Adelman et al v. Boy Scouts of America et al

Filing 313

RESPONSE to Motion re 307 MOTION for Leave to File Defendants' Motion to Dismiss Based on Spoliation of Evidence filed by Howard Adelman, Judith Sclawy-Adelman. Replies due by 10/24/2011. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8(a), # 9 Exhibit 8(b), # 10 Exhibit 9, # 11 Exhibit 10)(Peltz, Robert)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
HOWARD ADELMAN et al.,
Plaintiffs,
CASE NO. 10-CV-22236-ASG/GOODMAN
v.
BOY SCOUTS OF AMERICA et al.
Defendants.
/
PLAINTIFFS’ RESPONSE TO DEFENDANT’S
MOTION TO DISMISS BASED ON SPOLIATION OF EVIDENCE
COME NOW, the Plaintiffs and file their response to BSA’s Motion to Dismiss Based on
Spoliation of Evidence and would show the Court as follows:
Synopsis
It is not a mere coincidence that the BSA has chosen to file its motion less than a week prior
to the mediation scheduled in this case. The fact that the motion is a mere mediation tactic is
obvious not only from the timing of the filing1, but from the absolute and utter lack of merit
contained in the motion itself.
The frivolous and desperate nature of the Defendant’s motion is perhaps best demonstrated
by its own words. As set forth in paragraphs 4 and 5 of the motion itself:
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.
. . . with this knowledge, the decision to preclude an autopsy is made in bad
faith and dismissal is appropriate.
D.E. 307-1, p.3 (emphasis added). The Defendant does not challenge the sincerity of the Plaintiff’s
beliefs or actions. Instead, the central basis of the BSA’s motion is the truly incredible contention
that the Adelman’s decision to “abide by their religious beliefs” in objecting to an autopsy on their
son constituted “bad faith.”
Not only is the Boy Scouts’ attack on the Adelman’s choice to abide by their religious beliefs

1

Under the Court’s Pre-Trial Scheduling Order, dispositive motions are not due to be filed until December

19, 2011.

1

contrary to everything which the organization claims to stand for,2 but their further decision to
compare the Adelman’s choice to a case “finding bad faith on the Plaintiff’s behalf for allowing the
vehicle - which was the very subject of the lawsuit - to be sold for salvage” is truly incredulous to
say the least. D.E. 307-1, p. 15.
The Defendant’s motion is patently frivolous from a legal standpoint as well, since it fails
to establish any of the elements needed to give rise to a spoliation defense. As discussed in more
detail subsequently, the elements of a spoliation defense in federal proceedings in the Eleventh
Circuit require the moving party to establish: (1) there was a legal duty to preserve the evidence, (2)
the evidence was crucial to the movant being able to prove a prima facie case or defense and (3) the
party accused of spoliation acted in bad faith. See e.g. Green Leaf Nursery v. E.I. Dupont De
Nemours & Co., 341 F.3d 1292 (11th Cir. 2003). None of the required legal elements exist here.
Facts
I. Testimony of Michael’s Parents
As expressly conceded by the BSA, the Plaintiffs’ request to the Medical Examiner to not
perform an autopsy on their son was based purely on religious reasons, since autopsies, which are
viewed as a desecration of the body, are generally contrary to Jewish law.3 The BSA does not
challenge the sincerity of Michael’s parents religious beliefs, but instead argues that the fact that they
“chose to abide by their religious beliefs and requested that the Medical Examiner forego the
autopsy,” constitutes “bad faith.” D.E. 307-1, p.3.
Among the many issues which Howard Adelman and Judith Sclawy were interrogated upon
by the Defendants in their extensive depositions4 regarding the loss of their only son was their

2

Adherence to one’s religious beliefs are so important to the BSA that this principle is featured in both the
Scout Oath and Scout Law. See Excerpts from the BSA Handbook, attached as Exhibit “1.” In fact, religion is so
important to the BSA that atheists are excluded both as scouts and leaders. Deposition of Frank Reigelman, p. 48-50
attached as Exhibit “2.”
3

See D.E. 284, n.1. Also see United Synagogue of Conservative Judiasm Guide to Jewish Funeral
Practice, §4.1 Autopsies, http://www.uscj.org/JewishLivingand
Learning\Lifecycle/JewishFuneralPractice/GuidetoJewishFuneralPractice.aspx.
4

Howard Adelman’s deposition lasted for over 8 hours of actual testimony over two days and took up 382
pages of transcript. Judith Sclawy’s deposition lasted for over 7 hours of actual testimony and was 302 pages long.

