Adelman et al v. Boy Scouts of America et al
Filing
307
MOTION for Leave to File Defendants' Motion to Dismiss Based on Spoliation of Evidence by Boy Scouts of America, The South Florida Council Inc., Boy Scouts of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H)(Franz, Kevin)
THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Miami Division
Howard Adelman and Judith Sclawy,
as Co-Personal Representatives of
The Estate of Michael Sclawy-Adelman,
CASE NO. 1:10-cv-22236-ASG
Plaintiffs,
District Ct. Judge: Alan S. Gold
vs.
Boy Scouts of America, et al.
Magistrate Judge: Jonathan Goodman
Defendants.
________________________/
DEFENDANTS’ MOTION TO DISMISS BASED ON SPOLIATION OF EVIDENCE
COMES NOW, Defendants, Boy Scouts of America (“BSA”), South Florida Council, (“SFC”),
Howard Crompton (“Crompton”), Andrew Schmidt (“Schmidt”) and Plantation United Methodist
Church (“PUMC”) by and through their undersigned counsel, and pursuant to Federal Rule of Civil
Procedure 37, move this Honorable Court for an Order of dismissal with prejudice or other appropriate
remedies on the basis that the Plaintiffs spoliated critical evidence which has unduly prejudiced the
Defendants’ ability to defend Plaintiffs’ claims (to wit, the personal, informed decision to disallow an
autopsy of Michael Sclawy-Adelman (“Michael” or (“Decedent”)) and in support, state as follows:
SYNOPSIS
This is a wrongful death action stemming from a tragic incident that occurred on May 9, 2009,
when Michael, then 17 years old, died on the Florida Trail while taking part in a 20 mile hike in the
Big Cypress National Park in the Florida Everglades. One day after the incident, Dr. Manfred Borges,
the Deputy Chief Medical Examiner for Collier County, sought an autopsy of Michael’s body to
conclusively determine the cause of death. Michael’s parents, Judith Sclawy and Howard Adelman,
were informed by doctors and a police detective that a conclusive cause of death could not be
determined in the absence of an autopsy and that litigation would be problematic without a known
cause of death. Armed with this knowledge, Michael’s parents, who are Jewish, refused to permit the
autopsy on religious grounds and claimed they had no intention to file suit.
The Medical Examiner
respected the wishes of The Adelman’s, and no autopsy was performed. Two days later, however,
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Howard Adelman began independently investigating the circumstances behind Michael’s death. He
expressed concerns about the way the hike was organized and conducted to Chief Ranger Ed Clark
who investigated the incident. He questioned the preparation of the scout leaders and disapproved of
the way in which they ran the troop. Three months later, Michael’s parents decided to file suit, which
was then filed approximately one year after the incident.
The refusal to allow the autopsy despite numerous requests by doctors and law enforcement
officers was in bad faith. The Plaintiffs cannot be allowed to proceed in this case. The Adelmans
made a conscious and informed decision to prevent the collection or creation of evidence by autopsy,
which would have conclusively determined the cause of Michael’s death. In otherwords, the cause of
Michael’s death is the central dispute in this case. The decision to block an autopsy, even if for
legitimate religious reasons, has so severely prejudiced the Defendants by preventing them from
conclusively proving a cause of death, that the most reasonable and appropriate remedy available is to
dismiss this action. In the alternative, Defendants move to exclude all expert testimony on behalf of
Plaintiffs concerning cause of death and/or request a jury instruction on spoliation, which raises a
presumption against the Plaintiffs.
PLAINTIFFS’ REFUSAL TO ALLOW AN AUTOPSY AND THE CRUCIAL NATURE OF
THE EVIDENCE LOST AS A RESULT
1.
The heart of this case turns on the determination of what caused Michael Sclawy-Adelman’s
death. Plaintiffs’ theory is that Michael died as a result of heat stroke. Defendants retained
medical experts who believe that the known evidence is not consistent with heat stroke and that
death was likely caused by either a sudden cardiac event or a sudden central nervous system
failure such as a spontaneous intracerebral hemorrhage. However, in the absence of an autopsy,
the Defense experts cannot more conclusively opine as to the actual cause of death, which
severely prejudices Defendants.
2.
Michael’s parents were told – one day after the incident – that without an autopsy, the cause of
Michael’s death could not be known with certainty. They were advised of the crucial nature of
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autopsy results and that without knowing the cause of death, prosecuting a civil action would be
problematic.
3. An autopsy would have determined cause of death. And, as more than two years has passed since
Michael’s death, evidence establishing his cause of death with medical probability is impossible
under any circumstance. See Affidavit of Charles V. Wetli, M.D. attached as Exhibit “A.”
