suffering damages or economic damages beyond their death (with the exception of funeral expenses which the statute provides for); damages pursuant to the survival statute cease at the date of death. Sinclair Refining Co. v. Butler, 190 So.2d 313, 316 (Fla. 1966)(external citations omitted). 33

41 cannot litigate a case as though a party s death did not occur. This cuts both ways: if a plaintiff had a relatively small amount of damages in a personal injury action (because they seemingly recover and go back to work), and the defendant appeals and a new trial is granted due to some litigationrelated conduct on the part of the plaintiff, and the plaintiff subsequently dies as a result of the negligence, the defendant doesn t get the opportunity to try the case as though the death did not occur, even if the wrongful death claims result in much higher monetary damages. When asserting a spoliation claim, a party is seeking to recover for the resulting inability to successfully prove a cause of action. See Humana Worker s Comp. Serv. V. Home Emergency Serv., Inc., 842 So.2d 778, 781 (Fla. 2003)(emphasis added). Here, plaintiff is not seeking to recover for her inability to prove the medical negligence cause of action 11 ; rather, she seeks to recover for her inability to prove certain damages she once thought would be associated with Arthur Myer s medical negligence claim. Even if a cause of action for firstparty spoliation is recognized in Florida, Petitioner 11 As already stated, Arthur Myers personal injury claims continue to be prosecuted by the Plaintiff via section , Florida Statutes. 34