2

decision to request that the Medical Examiner respect their religious beliefs and forego an autopsy.
During the interrogation challenging her decision not to agree to an autopsy, Judith Sclawy testified:
Q:
A:
Q:
A:
A:

[Mr. Hasty] I think, I know the answer to the question, but
why is it that you refuse to have an autopsy performed?
It’s for religious reasons.
Ok.
One doesn’t do it in my religion as a matter of respect.
...
. . . [and] “I just couldn’t let [Michael] be hurt anymore.”

Deposition of Judith Sclawy at pages 145-7, Exhibit “3.” In response to a similar inquiry, Howard
Adelman also confirmed that the decision was based upon the family’s Jewish beliefs. Deposition
of Howard Adelman, page 43, Exhibit “4.”
2. Testimony of Dr. Manfred Borges (Assistant Medical Examiner)
As acknowledged by the deposition testimony of M.E. Dr. Manfred Borges, the objection to
an autopsy under Jewish law has nothing whatsoever to do with whether a Rabbi is able to be present
during such a procedure, but instead is based upon the procedure’s necessary desecration of the body.
See Dr. Borges deposition, pages 107-8, Exhibit “5.” Also see D.E. 284, n.1. Dr. Borges further
described the degree of “desecration” that would occur during an autopsy:
Q:
A:

. . .if someone is going to do an autopsy, as you were describing the
process, would you have removed Michael’s heart?
Yes.

Q:
A:

Would you have removed Michael’s brain from his body?
Yes.

Q:
A:

Would you have taken out all of his organs?
Yes.

Q:
A:

What else would you have done in an autopsy?
Well, in an autopsy I would have taken out all of the organs. This is
how we do an autopsy. I would have examined the organs. I would
have dissected the organs thoroughly, the brain would have to be
examined . . .

Deposition of Dr. Borges, pages 105-6, Exhibit “5.”
Contrary to the Boy Scouts suggestion, the ultimate decision of whether or not to perform
an autopsy belongs to the Medical Examiner under the law, not Michael’s parents. Florida Statutes
§406.11. Therefore, the Medical Examiner has the right to perform an autopsy if he believes that

3

it is necessary in order for him to determine a cause of death.
Here, however, Dr. Borges testified that the lack of an autopsy did not prevent him from
performing his official job duties as a Medical Examiner in reaching valid conclusions concerning
Michael’s cause of death and issuing the state mandated death certificate:
Q:
A:
Q:
A:
Q:

Now, with regard to the death certificate that has been marked as
“Exhibit 1,” is this an official state document?
Yes, it is an official document.
And as part of your job as Medical Examiner, does that involve doing the
studies or testing or examination that is necessary to be able to fill out the
official state of Florida death certificate?
Yes.

A:

Is it important to you that, before you execute a death certificate, that you
have sufficient information to allow you to be able to reach the conclusions
that you reached -Yes.

Q:
A:

-- within medical probability?
Yes.

Deposition of Dr. Borges, pages 64-5, Exhibit “5.”
Based upon his examination of Michael and his review of Michael’s medical records, the
Collier County Sheriff’s investigation, the National Park Service Report, and the other materials
which were compiled as part of his official investigation, Dr. Borges testified that he was able to
determine that Michael’s death was a result of heat stroke within 75% certainty, well in excess of
the reasonable medical probability standard required for admissibility:
Q:
A:
Q:
A:

Q:
A:

Was your opinion that Michael’s death was the probable cause of heat
stroke rendered within a reasonable medical probability?
Yes, it was.
And if you had to quantify how certain you were on a scale of 1 to
100, how would you be able to?
It would be more certain that not. It would be this side of 75 percent,
if I had to. . . . without an autopsy, I wouldn’t render my opinion to
100 degree certainty . . .
So is it your opinion that Michael had died of heat stroke within 75
percent probability?
Something in that range, yes.

