Appellate Division, Fourth Department
Spoliation of Evidence — Intentional Conduct
Johnson v. Ayyub, et al.
Appealed from Supreme Court, Allegany County
Background: The plaintiff commenced a medical malpractice action after the death of her husband, who died of lung cancer. The decedent had a CT scan of his chest and was told there was no sign of cancer. Two years later he was diagnosed with Stage IV lung cancer with metastasis to the brain. During the pendency of the action, the “lung window” films went missing. The plaintiff acknowledged receipt of the medical records, but asserts that the films were not included in the file. The defendant moved for spoliation of evidence on the grounds that it could not properly defend the claim. The court dismissed the motion, but would allow for an adverse inference charge at trial. The defendant appealed.
Ruling: The Appellate Division affirmed. The court held that the striking of a pleading is warranted only where the spoliation results from the intentional destruction of evidence or where a party’s ability to defend the action is fatally compromised. There is no evidence of intentional destruction, nor is the loss of the films fatal to the defendants’ case.
J. Mark Gruber of Roach, Brown, McCarthy & Gruber for the defendants-appellants; Jeffrey A. Black of Dwyer, Black & Lyle for the plaintiff-respondent