1

SUPREME COURT OF FLORIDA

CASE NO.: SC03-956Lower Tribunal No.: 2D01-4549

KAYREN P. JOST, ETC. vs. LAKELAND REGIONALMEDICAL CENTER, INC., ETC., ET AL.

Petitioner(s) Respondent(s)

ON APPEAL FROM THEDISTRICT COURT OF APPEAL, SECOND DISTRICT

STATE OF FLORIDA

PETITIONER’S INITIAL BRIEF

LAW OFFICE OF W. C. GENTRY, P.A. CORINNE C. HODAK, ESQUIREW. C. Gentry, Esquire Florida Bar No. 817864Florida Bar No. 137134 1920 San Marco BoulevardJennifer Kolinski Millis, Esquire Jacksonville, FL 32207Florida Bar No. 0182060 (904) 399-2008One Independent Drive, Suite 1701 (904) 399-2980 FacsimileJacksonville, Florida 32202(904) 356-4100 WESLEY A. FINK., ESQUIRE(904) 358-1895 Facsimile Fink & Sweet

P.O. Box 1866Ormond Beach, Florida 32175-3502

ATTORNEYS FOR PETITIONER

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TABLE OF CONTENTS

DESCRIPTION PAGE

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE AND THE FACTS . . . . . . . . . . . . . . . . . . . . . 1

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

I. PLAINTIFF HAS PLED THE ESSENTIAL ELEMENTS OF A CAUSE

OF ACTION FOR SPOLIATION OF EVIDENCE. . . . . . 15

II. A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE SHOULD LIE

AGAINST ANY PARTY THAT WRONGFULLY DEPRIVES A CLAIMANT OFCRITICAL EVIDENCE REGARDLESS OF WHETHER THE SPOLIATOR IS

A THIRD PARTY TO THE CLAIM OR THE TORTFEASOR WHO BENEFITSFROM THE SPOLIATION. . . . . . . . . . . . . . . . . . . . . . 16

A. Consistent with this Court’s policy of preserving and protectingthe integrity of the judicial process and the FloridaConstitutional Right to Access to Courts, Florida Jurisprudencehas long recognized a cause of action against any wrongdoerwho significantly impairs a plaintiff’s prospective civil action. . 16

B. The Second District’s adoption of the Fourth District’s rationalein Martino v. Wal-mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th

DCA 2003), that a cause of action for spoliation of evidence is“unnecessary” because “the adverse inferences” and “otheravailable sanctions” will remedy the wrong is, respectfully,naive, misguided and insufficient to change Floridajurisprudence established twenty years ago in Bondu v.Gurvich, 473 So. 2d 1307 (Fla. 3rd DCA 1984). . . . . . . . . . . . . .20

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C. When a plaintiff’s ability to prove her underlying claim issubstantially impaired due to the absence of spoliated evidence,only the recovery of all damages lost during the underlyingclaim will make the plaintiff whole. . . . . . . . . . . . . . . . . . . . . . . 26

III. A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE ACCRUES AT

THE TIME OF THE WRONGFUL CONDUCT AND, IF KNOWN, MAY BE

BROUGHT IN CONJUNCTION WITH THE CAUSE OF ACTION WHICHHAS BEEN IMPAIRED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 29

IV. THE PUBLIC POLICY OF THE STATE OF FLORIDA REGARDINGSPOLIATION OF EVIDENCE SHOULD APPLY TO ALL SPECIES OF

EVIDENCE WHICH HAVE BEEN WRONGFULLY CONCEALED TO THESIGNIFICANT IMPAIRMENT OF A PARTY’S CAUSE OF ACTION. . . . .. . . . . 32

V. THERE IS NO “LITIGATION PRIVILEGE” FOR A PARTY, ITS INSURER

OR THEIR COUNSEL TO CONCEAL OR DESTROY EVIDENCE BYENGAGING IN WRONGFUL ACTS IN VIOLATION OF LAW AND RULESOF COURT. . . . . 37

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

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Table of Citations

CASE PAGE

American National Title and Escrow of Florida, Inc.v. The Guaranty Title and Trust Co.,810 So. 2d 996 (Fla. 4th DCA 2002) . . . . . . . . . . . . . . . . . . . . . . . .39, 40, 41

American Tobacco Co. v. Fla.,697 So. 2d 1249 (Fla. 4th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Ange v. State,123 So. 916 (Fla. 1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38

Bondu v. Gurvich,473 So.2d 1307 (Fla. 3rd DCA 1984) . . . . . . . . . 9, 11, 16, 17, 18, 25, 35, 39

Boyd v. Travelers Ins. Co.,652 N.E. 2d 267, 272 (Ill. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 31

Brown v. City of Delray Beach,652 So.2d 1150 (Fla. 4th DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 28

Builder’s Square, Inc. v. Shaw,755 So.2d 721, 724-5 (Fla. 4th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . 26,27

Callahan v. Stanley Works,703 A. 2d 1014, 1019 (N.J. Law Div. 1997) . . . . . . . . . . . . . . . . . . . . .29, 31

Continental Ins. Co. v. Herman, 576 So. 2d 313, 315 (Fla. 3d DCA 1990),rev. den. 598 So. 2d 76 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

DiGiulio v. Prudential Prop. & Cas. Co.,710 So. 2d 3 (Fla. 4th DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Fla. Bar v. Cox,794 So. 2d 1278, 1286 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

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Fridovich v. Fridovich,598 So.2d 65 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Gore v. Harris,773 So. 2d 524, 527 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Green Leaf Nursery v. E.I. DuPont de Nemours and Co.,341 F.3d 1292, 1308 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . .33, 38

Hagopian v. Publix Supermarkets, Inc.,788 So. 2d 1088 (Fla. 4th DCA 2001), rev. den. 817 So. 2d 849 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . 15, 18, 29

Humana Worker’s Comp. Serv. v. Home Emergency Serv., Inc.,842 So. 2d 778, 781 (Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Jost v. Ahmad, 730 So.2d 708 (Fla. 2nd DCA 1998),rev. den., 743 So.2d 508 (Fla. 1999) (“Jost I”) . . . . . . 1, 2, 3, 4, 5, 15, 34, 36

Jost v. Lakeland Regional Medical Center,344 So. 2d 656, 657 (Fla. 2nd DCA 2003) (“Jost II”). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8, 9, 11, 12, 13, 17, 23, 25, 29, 32, 33

Joubert v. State,847 So. 2d 1056 (Fla. 3d DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Lasky v. State Farm Ins. Co.,296 So. 2d 9, 18 (Fla. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchellv. United States Fire Ins. Co.,639 So.2d 606 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38, 39

Liberty Nat’l Life Ins. Co. v. Sanders,792 So.2d 1069 (Ala. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Lincoln Ins. Co. v. Home Emergency Serv., Inc.812 So. 2d 433 (Fla. 3d DCA 2001)rev. den. 833 So. 2d 773 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 35

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Martino v. Wal-mart Stores, Inc.,835 So. 2d 1251 (Fla. 4th DCA 2003) . . . . . 6, 8, 9, 11, 12, 13, 17, 24, 25, 26

McCool v. Gehret,657 A.2d 269 (Del. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Meyer v. McDonnell,392 A.2d 1129 (Md. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Miller v. Allstate Ins. Co. (“Miller I”),573 So. 2d 24 (Fla. 3d DCA 1990)rev. den. 581 So. 2d 1307 (Fla. 1991). . . . . . . 7, 17, 18, 26, 27, 28, 29, 30, 31

Miller v. Allstate,650 So. 2d 671 (Fla. 3d DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . .29, 30, 31

Murray v. Regier,27 Fla. L. Weekly S1008, n. 5 (Fla. Dec. 5, 2002) . . . . . . . . . . . . . . . . . . 32

Nordyne, Inc v. Fla. Mobile Home Supply, Inc,625 So. 2d 1283, 1286 (Fla. 1st DCA 1993) . . . . . . . . . . . . . . . . . . . . . . . . 26

N. Fla. Women’s Health and Counseling Serv., Inc. v. State,28 Fla. L. Weekly S549 (Fla. July 10, 2003) . . . . . . . . . . . . . . . . . . . . . . . 20

Palm Harbor Special Fire Control Dist. v. Kelly,516 So. 2d 249, 251 (Fla. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Perkins v. Pare,352 So. 2d 64, 65 (Fla. 4th DCA 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Perry v. Schlumbrecht,724 So. 2d 1239 (Fla. 2d DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Public Health Trust of Dade County v. Valcin,507 So. 2d 596, (Fla. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

Ralph v. Daytona Beach,471 So. 2d 1 (Fla. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

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Rosenblit v. Zimmerman,766 A.2d 749 (N.J. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 36

Rykiel v. Rykiel,838 So. 2d 508 (Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337, 1339 (Fla. 3rd DCA 1979) . . . . . . . . . . . . . . . . . . . . . . . . .28

