THE SUPREME COURT OF FLORIDA KAYREN P. JOST, as Personal ) Representative of the Estate of Arthur Myers, Deceased ) Case Number: On Appeal from the Second Petitioner/Plaintiff, ) District Court of Appeal State of Florida vs. ) Case No: 2D01-4549 LAKELAND REGIONAL MEDICAL ) LT No.: D/85; GCG 95-3065 CENTER, INC., a corporation; AMERICAN CONTINENTAL INSURANCE COMPANY, a corporation; AMIR AHMAD, M.D.; and ) AMIR AHMAD, M.D., P.A., a professional association, ) Respondent/Defendant ) PETITIONER S JURISDICTIONAL BRIEF LAW OFFICE OF W.C. GENTRY W.C. Gentry, Esquire One Independent Drive, Suite 1701 Jacksonville, FL 32202 (904) 356-4100 AND CORINNE C. HODAK, P.A. By: Corinne C. Hodak, Esquire Florida Bar No: 817864 1920 San Marco Boulevard Jacksonville, FL 32207 (904) 399-2008 Attorneys for Appellant
TABLE OF CONTENTS Page Table of Contents... Table of Citations... i ii Statement of the Case and Facts... 1 Summary of Argument... 2 Jurisdictional Statement... 3 Argument... 3 A. The decision of the Second District Court of Appeal in this case expressly and directly conflicts with Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3 rd DCA 1984) and, therefore, this Court has jurisdiction to hear this appeal on the merits and it should exercise its discretion in favor of doing. so.................................3 B. The decision of the Second District Court of Appeal in this case expressly and directly conflicts with Miller v. Allstate Ins. Co., 573 So.2d 24 (Fla. 3 rd DCA 1990) and Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4 th DCA 2001) rev. den. 805 So.2d 810 (Fla. 2001), and, therefore, this Court has jurisdiction to hear this appeal on the merits and it should exercise its discretion in favor of doing so.... 6 Conclusion... 8 Certificate of Compliance... 9 Certificate of Service... 9
TABLE OF CITATIONS CASES Page Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3 rd DCA 1984)... 1, 2, 3 4, 5 Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088 (Fla. 4 th DCA 2001)... 5 Jost v. Ahmad, 730 So.2d 708 (Fla. 2 nd DCA 1999)... 1 Martino v. Wal-Mart Stores, Inc., 28 Fla. L. Weekly D321 (Fla. 4 th DCA Jan. 29, 2003)... 1, 2, 4 8 Miller v. Allstate Ins. Co., 573 So.2d 24 (Fla. 3 rd DCA 1990)... 2, 6, 7 8 Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4 th DCA 2001) rev. den. 805 So.2d 810 (Fla. 2001)... 2, 5, 6 7, 8 St. Mary s Hosp., Inc. v. Brinson, 685 So.2d 33 (Fla. 4 th DCA 1996)... 5 RULES AND STATUTES Article V, Section 3 (b)(3), Fla. Const.... 3 Rule 9.030(a)(2)(A)(iv), Fla. R. App. P.... 3
STATEMENT OF THE CASE AND FACTS This is a medical malpractice case alleging Arthur Myers suffered permanent brain damage as a result of the negligence of Dr. Ahmad and Lakeland Regional Medical Center (hereinafter LRMC ). In Jost v. Ahmad, 730 So.2d 708 (Fla. 2 nd DCA 1999), the verdict for defendants was reversed because the trial court failed to admit evidence of defendants witness tampering. Jost, 730 So.2d at 710. On remand, plaintiff amended her Complaint to join ACIC, the insurer for defendant Lakeland Regional Medical Center (LRMC), and added counts for spoliation of evidence against both LRMC and ACIC. A.2. The trial court dismissed the claims of spoliation of evidence and a second appeal ensued. In affirming the trial court s dismissal of the spoliation of evidence claims against LRMC, the Second District Court of Appeal expressly aligned itself with the Fourth District s decision in Martino v. Wal-Mart Stores, Inc., 28 Fla. L. Weekly D321 (Fla. 4 th DCA Jan. 29, 2003) (which is now before this Court on conflict jurisdiction) 1. A.4. The Second District also determined that the spoliation allegations against ACIC were properly dismissed because they would not be ripe until the underlying medical malpractice claim was resolved. A.4-5. The court also held that unless evidence was destroyed (as opposed to hidden), no spoliation claim would lie. A.4-5. Petitioner/Plaintiff has timely sought 1 The Martino court certified conflict on this issue with Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3 rd DCA 1984) and this Court has taken jurisdiction to review the conflict. Martino v. Wal-Mart Stores, Inc., Florida Supreme Court, Case No. SC03-334. 1
