The Appellate Division, First Department of the New York State Supreme Court recently held that a personal injury plaintiff cannot be sanctioned for spoliation of evidence for undergoing surgical repair of an allegedly injured body part after failing to appear for a duly-designated independent medical examination (IME) in Gilliam v. Uni Holdings, 2021 NY Slip Op 06798 (1st Dep’t 2021). The court explained that penalizing plaintiffs for choosing to undergo treatment to physically recover from injuries would impermissibly infringe on plaintiffs’ personal freedoms. This rationale appears incompatible with plaintiffs’ duty to mitigate damages through medical treatment because that also arguably infringes on plaintiffs’ right to bodily autonomy.
SPOLIATION SANCTIONS AND THE GILLIAM CASE
In New York, a party’s willful or negligent destruction or substantial alteration of evidence constitutes spoliation. A finding of spoliation will support an adverse inference instruction that permits or requires the jury to conclude the destroyed or altered evidence would have hurt the party that destroyed it. See New York Pattern Jury Instruction (PJI) 1:17.
In Gilliam, the plaintiff allegedly suffered a bulging disc in her lumbar spine and other injuries as a result of a ceiling collapse in the defendant’s apartment building. She failed to appear at the first IME the defendant scheduled and thereafter underwent surgery to repair the bulging disc. The Bronx County Supreme Court determined the injured body part was crucial evidence which the plaintiff was required to preserve and make available for review. The court issued spoliation sanctions because the surgery altered this evidence before the defendant could have it examined.
On appeal, the First Department reversed, determining that “[p]laintiffs must be free to determine when to undergo medical treatment based on personal factors.” The court noted that a human body is fundamentally different from the inanimate evidence that is routinely subject to spoliation sanctions. The decision explained that obligating plaintiffs to preserve injuries in their bodies is antithetical to the belief in personal freedom.
SPOLIATION SANCTIONS FOR SURGERY OUTSIDE THE FIRST DEPARTMENT
There are few other New York decisions determining whether sanctions may be imposed for having surgery on an allegedly injured body part before appearing for an IME. Gillam essentially overrules two previous decisions by courts in the First Department: Martinez v. Newlson, 64 Misc.3d 225, 226 (Sup. Ct. Bronx County 2019) (spoliation sanctions may be imposed for a pre-IME surgery) and Montes v. 660 Park Ave. Corp., 2021 NY Slip Op 32140(U), *9 (Sup. Ct. New York County 2021) (the condition of a plaintiff’s body is capable of being spoliated).
In contrast to Gilliam, the Queens County Supreme Court held that a plaintiff can commit spoliation of evidence by undergoing a “nonemergency and non-life-threatening surgery” that deprives defendants of a court-ordered IME in Mangione v. Jacobs, 37 Misc.3d 711, 723 (Sup. Ct. Queens County 2012), aff’d on other grounds, 121 A.D.3d 953 (2d Dep’t 2014). However, on appeal, the Second Department did not address the propriety of spoliation sanctions and affirmed sanctions instead due to the plaintiff’s “willful and contumacious” failure to submit to court-ordered IMEs.
THE MITIGATION OF DAMAGES DOCTRINE CAN PENALIZE PERSONAL CHOICE
Gilliam’s protection of plaintiffs’ right to choose whether to have a medical procedure appears inconsistent with holding plaintiffs under a duty to mitigate damages through reasonable means such as by undergoing a safe medical operation. The mitigation of damages doctrine allows the jury to be instructed that a person cannot recover for damages they could have avoided. See, e.g., PJI 2:325.
Gilliam prevents the jury from being instructed to view evidence of a plaintiff’s injury negatively due to the choice to have surgery. Following Gilliam, courts may determine the jury cannot be instructed to negatively view the choice to not have surgery, as that too would arguably infringe on a plaintiff’s determination if or when to undergo medical treatment.
Ultimately, plaintiffs exercise bodily autonomy whether they choose to have medical treatment or choose to not have medical treatment. In protecting that choice over plaintiffs’ obligations to preserve evidence and appear for IMEs, Gilliam may lead courts down a path towards eliminating the mitigation of damages defense to prevent interference with plaintiffs’ personal freedoms.
COURTS SHOULD FIND THE MITIGATION OF DAMAGES DEFENSE SURVIVES GILLIAM
Courts should not choose to extend Gilliam to invalidate plaintiffs’ duty to mitigate damages. Plaintiffs waive certain rights when they choose to commence an action for damages to their mental or physical condition, such as confidentiality over medical records and physician communications. See, e.g., Hoenig v. Westphal, 52 N.Y.2d 605, 609 (1981). Courts should find that plaintiffs similarly waived the right to decide not to undergo procedures that bear on the damages they seek, as that decision also relates to the mental or physical condition for which plaintiffs seek to recover.
Courts should also draw a distinction between the choice to have versus the choice to not have a medical operation: having it is consistent with the plaintiffs’ duty to mitigate damages, whereas foregoing it is irreconcilable with fulfilling that duty. In this way, Gilliam can be read to determine the duty to mitigate damages is so important that it overrides plaintiffs’ other discovery obligations, such as preserving evidence and appearing for IMEs.
The Gillam decision suggests that the mitigation of damages defense is in jeopardy because courts may find it impermissibly penalizes plaintiffs for choosing what to do with their bodies. Courts should decline to make the extension. Plaintiffs waive certain rights by seeking damages for personal injuries and should not be permitted to ask for recovery from defendants for injuries from which plaintiffs themselves choose not to recover.