Deposition of Dr. Borges, pages 49-50, Exhibit “5.”
As further reflected by Dr. Borges’ testimony, the only individuals who have been

4

“prejudiced” by the decision not to perform an autopsy in the context of this litigation have been the
Plaintiffs. The Defendants conveniently skipped over the portions of Dr. Borges’ testimony when
he was asked:
Q:
A:

In your conversations with Michael’s parents, you indicated that it
might be more difficult for them if there was going to be litigation
without an autopsy?
Absolutely, that was repeatedly stressed to them.

Q:
A:

And the response was that wasn’t important to them.
Absolutely.

Deposition of Dr. Borges, page 84 (emphasis added), Exhibit “5.”
3. Testimony of Ranger Ed Clark
Ranger Clark’s discussions with Howard Adelman have been taken out of context in an effort
to imply that he was considering litigation shortly after his son died. Although the timing of this
decision is irrelevant for purposes of determining the validity of the BSA’s motion, the implication
is completely inaccurate and unsupported by any actual evidence or testimony in this case.5
Both Howard and Judith have consistently testified that they did not even contemplate filing
suit against the BSA until meeting with Park Rangers Shreffler and Clark at their home on August
13, 2009, more than 3 months after Michael’s death, to discuss the results of their investigation.
Although they did not provide a copy of their report, the Rangers showed them various statements,
photographs and other materials which had been compiled during their investigation.
It was during this meeting that Howard and Judith learned for the first time that the
temperatures had reached 100 degrees during the hike and that Michael had shown progressively
worsening signs and symptoms of heat exhaustion leading to heat stroke as the hike went on.
Michael’s parents also learned for the first time that Crompton and Schmidt had waited over 1 ½
hours before calling for assistance after their son’s condition had deteriorated to the point where they
had to stop the hike.
Although the Rangers refrained from offering any opinions, both Howard and Judith testified
that after learning these facts of the hike, they came to understand for the first time that Michael’s

5

Although the BSA states “[Howard] contemplated suing the Defendants almost immediately,” it cites no
evidentiary reference for this statement. D.E. 307-1, p.16. The reason is that none exists, because it is untrue.

5

death was preventable. Accordingly, it was as a result of this meeting that they decided to pursue
this litigation. See deposition of Howard Adelman, pages 20, 52-5, 58-60, pages 129-138 and
deposition of Judith Sclawy, pages 129-134, 138. It was not until after this meeting that they first
sought legal counsel. See deposition of Judith Sclawy, page 131.
On his deposition, Ranger Clark testified that this meeting with the Adelmans had been
delayed because the Rangers first met with the U.S. Attorney out of concern that the Scout leaders
conduct had violated criminal statutes:
Q:
A:
Q:
A:

Q:

Was the purpose of this meeting to allow the Assistant U.S. Attorney’s office
in Fort Myers to determine whether there had been any criminal conduct in
connection with the death of Michael Ademan?
That’s correct.
...
When is it that the Park Service conducts meetings with the U.S. Attorneys
Office to determine whether there was potential criminal conduct involved
in an injury or death that occurs at the Big Cypress Preserve?
When the investigating Ranger believes that there - some of the elements of
criminality are present.
...

A:

What was the reason that Rangers from the Big Cypress Preserve met
with the Assistant U.S. Attorney in Fort Myers concerning their
investigation into the death of Michael Adelman.
We had a concern, particularly about the length of time that took
place between when Michael Adelman became incoherent and when
911 was called.

Q:
A:

And what was that concern?
It was a very long period of time, which impacted our ability to
respond and provide aid.