Shafran v. Parrish,787 So. 2d 177 (Fla. 2d DCA 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Shpak v. Schertle,629 A.2d 763, 772 (Md. 1993), cert. den. 634 A.2d 62 (Md. 1993) . . . . . . 36

Smith v. Dep’t of Ins.,507 So. 2d 1080, 1088 (Fla. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Sobi v. Fairfield Resorts, Inc., 846 So. 2d 1204, 1206-7 (Fla. 5th DCA 2003) . . . . . . . . . . . . . . . . . . . . . . 14

St. Mary’s Hosp., Inc. v. Brinson,685 So.2d 33 (Fla. 4th DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Strasser v. Yalamanchi,783 So.2d 1087, 1093 (Fla. 4th DCA 2001),rev. den. 805 So.2d 810 (Fla. 2001) . . . . . . . . . . . . . .7, 18, 27, 29, 30, 33, 34

Stucchio v. Huffstetler,

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720 So. 2d 288 (Fla. 5th DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Swain v. Curry, 595 So. 2d 168 (Fla. 1st DCA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Torres v. Matsushita Elec. Corp.,762 So. 2d 1014 (Fla. 5th DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . .22, 23

Yoder v. Kuvin,785 So. 2d 679 (Fla. 3d DCA 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Viviano v. Kroll,597 A.2d 543, (NJ Super. Ct. 1991) . . . . . . . . . . . . . . . . . . . . . . . .36, 41, 42

Wilson v. News-Press Publ’g Co.,738 So. 2d 1000 (Fla. 2d DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

V. RULES AND STATUTES

Fla. Stat. §46.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 28

Fla. Stat. §768.21(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

VI. OTHER AUTHORITIES

Article I, § 2, Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 19

Article I, § 21, Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Article I, § 22, Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Black’s Law Dictionary 1573 (Rev. 4th Ed. 1968) . . . . . . . . . . . . . . . . . . . . . . . . .27

Florida Standard Jury Instructions in Civil Cases 2.1. . . . . . . . . . . . . . . . . . . . . . 36

1 Cites to the Appendix are referred to as “(A. ___)”. Cites to the paragraphsof the Second Amended Complaint are referred to as “(¶. ____)”. All record citesrefer to the Record in App. 2DO1-4549, Vol. I, and page numbers therein are referredto as “(R. ___)”.

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STATEMENT OF THE CASE AND THE FACTS

A. Factual Background

Initially, in 1995, plaintiff, Karen Jost (the “Plaintiff”), as guardian of Arthur

Myers (the “Patient”), sued Lakeland Regional Medical Center (the “Hospital”) and

Dr. Ahmad (“Ahmad”) for medical malpractice. (¶26, R. 948; A. 121.) Plaintiff

alleged Ahmad negligently attempted to insert a catheter to monitor the Patient’s

heart and caused him to suffer respiratory arrest and severe brain damage. (¶ 10-17,

56-58, 72-73; R. 944-946, 959-961, 965-9; A. 8-10, 23-25, 29-33.) The Hospital

concealed from Plaintiff the policies it adopted whereby the Hospital determined

Ahmad was not qualified to perform that procedure and the Hospital records

describing the failed catheterization procedure and respiratory arrest “disappeared”.

(Counts I and II; R. 951-5; A. 15-19.) As summarized by the Second District in Jost

v. Ahmad, 730 So. 2d 708 (Fla. 2nd DCA 1998), rev. den., 743 So. 2d 508 (Fla.

1999) (“Jost I”), “During the course of these events, a nurse called in Dr. Walter

Gray, a specialist in intensive care medicine, who properly inserted the catheter. Dr.

Gray thereafter took over [the Patient’s] treatment until [the Patient’s] eventual

discharge from the hospital.” Jost I, 730 So. 2d at 709.

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Prior to the trial of the underlying malpractice claim, Plaintiff had served

discovery on the Hospital regarding any limitation on Ahmad’s hospital practice as a

cardiologist and made requests that required the Hospital to disclose evidence that

would have shown Ahmad was not authorized to perform the catheterization that

resulted in the Patient’s catastrophe. (¶ 26, 34-6, 41-2; R. 948, 951-2, 954; A. 12, 15-

16, 18.) The Hospital and their insurance carrier American Continental Insurance

Company (“Insurer”), by and through their agents and employees, willfully and

fraudulently withheld this critical information. (Count I, ¶ 26, 33-39; R. 948, 951-

954; A. 13, 15-18.) Although required to disclose this information pursuant to

Plaintiff’s lawful inquiry, the Hospital also concealed facts showing that because of

Ahmad’s lack of skill, the Hospital customarily arranged to have another physician

“stand by” when Ahmad attempted invasive procedures like the catheterization

involved here. (Count I, ¶ 26, 33-39; R. 948, 951-2; A. 12, 15-18.)

Unknown to Plaintiff at the time, Dr. Gray was the physician who was

“standing by”. During trial, the Plaintiff called Dr. Gray as a critical fact witness.

Dr. Gray was an employee of the Watson Clinic, but worked exclusively on site at

the Hospital’s intensive care unit. (¶ 28; R. 949; A. 13.) During a bench conference,

he confided to the trial court that the Hospital’s Insurer (who Plaintiff learned after

trial also insured Watson Clinic) had caused communications to be sent to him under

circumstances the District Court “categorized generally as ‘witness tampering.’”

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Jost I, 730 So. 2d at 710; see also (Count II; ¶ 45-50; R. 555-7; A.19-21.) As a result

of the Hospital and Insurer’s destruction of evidence, misrepresentations, and

concealment of these and other critical facts, Plaintiff’s ability to prove her case at

trial was significantly impaired and an adverse jury verdict was rendered in favor of

the Hospital and Ahmad. (Counts I-IV; R. 942-959; A. 6-23.)

The Second District reversed and remanded for a new trial recognizing

[The Hospital] and ACIC directly tampered with [Dr.

Gray’s] testimony by procuring the assistance of Gray’s

employer, Watson Clinic, to communicate with Dr. Gray

so as to influence him to give favorable testimony, or

withhold unfavorable testimony to [the Hospital] and

ACIC.

Jost I, 730 So. 2d at 708; see also (¶ 48; R. 956; A.20.) The court reversed because

such egregious conduct “‘permits the jury to make adverse inferences from a party’s

effort to intimidate witnesses or otherwise suppress probative evidence…,’”. Jost I,

730 So. 2d at 711 (quoting McCool v. Gehret, 657 A.2d 269, 276 (Del. 1995)).

At the time of trial and the spoliators’ misconduct, Plaintiff had a very

substantial civil action as a result of the Patient’s severe and totally disabling brain

damage. The claim for past and future medical expenses, pain and suffering, and

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personal injuries involved several millions of dollars, as evidenced by a very

substantial pre-trial settlement offer. (¶ 20, R. 946-7; A. 11-12.) However, shortly

after reversal of the adverse jury verdict in Jost I, the Patient died and as a result of

the limitations on medical malpractice wrongful death claims, Section 768.21(8),

Florida Statutes, or under the Survivorship Act, Section 46.021, Florida Statutes,

Plaintiff’s valuable civil action was largely extinguished. (¶ 39, 44, 50 and 54; R.

953, 955, 957, 958-9; A. 17, 19, 21.) On remand from Jost I, Plaintiff amended the

complaint to include the spoliation causes of action against the Hospital and Insurer

(the “Spoliators”).

Generally, Count I of the Second Amended Complaint sought damages for

spoliation of evidence through concealment and “lost” evidence (R. 951-954; A. 15-

18); Count II sought damages for spoliation of evidence through destruction of

medical records and documents (R. 954-955; A.18-19); Count III sought damages

for spoliation of evidence through witness tampering (R. 955-957; A.19-21); and

Count IV stated a claim of conspiracy between the defendants to spoliate critical

evidence and deprive Plaintiff of her valuable cause of action. (R. 958-959; A.22-

23). Specifically, Plaintiff alleged the Insurer and the Hospital engaged in a

pervasive and concerted effort to manage and manipulate records, intimidate

employees and prospective witnesses, withhold relevant evidence and information

and to otherwise unfairly obstruct the discovery and presentation of claims by

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persons damaged as a result of negligent or wrongful conduct attributable to them.

(¶. 31, R. 950; A.14.)