to invoke this Court s conflict jurisdiction. SUMMARY OF ARGUMENT By its decision, the Second District Court of Appeal expressly and directly departed from decisions of other District Courts of Appeal regarding spoliation of evidence and established new parameters for this recognized cause of action. In determining that an action for spoliation of evidence would not lie against a spoliator who was the defendant in the underlying action, the Second District expressly adopted Martino v. Wal-Mart Stores, Inc., 28 Fla. L. Weekly D321 (Fla. 4 th DCA Jan. 29, 2003), and acknowledged direct conflict with the decision in Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3 rd DCA 1984). This Court has exercised conflict jurisdiction to review the decision in Martino v. Wal-Mart Stores, Inc., Case No. SC03-334, and it is respectfully submitted that this Court should review this corollary decision of the Second District adopting Martino. Furthermore, the Second District s decision that a cause of action for spoliation cannot be brought concurrently with the underlying tort claim is in direct conflict with the decision of the Third District in Miller v. Allstate Ins. Co., 573 So.2d 24 (Fla. 3 rd DCA 1990) and the Fourth District in Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4 th DCA 2001) rev. den. 805 So.2d 810 (Fla. 2001). The Second District also determined, contrary to the policy of the decisions recognizing a cause of action for spoliation of evidence, that no claim may be brought for depriving a litigant of evidence through concealment, as opposed to outright 2
destruction of evidence. Because the Second District Court of Appeal s decision expressly and directly conflicts with decisions of other District Courts of Appeal on two critical issues and seeks to redefine the Florida jurisprudence of spoliation of evidence, it is respectfully submitted that this Court should exercise its discretionary jurisdiction to resolve the conflicts and establish proper parameters for protecting litigants whose right of recovery has been eliminated or significantly impaired by the wrongful conduct of another. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal on the same point of law. Article V, Section 3 (b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv). ARGUMENT A. The decision of the Second District Court of Appeal in this case expressly and directly conflicts with Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3 rd DCA 1984) and, therefore, this Court has jurisdiction to hear this appeal on the merits and it should exercise its discretion in favor of doing so. In it s Opinion, the Second District relied upon and expressly aligned itself with the decision of the Fourth District in Martino v. Wal-Mart Stores, Inc., 28 Fla. L. Weekly D321 (Fla. 4 th DCA Jan. 29, 2003), which held that an independent cause of 3
action for spoliation of evidence is unnecessary and will not lie where the alleged spoliator and the defendant in the underlying litigation are one and the same. A.4. Applying Martino, the Second District held that since LRMC is the defendant in the underlying cause of action, we affirm the dismissal of the four counts of the amended complaint dealing with spoliation of evidence. A.4. Conversely, the Third District Court of Appeal has held that, an action [for spoliation of evidence] should lie against a defendant which, as here, stands to benefit by the fact that the prospect of successful litigation against it has disappeared along with the crucial evidence. Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla. 3 rd DCA 1984). Indeed, when the Second District adopted Martino, it recognized the conflict with Bondu. A.4. The Martino court recognized that its holding was in conflict with Bondu and certified conflict with Bondu. Martino, 28 Fla. L. Weekly at D321. This Court has accepted jurisdiction in Martino and it is respectfully submitted that this Court should also exercise its discretionary jurisdiction over this decision. The Second District s decision that an action for spoliation of evidence will not lie when the alleged spoliator and the defendant in the underlying litigation are one and the same is also in direct conflict with earlier decisions of the Fourth District in St. Mary s Hosp., Inc. v. Brinson, 685 So.2d 33 (Fla. 4 th DCA 1996) (judgment against the allegedly negligent hospital was affirmed on a spoliation of evidence cause of action where the hospital destroyed critical evidence); Strasser v. Yalamanchi, 783 4
