Court Grants Plaintiff Motion for Spoliation Sanctions After Defendant Nurse Disposes of Contemporaneous Accident Notes
In Alicea v. Continental Casualty Company, No. 15-1941-PAD-BJM, (D. Puerto Rico, 2018), Sandra Cruz Vargas Alicea, Brian Rafael Cruz Vargas, Steven José Cruz Vargas, and Michael Ruben Cruz Vargas (collectively “Plaintiffs”) moved for spoliation sanctions against Continental Casualty Company, Bio-Medical Applications of Ponce, Inc., John Doe, Inc. and ABC Insurance Company (collectively “Defendant”) based on the actions of nurse María Ramos La Torre (“Ramos”).
On June 3, 2013, Hector Cruz (“Cruz”) had dialysis at Defendant’s clinic. Right after the treatment, Cruz stood and then fell to the floor and had a seizure. Cruz was taken to a hospital. A log entry, written that night or early the next morning by one of the Defendant’s employees summarized the event of the night as ‘the nurse (Ramos) allowed Hector Cruz to fall, he has a head wound and he convulsed. 911 was called. No relative could be contacted.’ An official report for the clinic (Adverse Event Form) was not filled out until the next day, and Ramos used a scrap of paper which had notes from the prior evening to refresh her memory. This paper was different from her official notes from the same evening. Ramos then threw the piece of paper away. In the Adverse Event Form Ramos filled out the next day, recounting Cruz’s fall, she stated that she told Cruz to wait for her and not to get up until she was there to help. The description of the Cruz’s fall was much more complete in the form Ramos filled out the next day than the summary in her official notes from the night before. The two accounts differed.
Plaintiffs seek sanctions, including an adverse inference instruction because Ramos threw away the paper with the notes on it that Defendant knew could be potentially relevant to Plaintiffs and their claims.
Spoliation is the failure to preserve evidence that is relevant to pending or potential litigation. To prove spoliation, the moving party must proffer evidence sufficient to show that the party who destroyed the document knew of the claim, and the document’s potential relevance to that claim. If the evidence is there, the court has considerable discretion in determining whether and which sanctions are warranted. Such sanctions may include an adverse inference instruction whereby the trier of fact may infer from a party’s destruction of a document relevant to a litigated issue that the contents of the document were unfavorable to that party.
In this case it was clear that there was a potential for litigation by the time Ramos threw away the notes. At that point, Cruz had already fallen, and Defendants had called 911 to get him to a hospital. Furthermore, Defendants had printed out and had its employee, Ramos, fill out an Adverse Event Form.
As for the second prong of the test, Plaintiffs have shown that Defendants knew of the potential relevance of Ramos’s notes to Plaintiffs’ claim. Here, Ramos took the notes at issue while treating Cruz immediately after his fall; the notes included Cruz’s vital signs, and possibly the time of the fall. There may have been discrepancies between the notes that Ramos threw away and the Adverse Event Form, but the Plaintiff will never know. Either way, Defendant knew that Ramos’s notes could be relevant to Cruz Vargas’s claim. Consequently, Defendant should not have destroyed the notes.
Plaintiff has also shown that she was prejudiced by the disposal. It was the only truly contemporaneous account of Cruz’s fall. Because Plaintiff presented sufficient evidence to prove both elements of spoliation and shown that she was prejudiced by the spoliation, this Court finds an adverse inference sanction is warranted.