The Second Amended Complaint fully sets out: (1) the Spoliators’ had a

legal duty to preserve, maintain and disclose records, and to abstain from impeding

or tampering with the testimony of witnesses. (¶. 26, 34, 41, 46; R. 948-9, 951, 954,

955-6; A. 12-13, 15, 18, 19-20); (2) the Spoliators’ breached their legal duty when

they nevertheless, destroyed, concealed, altered and tampered with evidence; (Count

I, R. 942-54; A.6-18; Count II, R. 942-51, 954-5; A. 6-15, 18-19; Count III, R. 942-

51, 955-7; A. 6-15, 19-21); (3) these illegal and wrongful acts were undertaken by

the Hospital and Insurer for the purpose of impairing and prohibiting Plaintiff from

proving the Patient’s personal injury claim (Count IV, R. 958-9; A. 22-23); and (4)

the Hospital and Insurer were manifestly successful in substantially impairing

Plaintiff’s valuable legal rights. (¶ 26, 32, 39, 43, 44, 49 and 50; R. 948, 950-1, 953,

954-5, 957; A. 12, 14-15, 17, 18-19, 21.) Notwithstanding, the trial judge dismissed

with prejudice all four counts of the Amended Complaint based on his conclusion

that “Even if proved, the alleged acts are privileged.” (R. 1077; A. 42)

B. Procedural Background

In the trial of the underlying claim where neither the spoliated evidence nor

the fact of spoliation was available to the jury, the jury rendered a verdict in favor of

Ahmad and the Hospital. Jost v. Lakeland Regional Medical Center, 844 So. 2d

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656, 657 (Fla. 2nd DCA 2003) (“Jost II”). On appeal, the Second District reversed

that verdict for Ahmad and the Hospital because the trial court failed to admit

evidence of their “witness tampering.” Jost I, 730 So. 2d at 710-11. On remand,

Plaintiff amended the complaint to join the Hospital’s Insurer, and added counts

for spoliation of evidence against both Spoliators. (R. 942-959; A.6-23.) The trial

court rendered the Final Order dismissing the spoliation of evidence claims with

prejudice and a second appeal ensued. (R. 1077; A. 41-42.)

The Second District Court of Appeal affirmed in part and reversed in part the

Final Order. See Jost II, 844 So. 2d 656 (Fla. 2nd DCA 2003). In so doing, the

Second District (1) expressly aligned itself with the Fourth District decision in

Martino v. Wal-mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003) (A. 4),

which held that no independent cause of action for spoliation exists where the

spoliator and the defendant in the underlying action are the same, and affirmed the

dismissal of Counts I through IV; (2) reversed the dismissal with prejudice of the

spoliation claims against the Insurer because it concluded those claims would not

be “ripe” until the underlying medical malpractice claim was resolved, Jost II, 844

So. 2d at 657-58, (A. 4-5.); and (3) affirmed the dismissal with prejudice as to

those aspects of the Amended Complaint which alleged concealment rather than

destruction of evidence. Jost II, 844 So. 2d at 658. (A. 4.)

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When the Second District rendered Jost II, this Court had already accepted

jurisdiction to review the conflict between Martino and Bondu v. Gurvich, 473 So.

2d 1307 (Fla. 3rd DCA 1984) rev. den. 484 So. 2d 7 (Fla. 1986), which had long

held there was a cause of action against a defendant spoliator. See Martino v. Wal-

Mart Stores, Inc., Case No. SC03-334. In addition to invoking this Court’s

conflict jurisdiction on the Martino issues, Plaintiff also sought this Court’s

jurisdiction to reconcile the conflict between the Second District’s holding that the

spoliation claims against the Insurer were premature and the prior rulings of its

sister courts in Miller v. Allstate Company, 573 So. 2d 24 (Fla. 3d DCA 1990) rev.

den. 581 So. 2d 1307 (Fla. 1991)(“Miller I”) and Strasser v. Yalamanchi, 783 So.

2d 1087 (Fla. 4th DCA 2001), rev. den., 805 So. 2d 810 (Fla. 2001). This Court

granted jurisdiction.

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SUMMARY OF ARGUMENT

First and foremost, Plaintiff pled a proper cause of action for spoliation of

evidence with respect to each of the dismissed counts. As such, the Second

District‘s decision should be reversed and Plaintiff’s case allowed to proceed.

The only way to guarantee a plaintiff’s fundamental constitutional rights of

access to courts, trial by jury, and equal protection is to recognize an independent

cause of action against any spoliator, whether it is a third-party or a party to the

underlying action. If this Court adopts Martino and Jost II to conclude there is no

claim for spoliation against a defendant spoliator, then parties or their agents would

be given a license to destroy or conceal all adverse evidence because there would

be little or no downside in doing so. This flies in the face of the Court’s

commitment to promote the “search for the truth.” Faced with the choice of

producing the “smoking gun” document that would likely result in a substantial

adverse verdict (losing the case), or concealing, modifying, or destroying the

“smoking gun” medical record that could create a defense verdict (winning the

case), a party would be highly tempted to conceal or destroy the damning evidence.

First, of course, the fact of spoliation may never be discovered. Assuming it is, if

the only penalty is a mere adverse inference (which the spoliator may well

overcome) or possibly some “sanction” (which the spoliator may dissuade the

judge from entering at all or minimizing), an unethical party would not be deterred

17

from undermining the “search for the truth” by concealing or destroying the very

evidence to which the other party is entitled. Only the existence of a separate

cause of action against the party spoliator (which will expose the spoliator to the

same damages that would have been recoverable had he disclosed the damning

evidence) will be sufficient to make the plaintiff whole and deter others from

participating in such egregious conduct.

Indeed, by concluding that no cause of action for spoliation of evidence

exists against a defendant spoliator (as opposed to a third-party spoliator), the

Second District’s (Jost II) and Fourth District’s (Martino) decisions potentially

encourage unsavory litigation tactics that only serve to further undermine the

public’s confidence in the judicial system. Jost II and Martino attempt to overturn

twenty years of established, well reasoned law as set forth in Bondu v. Gurvich,

473 So. 2d 1307, 1309-1310 (Fla. 3d DCA 1984), and should be disapproved.

Furthermore, contrary to the conclusion expressed in Jost II, judicial

economy, fairness and consistency dictate a cause of action for spoliation of

evidence should be tried concurrently (assuming the spoliation is known prior to

trial) with the underlying claim. The jury which hears the underlying claim is in

the best position to know whether the absence of evidence substantially impaired

the plaintiff’s ability to win the case outright or to recover the full amount of

18

damages sought. Finally, the same evidence of spoliation is relevant to both the

spoliation and underlying claim.

Concealment of evidence can form the basis of a spoliation claim when, as

in this case, the concealment is equivalent to destruction. Pragmatically, one can

never truly know if the “lost” or “misplaced” evidence is gone forever or may

magically someday (long after the plaintiff has lost her case) be found. Regardless

of whether evidence is definitively destroyed or simply presumed to be missing or

concealed until after the jury renders its verdict – the result is the same – the

critical evidence to which the plaintiff is entitled is gone. As such, concealment

can under appropriate circumstances, support a cause of action for spoliation of

evidence.

Spoliation of evidence imposes liability to remedy the detriment created by a

spoliator’s concealment, modification or destruction of evidence, without

consideration of the type of evidence involved. Evidence is evidence. Whether the

evidence is packaged as a document, object, video recording, or live testimony,

each category should be given the same deference and consideration by the court

and jury. It is the void created and prejudice to the plaintiff, not the specie of

evidence spoliated, that necessitates the right to bring an independent cause of

action for spoliation of evidence.

19

Finally, Florida law does not immunize witness tampering, document

destruction and concealment of evidence simply because it occurs in relation to a

judicial proceeding. Although Florida law recognizes a litigation privilege, its

limits are not without boundaries and only immunizes conduct which is “required

or permitted by law in the due course of judicial proceeding”. The litigation

privilege does not and should not immunize unlawful conduct.

Jost II and Martino have attempted to dismantle two decades of established

Florida law and disregard compelling public policy when they extinguished a

plaintiff’s right to sue a defendant party for spoliation of evidence. Respectfully,

this Court should adopt Bondu as the controlling law of Florida and clarify the

parameters of the important, independent cause of action for spoliation of

evidence.

20

PRELIMINARY STATEMENT

As a preliminary matter, because this appeal has been consolidated with the

Martino case, Petitioner adopts the Martino petitioners’ arguments in the Initial

and Reply Briefs, as well as the arguments raised by the Amici George R. Harper,

et al. in their Amicus Brief, in Case No. SC03-334. To avoid being redundant,

Plaintiff will not repeat those arguments here. However, Plaintiff may elaborate

upon some of those arguments when necessary to explain why the Final Order

should be reversed in this case. Furthermore, although this case has been

consolidated for review with Martino, it is important to note the significant

differences between how Jost II and Martino reached this Court.

1. The judicial rejection of Plaintiff’s right to prosecute spoliation claims

in Jost II arose in the context of a Final Order dismissing Plaintiff’s Second

Amended Complaint wherein the allegations must be taken as true and

unequivocally establish (a) the defendants had a duty to preserve the evidence

which they either destroyed, concealed or otherwise tampered with; (b) each and

every of the alleged instances of spoliation of evidence significantly impaired

Plaintiff’s underlying cause of action, and (c) Plaintiff suffered significant

damages as a direct result of the spoliator’s wrongful acts. (R. 942-959; A. 6-23.)