4.
Despite knowing the ramifications of the lack of autopsy, Michael’s parents chose to abide by
their religious beliefs and requested that the Medical Examiner forego the autopsy. Their wishes
and beliefs were respected.
5.
Michael’s body was evidence that once existed that was crucial to the defense of this wrongful
death action. Michael’s parents engaged in an affirmative act by causing the evidence to be lost
(i.e. precluding an autopsy). They did so being fully advised of the litigation-related ramifications
of their choice. With this knowledge, the decision to preclude an autopsy was made in bad faith
and dismissal is appropriate. The informed decision by the Adelmans has ramifications. The
choice made has ramifications. The Adelmans cannot gain a litigation advantage by having
prevented the autopsy from taking place.
Plaintiff, Judith Sclawy
Q. Okay. I think I know the answer to the question, but why is it that you refused to
have an autopsy performed?
A. It’s for religious reasons.
Deposition of Judith Sclawy at pp. 145-146, ll. 25-3 attached as Exhibit “B.”
Q. Okay. When there was a discussion about an autopsy being a possibility, were
you told that one of the things they could look for was to see whether or not there was
any congenital abnormality in Michael’s body? Were you told that?
A. I don’t remember that specifically, but the medical examiner said that without it, he
would not be able to have conclusive results or something like that, or something about
testifying or something, that it was advisable, and I just couldn’t do it.
Q. Okay. I’m just asking a specific question, and that question was, did they tell you
that without doing the autopsy, they couldn’t be certain about the cause of Michael’s
death?
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A. Yes.
Q. And did they explain to you that one thing they could find is whether or not there
was something that he was born with that was abnormal, that would be discovered
on autopsy if it were present? Did they explain that to you?
A. He explained that it was my decision about the autopsy and that if he didn’t do it, it
would not be known if there was something, but I just couldn’t let him be hurt anymore.
Judith Sclawy at pp. 146-147, ll. 24-22.
Dr. Manfred Borges, Deputy Chief Medical Examiner
6. On May 10, 2009, one day after the incident, Dr. Manfred Borges, the Deputy Chief Medical
Examiner for the District 20 Medical Examiner’s Office, examined Michael’s body.
7. Michael Sclawy-Adelman was measured at 5 foot 6 and he weighed 225 pounds. He was a heavy
kid. And as we saw, he had a high heart rate, and he had high cholesterol for his age.” Deposition
of Dr. Manfred Borges at p. 88, ll. 17-21 attached as Exhibit “C.”
8. He adamantly requested that Judith Sclawy and Howard Adelman allow him to conduct an autopsy
to determine the cause of death. His parents refused based on religious grounds. See Borges at pp.
9-10, ll. 24-19; p. 21, ll. 10-16; p. 83, ll. 22-24.
Q. Okay. Did you know on the 10th that you were not going to do an autopsy?
A. Well, by the time that I did this [external examination], I knew that I was not going to
do an autopsy, because [sic] we had spoken to the parents, and we very much wanted to do
an autopsy, and that was our recommendation to the parents that an autopsy should be
done, but the parents were adamantly opposed to an autopsy. And we had extensive
communication, both with the parents, as well as internally between myself and Doctor
Mark Coburn, who you see on the wall there. That is the Chief Medical Examiner. And
eventually, the parents were very adamant, and we advised them that if they had any
inkling towards litigation that an autopsy would be recommended. And they were
adamantly opposed, and at that time said that they were . . .
Q. You said if there was any inkling towards litigation . . .?
A. that we recommended an autopsy be done and they said “What litigation?,” in
quotation marks.
Q. And when did you find out there was going to be litigation?
A. Oh, I think we found out when we started getting requests for information. I can’t tell
you, I mean I would have to go through all of this to see when the first request for our file
came in. And I was surprised, because I had been told that there wasn’t going to be
litigation.
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Q. Who told you that?
A. Well, the parents. In fact, I think there was an exact quote from the mother that said,
“What litigation.”
Q. Yeah. Do you know what made them change their mind?
A. Well, I was advised by - - I forget your name, sir
MR. PELTZ: Bob Peltz
A. Bob Peltz, Mr. Peltz, that the family saw something in regard to the number of boy
scouts that had passed away in different experiences, and that had made them decide
that they wanted to file. . . Yeah, that is what I was told.
Dr. Borges at pp. 9-11, ll. 24-25.
Q. Because there was no autopsy, there was no opportunity to determine, from a
pathophysiologic basis, if there was an abnormal heart in Michael’s case, correct?