Deposition of Ranger Clark, pages 69-71 and 73, attached as Exhibit “6”
Although the evidence is uncontroverted in this case that it was only after meeting with the
Rangers and learning about the results of their investigation that the Plaintiffs decided to retain an
attorney and bring this litigation, the BSA has attempted to disingenuously imply otherwise based
upon the fact that Howard Adelman had spoke to Ranger Clark on May 11 and told him that “he had
concerns about the way the hike was conducted.” See D.E. 307-1, page 10. Omitted by the BSA
in their motion was Ranger Clark’s testimony that the Rangers wanted to speak to the Adelmans in
order to obtain information for their investigation and accordingly, Clark did not know whether
Howard had initiated the call to him or was simply returning a call that had been left by one of the
6

Rangers. Either way he indicated that the Rangers would have spoken to Howard as part of the
Ranger’s investigation.6 See deposition of Ranger Clark, pages 81-2, Exhibit “6.”
Ranger Clark described Howard as being very “emotional and upset” and “sad” during this
call. The fact that Howard Adelman had “concerns” about the hike on which his only son died of
heat stroke in a conversation several days later is hardly surprising. What would be surprising would
be if any parent in the same situation didn’t have such concerns.
Regardless, Ranger Clark clearly testified that there was nothing in the nature of this call or
any other discussion which he had with Howard Adelman prior to their August 13, 2009 meeting that
led him to believe that Michael’s parents were intending on initiating litigation. Instead, he attributed
his feeling to his own experience. In fact, Ranger Clark’s testimony on this issue, including the
portion omitted by the Defendant in its motion, read as follows:
Q:
A:

When he called you on May 11, with - and told you he was critical of
the hike, was that your first indication that a - a legal claim might
result from this?
No, not really.

Q:
A:

Ok, when - when did you get that – feeling?
The night of it.

Q:
A:

The night of it; ok.
Yeah.

Q:
A:

So, immediately?
Based on my experience.

Q:
A:

Ok.
Not on anything that someone said to me.

Q:

Ok, with what he said to you, Mr. Adelman, when did you get that - that
feeling from him?
No, not until months later.

A:

6

The Defendant’s motion disingenuously seeks to convert Howard’s “emotional” and “sad” phone
conference with Ranger Clark on May 11, 2009 into an “investigation.” Ranger Clark testified that he did not
discuss the results of the NPS investigation with Howard at the time, since it was still ongoing. He characterized this
call as “primarily designed . . . for [Clark] to obtain information and then also as part of a discussion of Howard’s
grief and anguish.” Deposition of Ranger Clark, pages 81-3.
Ranger Clark testified that after he reached out to Howard at Michael’s funeral they spoke by phone on a
number of other occasions, in which Howard sought “solace, as a result of the anguish and grief which he felt.” He
further testified that Howard was “extremely distraught over this period of time” and these calls were limited to
Howard’s anguish and not the Rangers investigation into the facts surrounding Michael’s death. Deposition of
Ranger Clark, pages 78-80.

7

Q:
A:

Ok, when was that?
Well, whenever he filed the suit.
...

Q:

Ok, did he tell you that the day he decided to file suit was the day that you
and Ranger Shreffler drove out of his driveway?
I believe he said that.

A:

Deposition of Ranger Clark, pages 27-28 (emphasis added), Exhibit “6.”
4. Testimony of Detective Kevin O’Neill
Detective O’Neill testified that he had no discussion with the Plaintiffs whatsoever about the
potential for civil litigation or any intent to file a lawsuit. When questioned by defense counsel about
the handwritten note of Dr. Coburn (who has not been deposed in this case), Detective O’Neill’s
response was simply that he preferred to have an autopsy done and that the focus of his concern was
his investigation into determine whether there was a criminal case arising from Michael’s death.
Deposition of Detective O’Neill, pages 65-6, Exhibit “10."
Applicable Law
a. Bad Faith
As set forth by this Court in its recent decision in Point Blank Solutions, Inc. v. Toyobo
America, Inc., 2011 WL 1456029 (S.D. Fla. 2011), a case involving the much less significant
sanction of an adverse inference jury instruction:
In this Circuit, a court cannot give an adverse inference jury instruction - the
primary, specific relief sought by Plaintiffs - as a sanction for spoliation of
documents or other discovery information, including emails, unless there is
evidence of bad faith.
Id. at *1 (emphasis in the original). The Boy Scouts contention that the refusal of Michael’s parents
to agree to an autopsy in the days immediately after his death, long before they had any thoughts of
litigation, constitutes such bad faith is completely unprecedented, not only in this circuit, but
anywhere else as well.
In fact, in the only case that the Plaintiff has been able to find directly on point, the court in
Walsh v. Caidin, 283 Cal.Rptr. 326, 329 (Cal. App. 1991) expressly rejected this identical argument:
To allow [defendant’s] action would treat a dead body merely as another
piece of evidence, ignoring the outrage to the surviving family members, to
which our case law is sensitive.