2. The Martino case only involves allegations of pre-litigation spoliation

whereas Jost II involves spoliation which may have occurred either prior to or

21

during litigation (e.g., destruction of or failure to make essential medical records

that defendant claimed did not exist), and intra-litigation spoliation (e.g.,

concealing and failing to produce critical hospital policy documents and tampering

with witnesses).

3. The alleged spoliation in Martino apparently was discovered during

the pending litigation so as to permit the trial court to entertain the argument that

sanctions or other court-imposed remedies might be sufficient. In Jost II, Plaintiff

did not discover the extent of the spoliation until immediately prior to, during or

after trial.

4. In Jost II, the Patient’s very substantial personal injury claim that was

precluded by the Spoliator’s wrongful interference with his cause of action has

been eliminated by operation of law. Since the Plaintiff’s underlying claim was

impaired by the Spoliator’s wrongful acts, only a cause of action for spoliation of

evidence can remedy the damage.

22

STANDARD OF REVIEW

The issues of whether the tort for spoliation of evidence exists where the

spoliator is the defendant and when that claim may be brought are questions of law

subject to de novo review. Rykiel v. Rykiel, 838 So. 2d 508 (Fla. 2003).

Furthermore, “Because the determination whether a complaint sufficiently states a

cause of action involves an issue of law, an order granting a motion to dismiss is

reviewable on appeal by the de novo standard of review.” Sobi v. Fairfield

Resorts, Inc., 846 So. 2d 1204, 1206-7 (Fla. 5th DCA 2003).

23

ARGUMENT

I. PLAINTIFF HAS PLED THE ESSENTIAL ELEMENTS OF A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE.

There is no issue as to whether Jost satisfies all the essential requirements

under Florida law to support a claim for spoliation of evidence. In reviewing the

Final Order dismissing Plaintiff’s claims for spoliation of evidence, the court must

confine its inquiry to the four corners of the complaint, draw all reasonable

inferences in favor of the plaintiff, and accept all allegations as true. Ralph v.

Daytona Beach, 471 So. 2d 1 (Fla. 1983); Wilson v. News-Press Publ’g Co., 738

So. 2d 1000 (Fla. 2d DCA 1999); Perry v. Schlumbrecht, 724 So. 2d 1239 (Fla. 2d

DCA 1999). To state a cause of action for spoliation of evidence, Plaintiff need

only allege (1) the existence of a potential civil action; (2) a duty to preserve

evidence that is relevant to the potential civil action; (3) the spoliation of that

evidence; (4) significant impairment in the ability to prove the lawsuit; (5) a causal

relationship between the evidence spoliated and the inability to prove the lawsuit;

and (6) damages. See Continental Ins. Co. v. Herman, 576 So. 2d 313, 315 (Fla. 3d

DCA 1990) rev. den. 598 So. 2d 76 (Fla. 1991); Hagopian v. Publix Supermarkets,

Inc., 788 So. 2d 1088, 1091 (Fla. 4th DCA 2001) rev. den. 817 So. 2d 849 (Fla.

2002). It is manifestly clear from review of the second amended complaint that

P laintiff has well pled each and every essential element for a cause of action for

spoliation of evidence.

24

II. A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE SHOULD LIE AGAINST

ANY PARTY THAT WRONGFULLY DEPRIVES A CLAIMANT OF CRITICAL

EVIDENCE REGARDLESS OF WHETHER THE SPOLIATOR IS A THIRD PARTYTO THE CLAIM OR THE TORTFEASOR WHO BENEFITS FROM THE

SPOLIATION.

A. Consistent with this Court’s policy of preserving andprotecting the integrity of the judicial process and theFlorida Constitutional Right to Access to Courts, FloridaJurisprudence has long recognized a cause of action againstany wrongdoer who significantly impairs a plaintiff’sprospective civil action.

Florida courts have been diligent in protecting the integrity of the judicial

process from any artifice or unfair tactics that may impair the jury’s ability to

render and the litigant’s right to receive, a verdict based upon the justice of the

cause. See Fl. Bar v. Cox, 794 So. 2d 1278, 1286 (Fla. 2001)(noting that the core

of the judicial process is the search for the truth); Gore v. Harris, 773 So. 2d 524,

527 (Fla. 2000)(“A fundamental principle underlying all legal proceedings is the

search for the truth.”) (Shaw, J., concurring); Joubert v. State, 847 So. 2d 1056,

1058 (Fla. 3d DCA 2003)(recognizing that “a trial is not a game but a search for

the truth”)(Schwartz, J., dissenting). Consistent with that policy, for nearly two

decades, a cause of action for spoliation of evidence or interference with a

prospective civil action has been authorized under Florida law. See, e.g., Bondu v.

Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984). Based upon the essential

underpinnings of tort law, a cause of action for spoliation of evidence is intended

to (1) remedy the unfairness caused by the spoliation; (2) punish the spoliator; and

25

(3) deter future spoliation. See Rosenblit v. Zimmerman, 766 A. 2d 749, 754 (N.J.

2001) (citing Steffen Nolte, The Spoliation Tort: An Approach To Underlying

Principles, 26 St. Mary’s L.I. 351, 355-56 (1995)). The policy underlying cause of

action for spoliation is “an intangible and beneficial interest in the preservation of

the evidence.” Lincoln Ins. Co. v. Home Emergency Serv., Inc., 812 So. 2d 433,

435 (Fla. 3d DCA 2001) rev. den. 833 So. 2d 773 (Fla. 2002) citing DiGiulio v.

Prudential Prop. & Cas. Co., 710 So. 2d 3, 5 (Fla. 4th DCA 1998). A cause of

action for spoliation is necessary because “a ‘prospective civil action is a valuable

probable expectancy that the court must protect from interference.’” Miller v.

Allstate Ins. Co., 573 So. 2d 24, 26 (Fla. 3d DCA 1990) rev. den. 581 So. 2d 1307

(Fla. 1991) (“Miller I”); see also DiGiulio v. Prudential Prop. & Cas. Co., 710 So.

2d at 5 (Fla. 4th DCA 1998). Consequently, an injured party’s interest in his

lawsuit is entitled to legal protection against any party who has wrongfully

interfered with that party’s ability to prosecute his claim. See generally, Bondu,

473 So. 2d at 1313. Indeed, the cause of action for spoliation is an integral part of

Florida jurisprudence and common law. DiGiulio, 710 So. 2d at 5; see also

Lincoln, 812 So. 2d at 434-35 (Fla. 3d DCA 2001).

Prior to Martino and Jost II, Florida law recognized that a spoliation cause

of action existed against both a stranger/third party as well as a party to the

underlying action. See e.g., Hagopian v. Publix Supermarkets, Inc., 788 So. 2d

26

1088 (Fla. 4th DCA 2001)(party); Strasser v. Yalamanchi , 783 So. 2d 1087 (Fla.

4th DCA 2001)(party); St. Mary’s Hosp. v. Brinson, 685 So. 2d 33 (Fla. 4th DCA

1996) (third party); Brown v. City of Delray Beach, 652 So. 2d 1150 (Fla. 4th DCA

1995) (third party); Miller v. Allstate Ins. Co., 573 So. 2d 24 (Fla. 3d DCA 1990)

(third party); Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3rd DCA 1984) (party). For

example, in Bondu, the Third District Court of Appeal carefully considered the

various policy considerations and held:

Courts before us have recognized the existence of causes of action fornegligent failure to preserve evidence for civil litigation, Williams v.California, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137 (1983), andfor intentional interference with prospective civil action by spoliationof evidence, Smith v. Superior Court, 151 Cal.App.3d 491, 198Cal.Rptr. 829 (1984). If, as in Williams and Smith, an action forfailure to preserve evidence or destruction of evidence lies againsta party who has no connection to the lost prospective litigation,then, a fortiori, an action should lie against a defendant which, ashere, stands to benefit by the fact that the prospect of successfullitigation against it has disappeared along with the crucialevidence.

Id. at 1312 (emphasis added). Indeed, the decision in Bondu some two decades

ago is even more compelling in the win-at-all-cost litigation environment of today.

A cause of action for spoliation of evidence is essential to the principles of

Article I, Section 21 of the Florida Constitution, which provides:

The courts shall be open to every person for redress of any injury, andjustice shall be administered without sale, denial or delay.

27

Art. I, § 21, Fla. Const.

…This provision, dating from our 1838 constitution, was intended togive life and vitality to the maxim: ‘For every wrong there is aremedy.” Holland v. Mayes, 155 Fla. 129, 19 So. 2d 709 (1944).Article I, Section 21 guarantees to every person the right to free accessto the courts on claims of redress of injury free of unreasonableburdens and restrictions. G.B.B. Investments, Inc. v. Hinterkopf, 343So. 2d 899 (Fla. 3d DCA 1977).

Swain v. Curry, 595 So. 2d 168, 174 (Fla. 1st DCA 1992); see also Perkins v.

