PERSONAL INJURY CORNER
Adverse Inference Instruction
TED BABBITT
Most people think about spoliation as an intentional act of destroying evidence but a recent decision of the 4th District Court of Appeal holds that the giving of the adverse inference instruction is appropriate even where there is no evidence of intentional destruction of evidence and where there is no duty to preserve the evidence . Adamson v . RJ
Reynolds 4019-3242 July 21 , 2021 was an Engle progeny wrongful death action where the defendant requested the adverse inference instruction based upon the destruction of plaintiff decedent ’ s medical records by her husband . It was undisputed that based upon a record kept by the law firm hired by the plaintiff that plaintiff ’ s decedent husband shredded the records in April of 2006 because he felt they were so old he didn ’ t think he would ever need them .
There was a significant issue in the case as to the type of cancer that plaintiff ’ s decedent had . Plaintiff took the position that it was primary lung cancer and defendant took the position that the type of cancer couldn ’ t be determined because of the lack of records . In order to qualify as an exception to the statue of limitations it was necessary for the Plaintiff to show that , in fact , it was primary cancer . Defendant took the position that it was impossible to know what type of cancer it was without the missing medical records . The defendant asked for and received the standard jury instruction 301.11a which permits , but does not require , the jury to draw an adverse inference if the jury concludes that a party lost or destroyed evidence that would have been material in deciding the disputed issues in the case .
In affirming the trial court giving of the spoliation instruction the court held at page 7 “ First-party spoliation occurs when a party to the action " lost , misplaced , or destroyed " evidence . Martino v . Wal-Mart Stores , Inc ., 908 So . 2d 342 , 345 n . 2 ( Fla . 2005 ). When a party has intentionally interfered with the adverse party ' s access to critical evidence , " a wide range of sanctions is available to the trial court under Florida Rule of Civil Procedure 1.380 ( b )( 2 )." Pub . Health Tr . of Dade Cnty . v . Valcin , 507 So . 2d 596 , 599 ( Fla . 1987 ). However , when essential evidence is unavailable due to a party ' s negligence , a rebuttable presumption arises in favor of the other party . Id . " Prior to a court exercising any leveling mechanism due to spoliation of evidence , the court must answer three threshold questions : 1 ) whether the evidence existed at one time , 2 ) whether the spoliator had a duty to preserve the evidence , and 3 ) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense ." Golden Yachts , Inc . v . Hall , 920 So . 2d 777 , 781 ( Fla . 4th DCA 2006 ).
The court at page 8 makes it clear that an adverse inference may arise even in the absence of a duty to preserve evidence . Under Detzner and Golden
Yachts , an adverse inference may arise even in the absence of a duty to preserve evidence . " Unlike an adverse presumption instruction , where the court must find the spoliator was duty-bound to preserve the evidence , an adverse inference may arise in any situation where potentially selfdamaging evidence is in the possession of a party and that party either loses or destroys the evidence ." Golden Yachts , 920 So . 2d at 781- ( internal quotation marks omitted ).
Florida Standard Civil Jury Instruction 301 . ll ( a }, adopted in 2016 , is the standard adverse inference instruction . This instruction informs the jurors that they may , but are not required to , infer that missing evidence would be unfavorable to a party if the jury finds the following : ( 1 ) a party ; ( 2 ) lost , destroyed , or otherwise made unavailable evidence while it was within that party ' s possession , custody , or control ; and ( 3 ) the evidence would have been material in deciding the disputed issues in this case . Fla . Std . Jury Instr . ( Civ .) 301 . ll ( a ). Instruction 301 . ll ( a ) is consistent with the notion that an adverse inference may arise even in the absence of a duty on the part of the spoliating party to preserve the missing evidence .
The adverse inference contained in Instruction 301.11 ( a ) is permissive in nature and “ does not rise to the level of a presumption ” Fla . STD . Jury Instr . ( Civ .) 301.1 l ( a ), Notes on Use at n . 2 . By contrast , instruction 301.11 ( b ) creates a burdenshifting presumption , but it requires the court to first determine that the spoliating party had a duty to preserve the evidence . Fla . Std . Jury Instr . ( Civ .) 301.1 l ( b ).
The facts of this case made it clear there was no evidence that plaintiff intentionally destroyed trying to hide anything . To the contrary , it appears that it was an innocent mistake , but the court emphasized that innocent or not , the loss of the evidence was material to the issues in the case and the jury had the right to find for the plaintiff notwithstanding the instruction containing the adverse inference .
This case should emphasize the importance of obtaining evidence from the plaintiff as soon as a case is accepted to avoid what could be a devastating finding .
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PBCBA BAR BULLETIN 14