8

The trial court also opined that recognition of [defendants] cause of action
could violate the surviving spouses freedom of religion. California law is
also sensitive to this consideration . . .
Because the surviving spouse’s decision is so intensely private and personal,
it would be difficult to prove that cremation was done for the improper
purpose of destroying evidence.
In Bashir v. Amtrak, 19 F.3d 929 (11th Cir. 1997), the Eleventh Circuit concluded that “the
unexplained absence of a speed tape,” which would have conclusively established the train’s speed
in a collision case was not sufficient to give rise to even a adverse jury inference, much less a
dismissal based upon spoliation,
In this circuit, an adverse inference is drawn from the party’s failure to
preserve evidence only when the absence of that evidence is predicated on
bad faith. [citation omitted]. “Mere negligence” in losing or destroying the
records is not enough for an adverse inference, as “it does not sustain an
inference of consciousness of a weak case.” [citation omitted]. Thus, under
the “adverse inference rule,” we will not infer that the missing speed tape
contained evidence unfavorable to appellees unless the circumstances
surrounding the tape’s absence indicate bad faith e.g., that appellees tampered
with the evidence.
119 F.3d at 931. (emphasis added). In Point Blank Solutions, Inc., this Court equated the type of bad
faith necessary to impose sanctions with “litigation misconduct” or evidence “tampering.” 2011 WL
1456029 at *8, 10. See also Walter v. Carnival Corp., 2010 WL 2927962 (S.D. Fla. 2010)(mere fact
that litigation may have been anticipated from accident did not render cruise line’s failure to save
allegedly defective chair a bad faith act giving rise to spoliation).
The BSA’s attempt to establish the existence of such bad faith by reference to the Eleventh
Circuit’s opinion in Flury v. Daimler Chrylser Corp., 427 F.3d 939 (11th Cir. 2005) is incredulous
at best. The suggestion that a parent’s decision to object to an autopsy on their deceased child for
religious reasons is the equivalent of a car owner’s decision to sell his damaged vehicle for scrap
exceeds the realm of comprehension.
As this court itself further pointed out in Point Blank Solutions, Inc., Flury was also a case
decided under Georgia law, which differs in material aspects from Florida spoliation law.7 2011 WL

7

As this court noted in Point Blank Solutions, Inc., federal law governs the imposition of spoliation
sanctions in a diversity lawsuit because they constitute an evidentiary matter. Nevertheless, the court may look to
state law for guidance to the extent that it is consistent with federal law. 2011 W L 1456029 at *8.