Pare, 352 So. 2d 64, 65 (Fla. 4th DCA 1977) (“There is no principle of law more

fundamental than that which declares ‘for every wrong there is a remedy.’”)

To allow a plaintiff whose underlying claim is damaged by a third-party

spoliator to be fully compensated for the loss suffered as a result of the destruction

of evidence, but to deny a plaintiff whose claim was substantially impaired or

diminished by a defendant spoliator the same full remedy, also violates the equal

protection clause of the Florida Constitution. See Art. I, § 2, Fla. Const.; see also

Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249, 251 (Fla. 1987)

(making clear that similarly situated persons are equal under the law and must be

treated alike); Lasky v. State Farm Ins. Co., 296 So. 2d 9, 18 (Fla. 1974) (same).

Under these circumstances, the first plaintiff would be made whole, while the

second, similarly situated plaintiff would be left with only an adverse inference the

defendant may readily and unfairly overcome or insufficient sanctions which will

not make the plaintiff whole.

28

The only way to guarantee a plaintiff’s fundamental constitutional rights of

access to courts, trial by jury, and equal protection is to recognize an independent

cause of action against any spoliator, whether it be a third-party or a party to the

underlying action. See N. Fla. Women’s Health and Counseling Serv., Inc. v.

State, 28 Fla. L. Weekly S549 (Fla. July 10, 2003) (stating that rights contained

within the Florida Constitution’s Declaration of Rights are fundamental).

B. The Second District’s adoption of the Fourth District’srationale in Martino v. Wal-mart Stores, Inc., 835 So. 2d1251 (Fla. 4th DCA 2003), that a cause of action forspoliation of evidence is “unnecessary” because “theadverse inferences” and “other available sanctions” willremedy the wrong is, respectfully, naive, misguided andinsufficient to change Florida jurisprudence establishedtwenty years ago in Bondu v. Gurvich, 473 So. 2d 1307 (Fla.3rd DCA 1984).

Neither sanctions, adverse inferences or a “new trial” will remedy

defendants’ wrongful spoliation nor will they make the plaintiff whole in

circumstances such as this. As this Court recently explained, spoliation of

evidence is a tort claim that results from the “defendant’s breach of a duty to

preserve evidence,” and “the damage that flows from that breach is the resulting

inability to successfully prove a cause of action.” Humana Worker’s Comp. Serv.

v. Home Emergency Serv., Inc., 842 So. 2d 778, 781 (Fla. 2003). If sanctions,

inferences or presumptions in favor of a prima facie case are the only remedies

available to a plaintiff in the event of spoliation by the opposing party, the plaintiff

29

loses the right to full redress of injuries and the right to a fair trial by jury. See Art.

I, § 22, Fla. Const. (“The right of trial by jury shall be secure to all and remain

inviolate.”); see also Smith v. Dep’t of Ins., 507 So. 2d 1080, 1088 (Fla. 1987)

(stating that the constitutional guarantee of access to courts must be read in

conjunction with the right to a jury trial).

Moreover, court imposed sanctions against a defendant impermissibly

invade the defendant’s right to trial by jury. Should a trial judge be determining

whether or not a party defendant actually committed spoliation? When the party

defendant either asserts it never had the evidence, lost it as opposed to destroyed it,

or says the plaintiff can prove her case without the lost or destroyed evidence, a

trial judge would necessarily invade the province of the jury to answer critical

factual questions. Moreover, how will the judge determine what sanctions to

award? And, can a trial judge constitutionally determine plaintiff’s damages? The

Florida Constitution says “No”. Furthermore, a court imposed “remedy” would

invariably lead to inconsistent and unequal consequences for similar conduct. One

trial judge may allow an adverse inference, another may merely impose a small

monetary fine, and yet another may refer the spoliator’s counsel to the Florida Bar

2 If a judge refers a lawyer appearing before him to the Florida Bar fordisciplinary action stemming from litigation spoliation, the question also becomeswhether that judge will be able to continue to hear that case or whether recusal willbe required. A recusal only hurts the plaintiff, who will most likely lose his trial dateand be forced to re-litigate issues before a new judge who is now unfamiliar with thespoliator’s misdeeds.

30

for possible disciplinary proceedings.2 Clearly, in the case sub judice, no inferences,

presumptions or sanctions exist (except recovery through a spoliation action of the

damages lost in the underlying claim) to remedy the Spoliators’ intentional

wrongdoing.

Likewise, a new trial will not fully remedy the plaintiff’s loss because it

cannot conjure up the spoliated evidence. The evidence has been irretrievably lost

or permanently destroyed. Regardless of the mechanism of destruction, the result

is the same – the evidence Jost needed (and to which she was entitled) to

successfully prove the underlying claim is gone. The medical records documenting

what actually happened when the Patient had a respiratory arrest are forever lost.

The witnesses who were threatened and intimidated cannot nine years later be

magically made available to Plaintiff as though these things never occurred. Dr.

Gray’s full, truthful testimony given openly without fear of threats or intimidation

is gone forever. The spilled milk cannot be put back in the bottle.

Although Florida courts recognize and can implement a meaningful remedyfor defendants when a plaintiff fails to preserve and produce important evidence,see e.g. Torres v. Matsushita Elec. Corp., 762 So. 2d 1014 (Fla. 5th DCA 2000), thedecisions in Jost II and Martino would deny a meaningful remedy to a plaintiffunder similar circumstances. In Public Health Trust of Dade County v. Valcin, 507So. 2d 596, (Fla. 1987), this Court recognized the constitutional limitations on the

3 See Page 8, Harper, et al. Amicus Brief in Martino v. Wal-mart Stores, Inc.,835 So. 2d 1251 (Fla. 4th DCA 2003), citing Rhode, “Ethical Perspectives on LegalPractice,” 37 Stan. L. Rev. 589, 597-99 (1985).

4 See Fn. 3, above.

31

court’s ability to fashion a remedy when, under circumstances similar to some ofthe matters involved in Jost II, it determined the court could not impose anirrebuttable presumption of negligence when a hospital failed to maintain medicalrecords which were important to plaintiff’s ability to prove her case. Valcin, 507So. 2d at 598-601. Indeed, even the rebuttable presumption of negligence approvedin Valcin only lies after “a plaintiff must first establish to the satisfaction of thecourt that the absence of the records hinders his ability to establish a prima faciecase”. Valcin, 507 So. 2d at 599. However, it is not sufficient to only protectagainst a plaintiff’s right to prove a “prima facie case”. As was the case in Torreswhen a defendant was prejudiced by the plaintiff’s failure to preserve and produceevidence uniquely in his possession, a party in a products liability or medicalmalpractice case can in most instances establish a “prima facie case” through anexpert witness even in the absence of important pieces of evidence. See Torres,762 So. 2d at 1014. However, the ability to overcome the spoliator’s defenses insuch a case is substantially impaired when the plaintiff is wrongfully denied accessto defendant’s own admissions and contemporaneous records which memorializethe negligence.

For example, assuming the allegations of spoliation in Martino to be true, ajudicially imposed inference or sanction cannot possibly substitute for thevideotape showing the events which defendant denied or the actual defectiveshopping cart which defendant did not preserve. In Jost, no proof could have beenmore persuasive that the doctor was incompetent to perform the procedure in issuethan the hidden evidence wherein the Hospital itself had so determined; or therequired contemporaneous record of the failed procedure that was destroyed orhidden. Only an independent cause of action can reasonably and constitutionallymake a plaintiff whole when the destroyed or concealed evidence is so material;and only such a cause of action can adequately deter a party from engaging in suchimproper practices if they, otherwise, have little or nothing to lose.

Sanctions are not a deterrent. In this increasingly win-at-all-cost litigation

environment, if defendant has damning evidence in its possession, the concealment

or destruction of such proof now makes good business sense in light of Martino

and Jost II.3 Assuming such misconduct is even discovered4, if the only penalty may

5 The Petitioner’s brief on the merits in Martino v. Wal-Mart has addressed thequestion of whether a court even has the constitutional authority to address or sanctionpre-litigation spoliation (See pp. 29-32) and we will not repeat those well taken points.

32

be some sanction5 or an adverse inference, an unethical party would have little incentive to

play by the rules. That certainly was the case in Jost.

We submit it is not reasonable public policy to permit a claim against a third

party for losing, destroying, or impairing evidence a plaintiff needs in an action

against another party, but provide no claim where the party responsible for

spoliating evidence is the party against whom the lost evidence would have been

used. Should Florida’s law and public policy reward a litigant for intentionally

destroying evidence to protect itself from liability while holding third parties liable

for negligently destroying evidence that interferes with a plaintiff’s claims against

someone else? Bondu says no and, respectfully, this Court should say no.