A. Correct.
Q. And you mentioned heart rate. What was it about heart rate that caught your
attention?
A. Well, I noticed his heart rate was elevated.
Q. And what do you call “elevated”?
A. He was tachycardic. I don’t recall offhand. I would have to go into the record, but I
noticed it was elevated. From what I took that to mean, he might be somewhat
deconditioned, he wasn’t in the best of shape.
Q. Okay. The last office visit to his pediatrician his heart rate was 114 beats a
minute, and is that what you are referring to as tachychardic?
A. Yes.
*
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A. Oh, shoot, this is very, very poor. Heart rate is 114, blood pressure 133 over 84. So he
was somewhat elevated blood pressure.
Borges at p. 18-20, ll. 3-18; p. 20, ll. 13-15.
Q. So the last two times he went to the pediatrician eight or nine months apart, his
heart rate was 114 beats per minute?
A. Yes.
Q. That is abnormal; is it not?
A. Yes, it is
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*
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Q. So not only was it important to know what the cause of Michael’s death was, it
was important, if there was an abnormality, congenital abnormalities, for the parents
to have that information from the postmortem examination.
A. Yes.
Q. And you told them that?
A. Yes, I did.
*
*
*
A. “She [Judith Sclawy] advised that her son had no medical problems, and in fact, had
recently seen a doctor. She pleaded with me not to do an autopsy. I could hear her
husband in the background stating that he did not want an autopsy. . . I advised that
without an autopsy, I would not have a definitive cause of death. At best, I could be able
to say probable on the death certificate. Without an autopsy, I could not find congenital or
hereditary problems.”
Dr. Borges at pp. 21-23, ll. 3-25. See also pp. 44-46, ll. 8-2.
Q. The reason you wanted to perform an autopsy and the reason you strongly
recommended an autopsy to all the people you talked to, was what?
A. I always want to generate the more data that I can in a situation like this, as far as, you
know, not being limited to just external and so forth. Had I done an autopsy, I would have
had a good view of Michael’s heart. I probably would have sent the heart to a cardiopathologist. I could have excluded cardiac conditions that were occult. I could have also
excluded neurological conditions. I would have sent the brain to a neuropathologist. I
probably could have done a lot more toxicologic studies. I would have had access to the
organs. I would have had access to microscopic examination of the tissues. So there
would have been a considerable amount of more information. And rather than being
limited to saying “probably heat stroke,” because I still believe it is heat stroke. All of the
terminal circumstances point to heat stroke. All of the features that we are saying point to
heat stroke, but environmental circumstances point to heat stroke. So I believe that is the
cause of death. But I would have been able to eliminate others. So that I would have,
rather than saying probable, the death certificate would have said heat stroke, and we
would have eliminated all of those things. I was not able to do that. I was precluded from
doing that by not having done an autopsy.
Dr. Borges at pp. 96-98, ll. 23-1.
9. Dr. Borges testified that Michael’s parents refused an autopsy for religious reasons. However, he
has performed autopsies on Orthodox Jewish people in the past.
Q. Is it a policy of this office to respect the religious beliefs of those individuals, unless
there is some compelling state interest in which not to do so?
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A. We definitely, most definitely respect the objections. There are autopsies that are
mandated, homicides and suicides are mandated. There are others that are recommended.
This would fall under that category, and obviously, we would respect their objections. We
have done autopsies on people who are Orthodox Jewish. We have the Rabbi present, and we
try to remove as little blood and as little tissue as possible and return it to the body with the
Rabbi present. It has been done and that could have been done in this case, but it wasn’t.
Dr. Borges at p. 82, ll. 9-24.
Chief Medical Examiner, Dr. Mark Coburn
10. Dr. Coburn took written notes on May 10, 2009 about the necessity of conducting an autopsy.
Parents have told Michelle that they are Orthodox Jews and are adamantly opposed to an
autopsy and wish to speak directly to Dr. Borges. I asked Dr. Borges to fully explain to
the family why we recommend that an autopsy be done and that without one we are not
able to definitively determine if the child died of heat/dehydration except [sic] symptoms,
terminal event and lack of other medical history. I also asked that they be made aware that
hereditary disorders or congenital heart problems would not be diagnosed, which may be
important for the family to know for the sake of other children, if they have any others, or
will have. Finally, without an autopsy, litigation may be problematic.
Dr. Borges called back after speaking to family. He told me what he told the family
regarding litigation – to which mom asked? What litigation? – and also about
congenital and hereditary disorders – to which she answered “I don’t care.”