9

1456029 at *9 (and cases cited therein). Just as importantly, the facts in Flury are completely
opposite to those in the present case.
Flury immediately hired a lawyer, who just 13 days after the accident placed the car
manufacturer on notice of his client’s intent to pursue a crashworthiness claim. The manufacturer
thereafter promptly responded by formally requesting the opportunity to inspect the vehicle.
Plaintiff’s counsel never responded to this request. Many months later the vehicle was sold for scrap
by the Plaintiff’s insurer. None of those facts, which were all critical to the court’s holding, exist
in this case.
In Britton v. Wal-Mart Stores East L.P., 2011 WL 3236189 (N.D. Fla.) at *13 (emphasis
added), one of the cases cited by the BSA, the court concluded that in order to show the type of bad
faith necessary to give rise to a spoliation remedy, the moving party must establish that the party’s
“reasons given for not preserving the critical evidence are suspiciously irrational.” See also
Pointblank Solutions, Inc., 2011 WL 1456029 at *29 (the act “cannot be credibly explained as not
involving bad faith”). Here, even if one was to make the unconvincing argument that parents, who
have traumatically suffered the loss of their only son, were in a position to make a reasoned and
calculated decision over whether an autopsy should be performed immediately upon learning of their
son’s death, it is not possible to credibly argue that Howard and Judith’s decision to oppose an
autopsy based upon religious grounds is “suspiciously irrational.”
b. Duty to Preserve Evidence
As recognized by this Court in Point Blank Solutions, Inc., in order for spoliation to exist,
there must also be a legal duty to preserve the evidence at the time that it was destroyed. 2011 WL
1456029 at *9. In defining the elements of a spoliation claim, the Eleventh Circuit has held that
there must be “a legal or contractual duty to preserve evidence which is relevant to the potential civil
action.” Green Leaf Nursery v. E.I. Dupont DeNemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003)
aff’g 165 F.Supp.2d 1345 (S.D. Fla. 2001)(Gold). In Electric Machinery Enterprises, Inc. v. Hunt
Construction Group, Inc., 416 B.R. 801 (N.D. Fla. 2009); the court went on to elaborate:
The second pre-requisite to spoliation sanctions is that there was an
underlying duty to preserve evidence. In Florida, “[a] duty to preserve
evidence can arise by contract, by statute, or by a properly served discovery
10

request (after a lawsuit has already been filed).” Royal & Sunalliance v.
Lauderdale Marine Center, 877 So. 2d 843, 845 (Fla. 4th DCA 2004). The
majority of Florida courts have held that there is no common law duty to
preserve evidence before litigation has commenced. [citation omitted].
416 B.R. at 873 (emphasis added). Also see Gayer v. Fine Island Construction & Electric, Inc., 977
So.2d 424 (Fla. 4th DCA 2008); Silhan v. Allstate Ins. Co., 236 F.Supp.2d 1303 (N.D. Fla. 2002).
Even more strict rules have been applied by the courts to determine whether there has been
a spoliation of evidence, when a party has attempted to apply it to the treatment of the human body.
For example, in Vega v. CSCS International, NV, 795 So.2d 164 (Fla. 3d DCA 2001), another case
cited by the Defendant, the court rejected the contention that there had been spoliation of evidence
by a seaman who had chosen to undergo surgery for a purported disc injury after receiving a written
request from his employer to first allow it to have him examined for purposes of potential litigation.
Contrary to the suggestion by the Defendant that Vega standards for the proposition that “the
doctrine of spoliation arises when it has been alleged that a crucial piece of evidence is unavailable,”
the Third District in fact held:
CSCS argues that Vega’s herniated disc was “evidence” in the litigation, but
there is no precedence to support such an argument. The only case cited by
the parties to deal with this issue determined that the treatment of injuries
cannot constitute spoliation of evidence.
Even if we were to hold that Vega’s back was evidence, which we do not,
CSCS has not established all the necessary elements for spoliation of
evidence. Missing from the facts of this case is any “legal or contractual duty
to preserve evidence which is relevant to the potential civil action.”
Continental Ins. Co. v. Herman, 576 So.2d 313, 315 (Fla. 3d DCA 1990).
There is absolutely no obligation to preserve the status quo of a litigant’s
body for future examination by the opponent, except as provided in the rules
of procedure or is otherwise ordered by the court. CSCS made no attempt to
obtain a court order prior to the surgery.
Vega, 795 So.2d at 166-7.
While undersigned counsel is appreciative of the fact that Defendant’s counsel read one of
his law review articles entitled The Necessity of Redefining Spoliation of Evidence Remedies in
Florida,8 he would have preferred that it not be misquoted or mis-cited. As pointed out in this
article, the court’s ruling in Hammer v. Rosenthal Jewelers Supply Corp., 558 So.2d 460 (Fla. 4th

8

Vol. 29, Florida State University Law Review (Summer 2002), p. 1289.