By rejecting a spoliation cause of action where the spoliator and defendant

in the underlying claim are the same, Martino and Jost II ignore not only

constitutional mandates, but the pragmatic real world consequences of giving

tortfeasors a potential free ride if they can, by one means or another, hide critical

evidence. For twenty years, and in accordance with the search for the truth,

Florida law has recognized and upheld a cause of action for spoliation against a

defendant spoliator. See Bondu, 473 So. 2d at 1312-13. During those two decades

there have been relatively few cases brought for spoliation of evidence. Where

necessary, however, the cause of action has served to provide a remedy to plaintiffs

33

whose cause of action was substantially impaired because of either a defendant’s or

a third party’s spoliation of evidence. The existence of this cause of action protects

a plaintiff’s constitutional right to a fair jury trial, assures the spoliator is not

rewarded for its wrongful conduct and deters others from committing future acts of

spoliation such as occurred in this case.

C. When a plaintiff’s ability to prove her underlying claim issubstantially impaired due to the absence of spoliatedevidence, only the recovery of all damages lost during theunderlying claim will make the plaintiff whole.

A basic principle of tort recovery is that once the plaintiff is in the zone of

risk created by the defendant, the defendant is liable for all injuries caused by his

misconduct. Miller I, 573 So. 2d at 29. In addition, tort-related damages are

intended to put the plaintiff back in the position he was in before the wrongdoing

occurred. Nordyne, Inc v. Fla. Mobile Home Supply, Inc, 625 So. 2d 1283, 1286

(Fla. 1st DCA 1993). Accordingly, the goal of a claim for spoliation of evidence is

to put the plaintiff in the position he would have been in had the evidence not been

altered, destroyed, or modified. See Builder’s Square, Inc. v. Shaw, 755 So. 2d

721, 724 (Fla. 4th DCA 1999) (“Spoliation is the same tort for the same damages as

the underlying claim substantially impaired by the loss of the ruined evidence.”).

Consequently, a party may proceed with the underlying case while pursuing the

spoliation claim to recover all damages if the underlying case cannot be proved, or

to recover that portion of the damages that would have been awarded but for the

34

spoliation. Builder’s Square, Inc. v. Shaw, 755 So. 2d at 721, 725; Strasser, 783

So. 2d at 1094.

Ideally, the law would put the plaintiff in the position of being able to prove

his case as if the evidence had not been spoliated. Realistically though, since the

bell cannot be unrung, the destroyed or lost evidence cannot be magically

recreated, the law can only make the plaintiff whole by other means. Thus, the

plaintiff must be entitled to recover the full value of the claim as it would have

existed had the evidence not been lost, concealed or destroyed by the opposing

party.

Moreover, a defendant should not be permitted to spoliate evidence and then

complain that assessing the damages caused by its wrongdoing is too “speculative”

to be quantified. The Third District has already addressed and dismissed that

argument, noting that “when the difficulty in establishing damages is caused by the

defendant, he should bear the risk of uncertainty that his own wrong created.”

Miller I, 573 So. 2d at 28. Indeed, the cause of action for “spoliation” derives from

the right to sue a “spoliator” who is defined as:

“A spoiler or destroyer. It is a maxim of law, bearing chiefly onevidence, but also upon the value generally of the thing destroyed,that everything most to his disadvantage is to be presumed against thedestroyer, (spoliator,) contra spoliatorem omnia proesumuntur.”

Black’s Law Dictionary 1573 (Rev. 4th Ed. 1968).

6 The testimony at trial was that if the Patient had the monetary ability to obtainquality medical care then his life expectancy would be significantly improved.

35

Here, the cause of action Plaintiff was entitled to pursue in 1997, the

Patient’s personal injury claim, no longer exists because the Spoliators deprived

him of his opportunity to prove his valuable cause of action6 while the Patient was

alive. However, the spoliation cause of action arose at the time of the Spoliators’

wrongful conduct and is not extinguished by the Patient’s subsequent death. See §

46.021 Fla. Stat. (2001) (“No cause of action dies with the person. All causes of

action survive and may be commenced, prosecuted, and defended in the name of

the person prescribed by law.”) The damages for impairment of the Patient’s

personal injury claim arose when the Spoliators’ wrongful acts substantially

interfered with the Patient’s ability to prosecute his claim to a jury verdict in 1997,

when he was alive. Miller I, 573 So. 2d at 29; see also Brown v. City of Delray

Beach, 652 So. 2d 1150 (Fla. 4th DCA 1995). Florida law has long condemned

“gotcha” tactics and will not permit a party to enjoy the fruits of that party’s

improper conduct. Cf. Salcedo v. Assoc. Cubana, Inc., 368 So. 2d 1337, 1339 (Fla.

3d DCA 1979). In fact, even if the Patient were still alive, the damages resulting

from the spoliation would be the same. The Patient’s guardian would be entitled to

recover all the damages the Patient should have recovered in his medical

malpractice claim if the jury finds the Spoliators’ destruction of or tampering with

evidence substantially impaired the ability to prove his case to the jury. In short,

36

the fact that the Spoliators were able to thwart Patient’s civil action until he died

does not let them off the hook. Patient’s subsequent death only serves to remove

any question about whether he suffered any loss of “an award or profit” when the

Spoliators’ wrongful acts culminated in an adverse verdict in 1997. Miller I, at 29.

III. A CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE ACCRUES AT THE TIME

OF THE WRONGFUL CONDUCT AND, IF KNOWN, MAY BE BROUGHT INCONJUNCTION WITH THE CAUSE OF ACTION WHICH HAS BEEN IMPAIRED.

Contrary to the Second District’s conclusion in Jost II, the Plaintiff’s

spoliation claims against the Insurer are not premature. Id. at 658. The plaintiff

may present both the underlying claim and the spoliation claim simultaneously to

the same jury. See Strasser, 783 So. 2d at 1094 (concluding that one party’s

destruction and concealment of evidence provided a basis to submit the other

party’s spoliation and underlying claims to the same jury at the same time); see

also Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001);

Miller I, 573 So. 2d 24 (Fla. 3d DCA 1990); Boyd v. Travelers Ins. Co., 652 N.E.

2d 267, 272 (Ill. 1995); Callahan v. Stanley Works, 703 A. 2d 1014, 1019 (N.J.

Law Div. 1997) (holding a single jury should hear both the spoliation and the third-

party negligence action concurrently). As explained in Miller v. Allstate, 650 So.

2d 671 (Fla. 3d DCA 1995) (Miller II):

“For reasons of judicial economy, and to prevent piecemeal litigation,we see no reason to wait for final judgment in the underlying[products liability] lawsuit before bringing an action for thedestruction [of evidence] claim …. [A] jury trying the concurrent

37

claims in a single proceeding may be in the best position to determineissues of causation and damages.

*****

In the more efficient trial of both the product liability claim and thedestruction of evidence [claim] in a single action, the jury will decideat the outset whether the plaintiff proved by the greater weight of theevidence that the product was defective when it left the hands of theseller. If the answer to that question is no, the jury will next decidewhether the failure to prove that issue was a result of the destructionof the evidence by Allstate.

Miller II, at 673 (quoting Miller I, 573 So. 2d at 28, n. 7; 31 n. 13.) Thus, whereany vestiges of the underlying claim remain, it is more appropriate to try that claimand the spoliation claim in a single action. Miller I, 573 So. 2d 31, fn. 13; see alsoYoder v. Kuvin, 785 So. 2d 679 (Fla. 3d DCA 2001); Strasser, 783 So. 2d at 1094.

Allowing the spoliation claim to proceed in conjunction with the underlying

claim promotes fairness and consistency to all parties involved. Not only is the

jury that tries the underlying case in the best position to evaluate the spoliation

count, but the evidence of the spoliation is also potentially relevant to the merits of

the underlying claim. It is an exercise in futility to try a case a plaintiff knows he

cannot prove because of missing or spoliated evidence just to obtain an adverse

verdict as a predicate to a second lawsuit in which a new jury will have to

determine whether the evidence was spoliated and whether that spoliation caused

damage in the first action. Trying both claims at the same time is the most

efficient and fair way for the jury to render a just verdict on each claim. Thus, the

spoliation claim should not be stayed pending the outcome of the underlying case.

See Strasser, 783 So. 2d at 1094; Miller II, 650 So. 2d at 673; Miller I, 573 So. 2d

38

at 28; Boyd v. Travelers Ins. Co., 652 N.E. 2d at 272; Callahan v. Stanley Works,

703 A. 2d at 1019.

In the least, the decision in each particular case as to whether the spoliation

claim should be tried with the underlying claim should be left to the trial court’s

sound discretion. The trial court can best assess any competing interests or issues

as to how to most fairly submit the claims to the jury, including bifurcation or

other procedures or special instructions. The Second District’s decision, as a

matter of law, that the spoliation claim is premature until plaintiff unsuccessfully

attempts to prove its impaired tort claim is not only in conflict with the cited cases,

but unnecessarily infringes on matters of procedure that should first be considered

by the trial court.

Because Plaintiff’s claim against the Insurer should proceed in conjunction

with any remaining malpractice case, the dismissal of the spoliation claim as

“premature” should be reversed.