So.2d 1087 (Fla. 4 th DCA 2001) (defendant sued for breach of contract could be liable for spoliation of evidence during the course of the litigation which impaired plaintiff s ability to prove the breach of contract claim); and Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088 (Fla. 4 th DCA 2001) (defendant Publix was properly sued for strict liability and spoliation of evidence where it failed to retain the broken pieces of an exploding bottle after it took custody of the evidence). Because the holding of the Second District in this case is contrary to the previously established law of Florida, it is respectfully submitted that the efficient administration of justice would be best served by this Court taking jurisdiction and resolving these conflicting decisions and defining the parameters of this important cause of action. 2 B. The decision of the Second District Court of Appeal in this case expressly and directly conflicts with Miller v. Allstate Ins. Co., 573 So.2d 24 (Fla. 3 rd DCA 1990) and Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4 th DCA 2001) rev. den. 805 So.2d 810 (Fla. 2001), and, therefore, this Court has jurisdiction to hear this appeal on the merits and should exercise its discretion 2 Other than the clear and direct conflict among the decisions of the District Courts, there are strong public policy reasons for the Court to exercise jurisdiction in this case. Fundamental to our jury system is the right of all litigants to a fair trial. If there were no cause of action for spoliation of evidence against a defendant, the litigant s fundamental rights could be rendered illusory. As noted in Bondu v. Gurvich, who, other than a litigant has the greatest incentive to spoliate evidence? Sanctions and adverse jury instructions do not cure the harm to a litigant who no longer has crucial evidence or whose claim has been extinguished. The Florida Bar acting on a complaint can only sort out what is before it and, while it can discipline attorneys, it cannot make the injured litigant whole. It is respectfully submitted that it is timely for these and other policy considerations and the relative impact and effectiveness of various remedies for abuse of the civil justice system to be addressed by this Court. 5
in favor of doing so. By its decision, the Second District held that the claims for spoliation of evidence against ACIC could not be brought concurrently with the underlying cause of action. A.5. Specifically, it held that a spoliation of evidence claim against the defendant s insurer, ACIC, should be dismissed without prejudice because we believe that Ms. Jost s claim against ACIC is premature. A.4-5. The court s decision that the cause of action for spoliation of evidence cannot be raised until the underlying claim is resolved is in conflict with Miller v. Allstate Ins. Co., 573 So.2d 24 (Fla. 3 rd DCA 1990) and Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4 th DCA 2001) rev. den. 805 So.2d 810 (Fla. 2001). In Miller, the court recognized a cause of action for spoliation of evidence where defendant Allstate Ins. Co. took possession of an automobile involved in an accident, agreed to preserve it, but instead sold it to a salvage yard where it was destroyed, leaving the plaintiffs unable to prove that the accident was caused by a defect in the automobile. Contrary to the decision below of the Second 6