I spoke to Det. O’Neil and federal agent Dave _____(spelling) I explained why we are not
able to perform an autopsy over the family’s objections. The concern is now whether the
scout master is negligent and culpable for making the by hike 20 miles –
Det. O’Neill is concerned that the parents will later want to sue the Scout master or
will want him prosecuted criminally and we may not have enough information without an
autopsy to determine certain things. I told him that his concerns were valid and that while
that may become an issue, at this point in time I had no statutory right to hold the body
further or to perform an autopsy above the family’s objections and he understood.
See Notes of Dr. Coburn dated 5-10-2009 and 5-11-2009 attached as Exhibit “D.”
Dr. William Hearn, Director of the Toxicology Laboratory
11. Dr. Hearn, the Director of Toxicology at the Miami Dade Medical Examiner Department, testified
that Dr. Borges attempted, but was unable to extract urine from Michael during the examination.
See Deposition of Dr. William Hearn at p 15, ll. 2-7 attached as Exhibit “E.”
Q. So for whatever reason the ME’s office in Collier County determined not to do
ocular fluid, not to do urine, not to do gastric contents, liver, bile, brain or other?
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A. Well, not exactly. Let me explain. Since there was no autopsy they couldn’t obtain
some of these samples. There was an objection to an autopsy. He drew the blood by
sticking a needle in through the skin and penetrating the femoral vein. As far as urine he
tried to get urine, although the normal procedure would be to expose the urinary bladder
and then stick a needle into it and draw urine out, but that would have required an autopsy
so he had to again stick a needle through the stomach or the abdomen and into the bladder
and try to get some urine.
Dr. Hearn at p. 23, ll. 3-17
Q. Why is an autopsy the preferred way to investigate a death?
A. It’s because you may not be able to see something that would be obvious if you were
looking at the actual tissue, the organs and so forth. You may not be able to see it if you
don’t open up the body and examine those tissues. You can’t weigh the organs, for
example. You can’t detect a hemorrhage in the brain if the person is already dead. .
Dr. Hearn at p. 55, ll. 10-20
Q. If Dr. Borges felt that an autopsy was necessary to perform his official duties,
does he have the authority to go ahead and order the autopsy to be done?
A. He has the authority if, like, for example if it were a homicide, then it would be
essential . . . but it’s not required in cases where there’s not going to be any kind of
potential criminal litigation or something like that. It would have been better for all of you
if he had done an autopsy because he then would have more thoroughly documented what
was present, but –
Dr. Hearn at p. 86, ll. 7-22.
Detective Kevin O’Neill
12. Detective Kevin P. O’Neill, detective in the major crimes unit of the Collier County Sheriff’s
Office, investigated the subject incident. See deposition of Kevin O’Neill at p. 5, ll. 10-16 attached
as Exhibit “F.”
13. Shortly after the incident, he was informed that no autopsy would be done on Michael.
Q. Were you trying to get an autopsy?
A. I preferred to have an autopsy done.
Q. And why is that?
A. Because it advances to exactly what the cause of death was.
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Q. Okay. And then you contacted the park special agency and told them about
that decision?
A. Yes, I did.
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Q. What was his response?
A. He preferred to have an autopsy done too.
*
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*
Q. And this is again a section where there’s a - - it talks about whether or not
there should be an autopsy?
A. Correct. At the time I just - - I didn’t think I had probable cause to get a court
order to force an autopsy to be conducted, and I concurred with the State Attorney’s
Office with my facts that I had and they concurred that it did not have probable cause
at that time to force an autopsy.
O’Neill at pp. 39-42, ll. 13-16.
Q. Okay. Now, on the next page of the same note, it says: . . . Det. O’Neill is
concerned the parents will later want to sue the Scout Master or want him
prosecuted criminally and we may not have enough information without an
autopsy to determine certain things. I told him [Dr. Coburn] that his concerns
were valid and that while that may become an issue, at this point in time I had no
statutory right to hold the body further or to perform an autopsy above the
family’s objections, and he understood. Do you remember that conversation
with Dr. Coburn?
A. I remember having that conversation with Dr. Coburn that I preferred to have the
autopsy done to answer many questions.
O’Neill at p. 65, ll. 2-19.
Howard Adelman and Chief Ranger Ed Clark: Investigation and the Decision to Sue
14. Despite Judith Sclawy responding to inquiries into potential litigation with, “What litigation?”
Howard Adelman began investigating the incident on May 11, 2009. He spoke with Chief Ranger
Ed Clark that day and expressed significant concerns about the preparation, organization and
execution of the subject hike.