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IV. THE PUBLIC POLICY OF THE STATE OF FLORIDA REGARDING SPOLIATION

OF EVIDENCE SHOULD APPLY TO ALL SPECIES OF EVIDENCE WHICH HAVE

BEEN WRONGFULLY CONCEALED TO THE SIGNIFICANT IMPAIRMENT OFA PARTY’S CAUSE OF ACTION.

Since this Court accepted jurisdiction of Jost II, it may exercise its

jurisdiction to consider all other issues actually presented and argued in the case

below. Murray v. Regier, 27 Fla. L. Weekly S1008, n. 5 (Fla. Dec. 5, 2002) (citing

Savoie v. State, 422 So. 2d 308 (Fla. 1982)). It is respectfully submitted that this

Court should exercise its discretionary jurisdiction to resolve those conflicts and

establish proper parameters for protecting litigants whose right of recovery has

been eliminated or significantly impaired by the spoliation of evidence.

Spoliation of evidence occurs whenever evidence is modified, altered,

destroyed, tampered with or falsified. The nature of the evidence – physical,

testimonial, or documentary – is irrelevant. The same policy considerations should

apply regardless of the type of evidence at issue.

The decision in Jost II has led to a circuitous, and we submit erroneous,

delineation of a cause of action for spoliation of evidence. Jost II, without

discussion or analysis, relied on the decision of a federal trial judge that

“[c]oncealment of evidence . . .does not form a basis for a claim of spoliation”,

Jost II at 658, (citing Florida Evergreen Foliage v. E.I. DuPont de Nemours and

Co., 165 F.Supp.2d 1345 (S.D. Fla. 2001)). Jost II now has been cited by the

Eleventh Circuit for that proposition and more,

7 It might be noted that the Eleventh Circuit further reflected its Rambo viewof Florida jurisprudence by finding that a litigant bringing a claim based on fraud ormisrepresentation could not reasonably rely on misrepresentations in the course ofdiscovery explaining “when negotiating or attempting to compromise an existingcontroversy over fraud or dishonesty, it is unreasonable to rely on representationsmade by the allegedly dishonest parties.” Green Leaf, 341 F.2d at 1304. “Simplybecause the misrepresentations occurred during litigation does not render relianceupon them reasonable.” Green Leaf, 341 F.2d at 1305.

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“Concealment does not constitute spoliation because such conduct iscovered by the litigation privilege. See Jost v. Lakeland RegionalMed. Ctr., 844 So. 2d 656, 658 (Fla. Dist. Ct. App. 2003).”

Green Leaf Nursery v. E.I. DuPont de Nemours and Co., 341 F.3d 1292, 1308 (11th

Cir. 2003).7 Essentially, the Eleventh Circuit has now blessed the concealment of

evidence by litigants as privileged. This is not the law of Florida. See infra. part

V.

Concealment can be, and in this case is, tantamount to destruction of

evidence. Therefore, concealment should be a basis for a claim for spoliation of

evidence. As seen in Strasser, 783 So. 2d at1089-1091, the loss of evidence creates

the same damages regardless of whether the evidence is concealed or ultimately

destroyed. Strasser involved two plastic surgeons embroiled in litigation after the

break up of their medical practice. Id., at 1089. It was ultimately uncovered during

litigation that throughout discovery Strasser had been systematically destroying

relevant financial records which had been the subject of valid discovery requests by

his former partner Yalamanchi. Id., at 1089-1090. Eventually, pursuant to court

order, Yalamanchi was permitted to inspect the practice’s computer in an effort to

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retrieve the information Strasser destroyed during litigation. Id., at 1090. The

computer inspection was vigorously disputed and unbeknownst to Yalamanchi (and

the courts) during the ensuing year long battle Strasser had concealed the fact that

the computer had already been destroyed. Id., at 1089-1091. At some point,

“Following a two-year crusade through the courts of this state in a vain and costly

attempt by Yalamanchi to obtain relevant and critical information vital to his claim,

he amended his complaint against Appellants to include a claim of intentional

spoliation of evidence.” Id., at 1089.

The court held the facts surrounding the “destruction or unexplained

disappearance of crucial evidence” should be submitted with the underlying claim

to the jury. Id., at 1093 - 1094 (emphasis added). This is only logical because in

Strasser, as in Jost, concealment versus destruction is a distinction without a

difference. In both instances the controlling fact is the absence of critical evidence,

not the means by which the void was created. Realistically, one can never truly

know if lost or missing evidence has really been permanently destroyed or just

temporarily or permanently concealed. Absent a confession that the evidence is

definitively destroyed, there remains the possibility the “lost” evidence may

resurface someday. Yet, this is of no assistance to the plaintiff whose one chance

to win her case before a jury has been significantly impaired.

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It would be absurd to draw an arbitrary line between spoliation by

destruction and spoliation by concealment. For example, if a ladder that is needed

to prove a product defect claim is destroyed, even the Spoliators should not dispute

that is actionable spoliation. See Lincoln Ins. Co. v. Home Emergency Serv., Inc.,

812 So. 2d at 435. But if the same ladder is not destroyed, but is hidden under the

house and not produced to the plaintiff upon request, and the plaintiff cannot prove

the case without that ladder, the detriment to the plaintiff is the same. Thus, each

plaintiff is deprived of his protected interest and denied the right to a trial on the

merits.

Additionally, the Florida cause of action against a spoliator of evidence was

created not because of the specie of evidence involved (i.e., a “thing” vs.

“testimony” or a “statement” or a particular type of “record” or “product”), but to

craft a remedy for wrongful interference with a party’s ability to prove his lawsuit.

See, e.g., Bondu, 473 So. 2d at 1312. It is the spoliation that creates a cause of

action - not the type of evidence despoiled.

In the present case, in addition to destroying or concealing documents,

defendants engaged in witness tampering. Witness testimony is evidence. As this

Court adopted in its standard jury instructions:

The evidence in this case consists of the sworn testimony of thewitnesses, all exhibits received in evidence, all facts that may beadmitted or agreed to by the parties, and any fact of which the courthas taken judicial notice.

8 This case was relied upon by the Second District Court of Appeal in Jost I,which held that tampering with a witness was spoliation. See Jost I, 730 So. 2d at 708.

9 Although none of these cases arose in the context of a claim for spoliation ofevidence, they recognize that tampering with testimonial evidence is spoliation of thatevidence.

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Florida Standard Jury Instructions in Civil Cases, 2.1 (emphasis added). Thus, acause of action for spoliation of evidence arises even if the “words” used inlitigation are the things that are modified, destroyed, altered, tampered with, orfalsified. See Viviano v. Kroll, 597 A. 2d 543 (NJ Super. Ct. 1991).

Other courts have recognized that a party’s attempted intimidation or

tampering with the testimony of a witness is “spoliation.” See Shpak v. Schertle,

629 A. 2d 763, 772 (Md. 1993) (finding that threatening a witness was “properly

admitted as evidence of spoliation”) (citing Meyer v. McDonnell, 392 A. 2d 1129

(Md. 1978)); see also, McCool v. Gehret, 657 A. 2d 269 (Del. 1995);8 Rosenblit v.

Zimmerman, 766 A. 2d 749 (N.J. 2001) (finding that alteration of medical records

is a verbal act constituting fraudulent concealment of evidence); Liberty Nat’l Life

Ins. Co. v. Sanders, 792 So. 2d 1069 (Ala. 2000) (finding spoliation where a

witness falsely testified about a fictitious telephone conference and falsified notes

from the alleged conversation).9

44

V. THERE IS NO “LITIGATION PRIVILEGE” FOR A PARTY, ITS INSURER OR

THEIR COUNSEL TO CONCEAL OR DESTROY EVIDENCE BY ENGAGING IN

WRONGFUL ACTS IN VIOLATION OF LAW AND RULES OF COURT.

A perversion of the civil justice system would occur if illegal or fraudulent

acts, which are neither required nor permitted by law in the course of litigation,

were somehow immunized because they were committed by lawyers or

participants in the litigation. Although the “litigation privilege” has its genesis in

the need to protect the words of litigants, counsel, and the court from collateral

suits for libel or defamation, it is not limitless. See Ange v. State, 123 So. 916 (Fla.

1929).

A “litigation privilege” is based upon important public policy considerations

having to do with the free and full disclosure of facts in the prosecution and

defense of actions. Such a “privilege,” however, should not and cannot be allowed

to subvert that very policy. Indeed, a careful reading of the law makes it clear that

such a privilege is confined to comments made in the due course of judicial

proceedings that are pertinent to the case and to conduct that is required or

permitted by law. As with the most inviolate attorney/client privilege, no privilege

can be used to carry out criminal or legally impermissible conduct. See American

Tobacco Co. v. Fla., 697 So. 2d 1249 (Fla. 4th DCA 1997).

