Can spoliation sanctions be imposed for failing to submit to physical examination prior to undergoing surgery on body part allegedly injured by defendant’s tortious conduct?

The First Department answered a legal question trial courts have been wrestling with for the past few years: Can spoliation sanctions be imposed on a plaintiff who fails to submit to a physical examination prior to undergoing surgery on a body part that the plaintiff claims was injured by the defendant’s tortious conduct? The First Department held unanimously that sanctions cannot be imposed because “the condition of one’s body is not the type of evidence that is subject to a spoliation analysis.” 

In Gilliam, the court reasoned that the spoliation analysis has long been applied to a party’s destruction of inanimate evidence (e.g., documents, surveillance videos and electronic data) and should stay that way. The state of one’s body, the First Department argued, is fundamentally different from the “destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate.” The First Department also concluded that subjecting a plaintiff’s health condition to spoliation analysis is antithetical to personal liberties and personal autonomy over our own bodies.

The First Department’s decision effectively changes the landscape of civil litigation and the role of medical examinations in personal injury litigation. The decision is currently under appeal. 

^{Case Law Alerts, 1st Quarter, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}