District, the Third District held that the best procedure would be to bring the spoliation claim and the underlying claim (if it still had any viability) in the same proceeding, before the same jury, at the same time: For reasons of judicial economy, and to prevent piecemeal litigation, we see no reason to wait for a final judgment in the underlying lawsuit before bringing an action for the destruction claim. We agree with the reasoning in Smith v. Superior Court, 151 Cal. App. 3d at 498, 198 Cal. Rptr at 834, that a jury trying the concurrent claims in a single proceeding may be in the best position to determine issues of causation and damages. (citation omitted). Miller, 573 So.2d at 28, ftnt 7. Later, in Strasser v. Yalamanchi, 783 So.2d 1087, 1094-95, the Fourth District Court of Appeal directly addressed the issue of whether the same jury should be permitted to hear all the evidence and decide the spoliation claim before deciding the underlying claim. By its decision, and contrary to the Second District s decision below, the Fourth District upheld not only trying the claims together, but submitting the spoliation claim prior to the jury addressing the underlying cause of action. In that case, the court held: A party significantly impaired by the destruction of evidence may still be able to prevail in an action for breach of contract on the basis of existing evidence, albeit to a lesser extent and for reduced damages. By entitling Yalamanchi to certain evidentiary presumptions, the spoliation claim permits recovery for those missing damages that but for appellant s destruction of evidence, Yalamanchi otherwise would have been able to prove. 7
Strasser, 783 So.2d at 1094-5. It is respectfully submitted that the Second District s holding in this case that plaintiff must try the cause of action against the tortfeasor LRMC before being allowed to assert a cause of action for spoliation of evidence against ACIC is in direct conflict with the decisions of the Third District in Miller and the Fourth District in Strasser. Respectfully, this Court should review these issues regarding spoliation of evidence, resolve the conflicts and give guidance as to the scope and applicability of this cause of action. CONCLUSION The Second District Court of Appeal s holdings in this case that a cause of action for spoliation of evidence cannot lie against a defendant in the underlying tort claim and that the spoliation claim cannot be brought concurrently with the underlying action contradicts the preexisting law of Florida and is in conflict with decisions of both the Third and Fourth District Courts of Appeal. This Court has recently accepted jurisdiction in Martino v. Wal-Mart Stores, Inc., 28 Fla. L. Weekly D321 (Fla. 4 th DCA 2003), currently before this Court, Case No. SC03-334, to address the first issue. Clarity in the law regarding whether a litigant can bring a spoliation of evidence claim against a defendant who destroys evidence and whether that claim can be brought concurrently with the underlying cause of action is necessary to provide predictability for litigants and trial courts. In order to provide certainty to litigants and 8
promote the orderly and efficient administration of justice, these issues should be timely addressed. This Court clearly has discretionary jurisdiction to review the decision below. It is respectfully submitted that this Court should take jurisdiction of this case and define the applicability and parameters of the rights of litigants whose right of recovery has been eliminated or significantly diminished by the wrongful conduct of the adverse party. CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Brief uses Times New Roman 14-point font and complies with the Font requirements of Rule 9.210(a)(s), Florida Rules of Appellate Procedure. ATTORNEY CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to RONALD H. JOSEPHER, ESQ., Josepher & Batteese, P.A., First Union Plaza, Suite 1190, 100 South Ashley Drive, Tampa, FL 33602, Attorneys for Amir Ahmad, M.D. and Amir Ahmad, M.D., P.A.; TRICIA B. VALLES, ESQ., Hahn, Morgan & Lamb, P.A., 2701 N. Rocky Point Drive, Suite 410, Tampa, FL 33607, Attorneys for Lakeland Regional Medical Center, Inc.; RAYMOND T. ELLIGETT, JR., ESQ., Schropp, Buell & Elligett, P.A., 3003 W. Azeele Street, Suite 100, Tampa, Florida 9
33609, Attorneys for American Continental Insurance Company; and WESLEY A. FINK., ESQ., Fink & Sweet, P.O. Box 1866, Ormond Beach, Florida 32175-3502; by U. S. Mail, this day of June, 2003. ATTORNEY 10
APPENDIX A. Jost v. LRMC, 2D01-4549 (FL 2 nd DCA), Opinion issued 03/12/03, Opinion rendered 04/23/03, Conformed Copy 11