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MISSING EVIDENCE?
YOU MAY BE TO BLAME IF YOU DESTROYED OR EVEN IF MERELY LOST!
When a lawsuit is filed, evidence to prove a point is frequently sought. What happens when a party to the lawsuit destroyed or lost the evidence? If the evidence is critical for the other side proving its case, then there may be a presumption that the lost evidence would have helped the other side which can cause the loss of the case!
In a recent decision, a Florida appellate court ruled that a trial court did not err when instructing that the jury could make an “adverse inference” from missing evidence. In Adamson v. R.J. Reynolds, 46 Fla. L. Weekly D 1679 (Fla. 4th DCA, July 21, 2021), Jacklyn Adamson, who smoked 50 cigarettes a day, was diagnosed with lung cancer at age 40 and died one year later in 1993. In 2006, her husband filed a wrongful death lawsuit against cigarette manufacturer R.J. Reynolds. One of the disputes in the case was whether Ms. Adamson’s lung cancer originated in her lungs and then spread elsewhere, or whether her cancer originated elsewhere and then spread to her lungs.
The only medical records that were available were about 42 pages memorializing Ms. Adamson’s hospitalization and tumor surgery in 1993. The report stated: “This is a woman who presents with a lung mass of May of 1992.” Without copies of more medical records, the defense experts were unable to state with certainty where the cancer began.
When asked if he had any medical records for his wife Ms. Adamson’s husband told a paralegal at his law firm that he shredded any medical records he had for the decedent Ms. Adamson about two years earlier because they were old, and he did not think he would ever need them. R.J. Reynolds moved for a jury instruction permitting the jury to draw an adverse inference if the jury concluded that a party lost or destroyed evidence that “would have been material in deciding the disputed issue in this case.” The trial court granted the motion and issued the jury instruction, stating:
The problem with destroyed evidence, of course, is that it is unavailable. And the point of an adverse inference instruction is to inform the jury that it may (but need not) resolve the uncertainty that has resulted from the loss of the evidence against the party that lost it.
The jury returned a verdict for R.J. Reynolds.
The Florida appellate court affirmed the verdict, ruling that the trial court did not err in issuing the jury instruction. The court explained that “spoliation” occurs when a party loses or destroys evidence. When determining what remedy to impose, the court must address three questions:
- Whether the evidence existed at one time;
- Whether the spoliator had a duty to preserve the evidence; and,
- Whether the evidence was critical to an opposing party being able to prove its case or defense.
Here, the court found that the jury instruction was reasonable because the husband admitted he shredded the medical records of the decedent. The missing records would have been material in resolving disputed issues in the case. The court explained:
As Judge Sasser reasoned, the problem with destroyed evidence is that it is unavailable and thus unknowable. Exactly what medical records Mr. Adamson destroyed is unknown because he shredded them. The purpose of instruction 301.11(a) is to tell the jury that it may, but is not required to, resolve the resulting uncertainty against the party who destroyed the evidence. The materiality of the destroyed records is a jury question under Instruction 301.11(a). RJR’s proffer was sufficient to allow the jury to decide whether Mr. Adamson destroyed material evidence.
The moral to the story is that when bad things happen, do not destroy evidence!!!