Q. When did you first talk to either Mr. Adelman or the mother, Ms. SclawyAdelman?
A. It would have been either the very next day or the day after that. Shortly after that,
because I was contacted by Mr. Adelman.
Q. Okay.
A. He had concerns about the – the way the hike was conducted
See Deposition of Chief Ranger, Ed Clark at p. 17, ll. 5-12 attached as Exhibit “G.”
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A. He expressed concerns about the way the hike had been organized, and he offered to
send me an e-mail that had to do with how the hike was organized - - which he did.
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A. But his concerns were that he thought that the hike – that not a lot of preparation had
gone into the hike. He thought that one of the scout leaders was – I’m not sure of the
terminology that he used, but – tended to just wing it.
Chief Ranger Clark at pp. 18-19, ll. 9-2.
*
*
*
Q. Okay, did they leave you with the impression – did he leave you with the
impression that he disapproved of the way that these two men were running their
troop?
A. Yes.
Chief Ranger Clark at p. 38, ll. 1-4.
Q. Okay. Okay. In the one and only e-mail that Mrs. Adelman sent you that we
marked as Exhibit number 2, he essentially just forwarded you an e-mail that he
received in relation to this hike?
A. Yes.
Q. Okay, did you consider this e-mail to be part of your – part of the ranger’s
investigation of what happened to Michael?
A. Yes.
Chief Ranger Clark at p. 60, ll. 8-16.
15. Even before Howard Adelman expressed his concerns about the organization and preparation of
the hike, Ranger Clark believed that litigation would ensue.
Q. When he called you on May 11th, with – and told you he was critical of the hike,
was that your first indication that a – legal claim might result from this?
A. No, not really.
Q. Okay, when – when did when did you get that – that feeling?
A. The night of it.
Q. The night of it; okay.
A. Yeah.
Q. So, immediately?
A. Based on my experience.
Chief Ranger Clark at p. 27, ll. 3-14.
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16. Chief Ranger Ed Clark also informed Howard Adelman that a lack of autopsy could negatively
impact the investigation.
Q. During your conversations with Mr. Adelman, did you ever inform him that a
lack of autopsy could impact the investigation?
A. Yes.
Q. Okay, what did you tell him in that regard?
A. Just that – the lack of a – of an autopsy could have a result on the investigation.
Q. And did he have a reaction to that statement?
A. Yeah, I think if – if I remember right, he was fall – he had to fall back on his beliefs.
Q. Okay.
A. And if I remember correctly, he made mention that he believed that his wife was more
conservative in those beliefs than he was, that he probably would have allowed that to
happen, but she did not want to and he honored her wishes.
Chief Ranger Clark at pp. 106-107, ll. 21-11.
17. Chief Ranger Ed Clark and Ranger Gary Shreffler met with the Adelman’s on August 13, 2009 and
summarized the Rangers’ entire investigation. This convinced the Adelman’s to file suit.
Q. Okay, and what was said to them that – that you think convinced them to file a
lawsuit against the two fathers that were out of there – out in the hike, and the rest of
the defendants? . . . what was – what was said to the Adelmans by Gary [Shreffler]
that you believe led them to file a lawsuit?
A. We summarized the entire investigation.
Chief Ranger Clark at pp. 47-48, ll. 19-3.
18. Michael’s parents decided to sue following on August 13, 2009 following the Rangers’ visit.
Q. Okay. Before you retained any lawyers, when did you and/or your wife
determine that you were going to proceed with the lawsuit? Just when in time was
that?
A. Probably about the time the rangers drove out of our parking in front of the house.
Q. You’re talking about Clark and Shreffler?
A. Shreffler and Clark, yes.
Deposition of Howard Adelman at p. 20, ll. 6-12; see p. 50, ll. 18-20 attached as Exhibit “H.”
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MEMORANDUM OF LAW
Spoliation of Evidence
“A litigant is under a duty to preserve evidence which it knows, or reasonably should know, is
relevant in an action. Sanctions may be imposed upon litigants who destroy documents while on
notice that they are or may be relevant to litigation or potential litigation . . .” Banco Latino, S.A.S.A.
v. Gomez Lopez, 53 F.Supp. 1273, 1277 (S.D.Fla. 1999) (emphasis added).
“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve
property for another’s use as evidence in a pending or reasonably foreseeable litigation.” Graff v. Baja
Marine Corp., 310 Fed.Appx. 298 at *2 (11th Cir. 2009) (quoting West v. Goodyear Tire & Rubber
Co., 167 F.3d, 776, 779 (2nd Cir. 1999)); see Green Leaf Nursery v. E.I. DuPont de Nemours & Co.,
341 F.3d 1292, 1308 (11th Cir. 2003). Federal Courts possess an inherent power to impose sanctions
for spoliation. See Flury v. Daimler Chrysler Corp., 427 F.3d 939, 943-945 (11th Cir. 2005); see also
Banco Latino at 1277. Federal law governs the imposition of spoliation sanctions. Flury, at 944.