The essential conditions precedent to invoking the “litigation privilege” were

set out in Ange v. State, 123 So. 916 (Fla. 1929). Words and conduct “by parties,

45

counsel, or witnesses in the due course of judicial procedure, and when relevant to

the matter in hand, and pertinent to the subject of inquiry, are privileged . . .”.

Ange, 123 So. at 917 (emphasis added). As more recently reaffirmed by this Court

in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States

Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994), the privilege only arises “‘upon the

doing of any act required or permitted by law in the due course of the judicial

proceedings.’” (quoting Ange, 123 So. at 917) (emphasis added).

Unfortunately, this Court’s decision in Levin has been given a far more

expansive meaning than what we respectfully submit was most surely intended.

Relying on dicta in Levin, the Eleventh Circuit recently concluded that under

Florida law, “the litigation privilege precludes all tort claims based on a party’s

conduct during the course of litigation …”. Green Leaf, 341 Fd.3d at 1302. In so

doing, that court and the trial judge below ignored the Levin condition precedent to

such absolute immunity – it only applies to acts “required or permitted by law in

the due course of the judicial proceeding”. Levin, 639 So. 2d at 608.

The critical underpinnings of the Levin decision are simple. Litigants cannot

be sued for defamation or other causes of action if their conduct was required or

permitted by law as part of a judicial proceeding. However, unlawful conduct is

not immunized. The only way to reconcile the cause of action that has come to be

known as “spoliation of evidence” with the “litigation privilege” is to give what we

10 However, when conduct fails to meet that test, it is at best, qualifiedly immune.See, generally, Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992); American Nat’l Title& Escrow of Fla., Inc. v. The Guarantee Title & Trust Co., 810 So. 2d 996 (Fla. 4thDCA 2002); Stucchio v. Huffstetler, 720 So. 2d 288 (Fla. 5th DCA 1998).

11 The litigation privilege was expressly considered and obviously rejected bythe majority in Bondu. Id., at 1313-14. (J. Schwartz, dissenting).

46

respectfully submit is a fair, logical, and conscionable reading to this Court’s

statements in Levin. That is, when the conduct at issue is “such as the alleged

misconduct at issue” in that case, i.e., it involves “any act required or permitted by

law in the due course of the judicial proceedings” and occurs “during the course of

a judicial proceeding” and “has some relation to the proceeding,” then it is

absolutely immune from civil liability. Levin, 639 So. 2d at 608.10

The destruction of evidence, concealment of documents, and threats to

witnesses are not made “in the due course of judicial proceedings” nor do they

properly “relate” to the proceedings. Instead, these are unlawful acts that, while

they may occur during the litigation, are not the type of words or acts that should

be tolerated in a judicial proceeding. Unquestionably, as expressly held in Bondu,

such legally impermissible conduct permits a cause of action for “spoliation” by

the plaintiff against a defendant hospital that has thereby thwarted plaintiff’s

medical malpractice claim.11

In the present case, it was not “required or permitted by law” for the

Hospital to destroy or conceal the critical records regarding the events surrounding

the aborted catheterization and the Patient’s respiratory arrest; it was not “required

12 An absolute litigation privilege only applies when alleged misconduct is done“pursuant to court order.” American Nat’l Title, 810 So. 2d 996 (Fla. 4th DCA 2002).When conduct is alleged that is not pursuant to court order or, as here, violates the rulesof Court and the law, only a qualified privilege, at best, may arise. Such a privilegemust be raised by affirmative defense and involves questions of fact that cannot beresolved on motion to dismiss. Id., at 998; see also Shafran v. Parrish, 787 So. 2d 177(Fla. 2d DCA 2001).

47

or permitted by law” for the Hospital to conceal the existence of hospital

documents showing Ahmad was not even qualified to do the invasive procedure

which caused such dire consequences to the Patient; it was not “required or

permitted by law” for the Hospital and the Insurer to tamper with the testimony of

a critical witness while he was on the stand and to coerce and intimidate its

employees from telling the truth. Undoubtedly, the first prong of the “privilege”

test was met by the Spoliators – that is, such evidence was clearly “relevant” and

“pertinent to the subject of inquiry.” However, the essential second prong of the

test - the doing of acts by litigants which are “required or permitted by law in the

due course of the judicial proceedings” – was not.

It was this important distinction that caused the court in American National

Title and Escrow of Florida, Inc. v. The Guaranty Title and Trust Co., 810 So. 2d

996 (Fla. 4th DCA 2002), to reverse the dismissal of the complaint in that case

where the trial court overly construed the “litigation privilege.” In reversing, the

court found, “These allegations, if proved, would not be protected by the absolute

litigation privilege which protected the law firm for doing things pursuant to court

orders.” American Nat’l Title, 810 So. 2d at 998.12

48

The distinction between an absolute privilege from being sued for harm

allegedly caused by untruthful words or permissible conduct during a judicial

proceeding – as opposed to the wrongful concealment of evidence even though it

may involve “words” – was analyzed in Viviano v. Kroll, 597 A.2d 543, (NJ Super.

Ct. 1991). In upholding plaintiff’s judgment for fraudulent concealment of

evidence (the New Jersey nomenclature for “spoliation of evidence”), the Viviano

Court made the following salient observations:

“In each of those cases [finding a litigation privilege], the essence ofthe plaintiff’s claim was that he had been wronged by the defendant’swords. In each case the court held that even maliciously falsetestimony would not entitle the plaintiffs to redress.”

*****

“The present case differs from those in which courts recognize anabsolute privilege for germane statements made in the course oflitigation because in this case false testimony is not the gravamen ofplaintiff’s claim. The wrong for which she seeks redress is theconcealment of evidence -- the Brandt memorandum…The testimonywhich defendants gave during the discovery proceedings in thepersonal injury action was material only because it tended to provethat defendants’ concealment of the Brandt memorandum waswillful.” (emphasis added)

*****

“Plaintiff’s cause of action in the present case is analogous to arecently recognized cause of action for destruction of evidence whichhas been dubbed “spoliation of evidence”.”

*****

“Immunizing the willful destruction or concealment of evidencewould not further the policy of encouraging testimonial candor. …

49

Destruction of evidence known to be relevant to pending litigationviolates the spirit of liberal discovery. Intentional destruction ofevidence manifests a shocking disregard for orderly judicialprocedures and offends traditional notions of fair play. Consequently,recognizing the defendants’ liability for willfully concealing theBrandt memorandum is not inconsistent with either the letter or therationale of [the] policy of affording immunity to testimony givenduring the course of judicial proceedings.”

597 A. 2d at 549-50 (citations omitted).

The Spoliators had no absolute privilege to conceal and destroy evidence

and tamper with witnesses as part of their extensive efforts to preclude Plaintiff

from proving her case. The fact that the evidence was highly relevant and

“pertinent to the subject of inquiry” should not shield litigants from the damages

they avoided through their unlawful acts; but, to the contrary, is the reason a cause

of action for spoliation of evidence should lie.

No duty, right, privilege or legal entitlement does or should exist to conceal

or destroy records required by law to be maintained, to intimidate or coerce

witnesses (whether prior to or during a judicial proceeding), or to tamper with a

witness’s testimony (either by a party or at the behest of a party). Plaintiff’s

Second Amended Complaint states a cause of action against the Spoliators and it

should not have been dismissed.

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VI. CONCLUSION

An injured party has a valuable constitutional right to full redress of injury

and access to a fair trial. To preserve those rights, a cause of action for spoliation

of evidence must lie against any party who wrongfully deprives a plaintiff of

critical evidence. The decision of the Second District denying that cause of action

against litigants who spoliate evidence should be quashed; the decision of the

Second District disallowing prosecution of a spoliation claim until after a final

adverse judgment on all possible first party claims should be quashed; and this

Court should exercise its authority to clarify the scope of the cause of action for

spoliation of evidence.

Respectfully submitted,

LAW OFFICE OF W. C. GENTRY, P.A.

W. C. GENTRYFlorida Bar No. 137134JENNIFER K. MILLISFlorida Bar No. 0182060One Independent Drive, Suite 1701Jacksonville, Florida 32202(904) 356-4100(904) 358-1895 - Facsimile- and –

CORINNE C. HODAK, ESQUIRE 1920 San Marco Boulevard Jacksonville, FL 32207 (904) 399-2008

51

(904) 399-2980

- and –

WESLEY A. FINK., ESQUIRE

Fink & Sweet P.O. Box 1866 Ormond Beach, Florida 32175-3502 (386) 441-3234

Attorneys for Plaintiff/Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished toRAFAEL E. MARTINEZ, ESQ., McEwan, Martinez & Dukes, P.A., 108 EastCentral Boulevard, P. O. Box 753, Orlando, Florida 32801, Attorneys for AmirAhmad, 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 33609, Attorneys for American Continental InsuranceCompany; by Federal Express Delivery, this 12th day of January, 2004.

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)(2), FloridaRules of Appellate Procedure.

ATTORNEY