“The Eleventh Circuit has held that appropriate sanctions for spoliation may include, among
other things, (1) dismissing the case; (2) excluding expert testimony; or (3) instructing the jury that
spoliation of evidence raises a presumption against the spoliator.” Doe v. Miami-Dade County, --F.Supp.2d ---, 2011 WL 2790201 at n.7 (S.D.Fla.) (citing Flury, 427 F.3d at 945); Managed Care
Solutions, Inc. v. Essent Healthcare, Inc., 736 F.Supp.2d 1317, 1323 (S.D.Fla. 2010); Britton v. WalMart Stores East, L.P., 2011 WL 3236189 at *10 (N.D. Fla.); Point Blank Solutions, Inc. v. Toyobo
Am., Inc., 2011 WL 1456029 at *9 (S.D.Fla.).
To establish spoliation, the movant must show: (1) “that the missing evidence existed at one
time; (2) that the spoliator had a duty to preserve the evidence and (3) that the evidence was crucial to
the movant being able to prove its prima facie case or defense.” Managed Care at 1322.
In this Circuit, failure to preserve evidence rises to the level of sanctionable spoliation when it
is predicated on bad faith.1 No showing of malice is necessary to establish bad faith. Mann v. Taser
1
But see Flury, 427 F.3d at 945 (stating that “bad faith” is one of a handful of factors to consider when determining
whether sanctions should be imposed for spoliation) and Managed Care Solutions, 736 F.Supp.2d at 1328, n.16
(recognizing the Flury factors and evaluating the instant facts under those factors).
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Intl., Inc., 588 F.3d 1291, 1310 (11th Cir. 2009). One example of bad faith is “when a party purposely
loses or destroys relevant evidence.” Doe 2011 WL 2790201 at *5 and Managed Care Solutions 736
F.Supp.2d at 1322 (citing Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)).
While federal law governs spoliation sanctions, this Court may look to state law for guidance.
Managed Care Solutions 736 F.Supp.2d at 1322. “Florida law on spoliation is consistent with federal
law.” Id. (internal citations omitted). “The doctrine of spoliation arises when it is alleged that a
crucial piece of evidence is unavailable due to one of the parties’ actions” Vega v. CSCS Intl., N.V.,
795 So.2d 164, 166 (Fla. 3d DCA 2001) (internal citation omitted).
The Fourth District Court of Appeal has held that dismissal of a lawsuit as a sanction for
spoliation of evidence is appropriate when a Plaintiff refuses to give permission to exhume her
husband’s body for an autopsy based on her religious beliefs. Hammer v. Rosenthal Jewelers
Supply Corp., 558 So.2d 460, 461 (Fla. 4th DCA 1990) see also Robert D. Peltz, The Necessity of
Redefining Spoliation of Evidence Remedies in Florida, 29 Fla. St. U. L. Rev. 1289, 1295-1295
(2002). Even though the refusal of an autopsy was based on religious grounds, the Hammer Court
stated that the case would be dismissed with prejudice unless Plaintiff consented to an autopsy, which
would establish causation of death. Hammer 558 So.2d at 461.
As Mr. Peltz points out, the decision
to preclude an autopsy can equate to spoliation of evidence under Florida law.
ESTABLISHING SPOLIATION
1)
The Existence of Evidence
It is undisputed that Michael’s body was available for an autopsy the day after he died. Dr.
Borges, the medical examiner, pleaded with Howard Adelman and Judith Sclawy to allow him to
conduct an autopsy. He informed them that, through an autopsy, he would be able to determine the
cause of death with absolute certainty.
2) Michael’s Parents had a Duty to Preserve the Evidence
It is undisputed that Judith Sclawy and Howard Adelman knew, or reasonably should have
known that the results from Michael’s autopsy would be relevant in a wrongful death action. See
Banco Latino at 1277. They were told this by Dr. Borges, Dr. Hearn and Detective O’Neill. Sanctions
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may be imposed on litigants who spoliate evidence while on notice that such evidence may be relevant
to potential litigation. Id. See also Graff 310 Fed.Appx. at 301. (holding that the district court did not
abuse its discretion when it imposed sanctions for spoliation, because it was undisputed that “plaintiffs
destroyed evidence when litigation was reasonably foreseeable.”). Therefore, Michael’s parents owed
a duty to preserve his body for an autopsy.
3) An Autopsy of Michael Would have Been Crucial to Establishing Cause of Death
Cause of death is one of, if not the most hotly disputed issues in this case. Why did Michael
die that day when he carried more water than anyone else and no one else in their group had any
medical issues during or after the hike? Dr. Borges, Dr. Coburn and Detective O’Neill all state that an
autopsy would have established cause of death with certainty. All three cautioned the Plaintiffs that
without an autopsy, litigation would be problematic. Because causation is en element this wrongful
death, negligence action, it is indisputably crucial to the Plaintiffs’ case and the defense.
The
statement by the 11th Circuit in Flury applies equally to the present matter: “This case hinges upon the
significance of the evidence destroyed, and upon the extreme prejudice the defendant suffered as a
result.” Flury 427 F.3d at 943. The most crucial and reliable evidence as to Michael’s cause of death
available was an autopsy. See Flury at Id. See also Esgro v. Trezza, M.D., 492 So.2d 422, 423 (Fla. 1st
DCA 1986) (authorization for exhumation for an autopsy was appropriate where medical examiner
stated there was a “good possibility” that the autopsy would be revealing).
4) Bad Faith
Bad faith must be established prior to imposition of a sanction. Bad faith may be founded on
direct evidence or on circumstantial evidence under the following criteria:
1. Evidence once existed that could fairly be supposed to have been material to the claims at issue
2. The spoliating party affirmatively acted so as to allow the evidence to be lost
3. That party did so while it knew or should have known of its duty to preserve the evidence and
4. The affirmative act causing the loss cannot be credibly explained as not involving bad faith
Doe, 2011 WL 2790201 at *5; FTC v. First Universal Lending, LLC, 773 F.Supp.2d 1332, 13531354 (S.D.Fla. 2011).
“‘[B]ad faith’ depends in large part upon the importance of the evidence to a fair trial and the
extent to which the spoliation had notice of that importance and of the need to preserve the evidence.”
14
Britton, supra at *12. As stated above, malice is irrelevant in terms of establishing bad faith. Bad
faith, in terms of sanctionable spoliation, can occur “when a party purposefully loses or destroys
relevant evidence” or “engage[s] in an intentional affirmative act causing [evidence] to be lost.”
Doe, 2011 WL 2790201 at *4 (emphasis added); see also Walter v. Carnival Corp., Slip Copy, 2010
WL 2927962 at *3 (S.D. Fla.) (finding no bad faith due to lack of evidence showing that Carnival
engaged in an “intentional affirmative act” causing the evidence to be lost). The Britton Court even
states that bad faith spoliation can be the result of “deliberate or reckless indifference” for the
preservation of evidence. Britton, 2011 WL 3236189 at *13 at n. 3.
Plaintiffs may argue that the
religious-based decision to preclude the autopsy cannot be considered “bad faith.” The Hammer,
decision, supra, already spoke to this delicate issue:
The trial court was faced with a difficult balancing decision between the rights of appellees
to have access to medical information with which to attempt to defend the claim and perhaps
promote settlement, which could only be obtained by exhumation and autopsy, against Mr.
Hammer’s well-founded religious objections. Although the medical opinions were
inconclusive, as they tended to show an autopsy would likely provide relevant information,
the ordering of the autopsy was warranted. Esgro v. Trezza, 492 So.2d 422 (Fla. 4th DCA
1986), rev. denied, 501 So.2d 1281 (Fla. 1986). We therefore affirm the trial court’s order.
At that point, Mrs. Hammer chose to value protection of her husband’s memory and her
religious beliefs over going forward with the suit.
Hammer, 558 So.2d at 461.2
Here, Judith Sclawy and Howard Adelman chose to value the protection of Michael’s memory
and their religious beliefs over filing suit despite being warned of the legal implications of refusal to
submit to an autopsy. They were made fully aware that an autopsy would be necessary for litigation
purposes. Cf. Flury, 427 F.3d at 945 (finding bad faith on the plaintiffs’ behalf for allowing the
vehicle – which was the very subject of the lawsuit – to be sold for salvage knowing full well that
defendant wished to examine the vehicle.) “Defendant could not have prevented spoliation, nor could
any such action have been expected, because defendant was never informed of the vehicle’s location
and plaintiff did not file suit until years after the vehicle’s removal.” Flury at Id. Here, Defendants
2
“The exhumation or the autopsy of a corpse, when useful to ascertain facts in litigation, should of course be performed.
Reverence for the memory of those who have departed does not require us to abdicate the high duty of doing justice to the
living . . .” Esgro v. Trezza, M.D., 492 So.2d 422, 423 (Fla. 4th DCA 1986) (internal quotations omitted).
15
could not have prevented spoliation of Michael’s body, since Plaintiffs did not file suit until one year
after the decision not to conduct an autopsy. We are not concerned here with “mere negligence” on
behalf of Judith Sclawy and Howard Adelman.3 We are concerned with an affirmative act (refusing to
allow an autopsy) which caused evidence to be lost. See Managed Care Solutions, at 1332 and Doe
2011 WL 2790201 at *4.
The decision was made despite the fact that Howard Adelman was
concerned about the adult leaders and the hike itself soon after hearing of the incident.
He
contemplated suing the Defendants almost immediately. His concerns as expressed to Ranger Clark
(on or about May 11, 2009) manifested into claims of liability through this lawsuit. The affirmative act
of preventing an autopsy, knowing that litigation would be forthcoming, constitutes spoliation.
CONCLUSION
Judith Sclawy and Howard Adelman made faith based choices after being informed that such
choices would impact the ability to conclusively determined the cause of their son’s sudden death.
Such choices have ramifications when suit is later brought and cause of death is a central issue. The
decision to block an autopsy was made with full knowledge of its implications on foreseeable
litigation. It was made with full knowledge of the duty to preserve his body for an autopsy based on
the advice of two doctors and one law enforcement officer. While Plaintiffs’ religious reasons will not
be questioned here, that cannot be used as a shield in terms of spoliation of evidence.
The factual circumstance here (spoliation for prevention of an autopsy) presents a case of first
impression in the 11th Circuit. Federal Courts can look to Florida law for guidance. One Florida Court
– Hammer v. Rosenthal Jewelers Supply Corp, - addressed this precise issue and held that sanctions
are appropriate if one refuses to allow an autopsy when cause of death is at issue. The loss of evidence
here was a result of an affirmative act, which constitutes bad faith and warrants a strict sanction.
WHEREFORE, DEFENDANTS, request that this Court dismiss Plaintiffs’ lawsuit with prejudice
as a sanction for spoliation of evidence. In the alternative, Defendants respectfully request that this
Honorable Court strike all Plaintiffs’ expert witnesses who would be called to testify as to cause of
death. In the alternative, Defendants respectfully request that this Honorable Court invoke an adverse
inference (i.e. that Michael’s death was caused by a cardiac event or a central nervous system failure,
wholly unrelated to heat stroke) and enter such other relief as this Court deems necessary and just.
3
“Mere negligence” in losing or destroying evidence is not sufficient for a finding of bad faith spoliation of evidence. See
Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997).
16
By:____s/Kevin D. Franz_____
William. S. Reese Esq.
Florida Bar No. 187183
wreese@lanereese.com
Kevin D. Franz, Esq.
Florida Bar No. 015243
kfranz@lanereese.com
LANE, REESE, SUMMERS, ENNIS &
PERDOMO, P.A.
2600 Douglas Road
Douglas Centre, Suite 304
Coral Gables, FL 33134
Phone: (305) 444-4418;
Fax: (305) 444-5504
Attorneys for Defendants, Boy Scouts of
America and The South Florida Council, Inc.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true copy of the foregoing was sent October 7, 2011 to: Robert
D. Peltz, Esq, Ira H. Leesfield, Esq., LEESFIELD & PARTNERS, P.A., 2350 South Dixie Highway,
Miami, FL, 33133; Eric Kleinman, Esq., Kleinman & Arrizabalaga, P.A., 150 SE 2nd Avenue, Suite
1105, Miami, FL 33131; Greg Gaebe, Esq., Devang Desai, Esq., Gaebe, Mullen Antonelli, Esco &
DiMatteo, 420 S. Dixie Highway, Third Floor, Coral Gables, FL, 33146; Ubaldo J. Perez, Jr., Esq.,
LAW OFFICES OF UBALDO J. PEREZ, JR., P.A., 8181 NW 154th Street, Suite 210, Miami Lakes,
FL 33016.
By:____s/Kevin D. Franz__________
William. S. Reese Esq.
Florida Bar No. 187183
wreese@lanereese.com
Kevin D. Franz, Esq.
Florida Bar No. 015243
kfranz@lanereese.com
LANE, REESE, SUMMERS, ENNIS &
PERDOMO, P.A.
2600 Douglas Road
Douglas Centre, Suite 304
Coral Gables, FL 33134
Phone: (305) 444-4418
Fax:
(305) 444-5504
17
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