11

DCA 1990) was not based upon spoliation of evidence sanctions, but instead the case was dismissed
as a sanction for failure to comply with a discovery order. Id. at 1294. In fact, the court’s opinion
does not even mention the word spoliation.
Mr. Hammer had filed a personal injury action while he was still alive, alleging that he had
contracted lung cancer due to a prolonged occupational exposure to asbestos from products
manufactured by the defendant. After the filing of his complaint, Mr. Hammer died. The defendant
immediately filed an emergency motion to enjoin burial and to compel autopsy. Following several
hearings, the court entered an order directing an autopsy. As reflected by the court’s opinion, the
trial court’s decision to dismiss the case was based upon the subsequent refusal to comply with its
discovery order. Therefore, the court’s discovery order created a legal duty on the part of the
Plaintiff to comply with its terms, absent a reversal by a higher court. The issue in this case is not
whether an autopsy might have been ordered if requested, but whether the Plaintiffs are guilty of
spoliation of evidence. Since no such order existed in the present case, there accordingly could have
been no legal duty on the part of the Plaintiffs to preserve evidence, which was violated.9
c. Inability to Make a Prima Facie Case
A third essential element for establishing spoliation as pointed out by this Court in Point
Blank Solutions, Inc. is “the requirement to demonstrate that the spoliated evidence was crucial to
the movant’s ability to prove its prima facie case or defense, it is not enough that the spoliated
evidence would have been relevant to a claim or defense.” 2011 WL 1456029 at *8 (emphasis in
the original). Accordingly, where the moving party can still prove a prima facie defense through
other evidence, spoliation sanctions are inappropriate.
The Defendant’s argument that the lack of an autopsy prevents its experts from “more
conclusively opin[ing] as to the actual cause of death,”10 [D.E. 307-1, p.2] has already been rejected
by the Eleventh Circuit as forming a sufficient basis for the entry of spoliation sanctions. In
9

Hammer certainly does not stand for the proposition claimed that “sanctions are appropriate if one
refuses to allow an autopsy when cause of death is at issue” in the absence of a court order compelling the autopsy.
D.E. 307-1, p.16.
10

The Defendant repeatedly confuses the concept of “prima facie” with “absolute certainty” and
“conclusively” in its motion. See D.E. 307-1, p.1, 2, 13 and 14.

12

Greenleaf Nursery, 341 F.3d at 1309, the Eleventh Circuit held that it is not enough to merely prove
that one is injured in some fashion, but they must prove that they are completely unable to establish
their claim or defense. Accordingly, the court went on to conclude:
Plaintiffs merely argued that “[w]ithout the withheld [,] altered, and
destroyed evidence, appellants cannot effectively rebut Dupont’s ‘better
science’ evidence.” [Appellants BR. at 36-37].
Plaintiff’s inability to rebut a defense theory is not “significant impairment”
of the Plaintiff’s ability to prove its case. Plaintiff cannot show that the
actual destruction of the test plants in Costa Rica led to their inability to
prove their lawsuit.
Id. at 1309. Also see Pointblank Solutions, Inc., 2011 WL 1456029 at *27.
Unlike virtually every case cited by the Defendant, there was in fact an examination of the
claimed evidence-Michael’s body-carried out by the Medical Examiner, a neutral government
official, whose job duties included performing such examinations and determining a cause of death.
As part of this examination, a blood sample was obtained, which was not only tested by the Medical
Examiner’s office, but a laboratory chosen by the Defendant as well. See D.E. 284.
In addition, extensive investigations into the circumstances surrounding Michael’s death were
also carried out by other neutral government agencies-the Collier County Sheriff’s Department and
the National Park Service. Not only did both government agencies render extensive reports, but they
made their investigators available for depositions in this case.11
The Defendant simply cannot establish that it is unable to prove a prima facie defense due
to the lack of an autopsy in this case.12 As noted above, the Medical Examiner has testified that
11

In addition to Medical Examiner Dr. Borges, Detective Kevin O’Neill of the Collier County Sheriff’s
Department and NPS Rangers Gary Shreffler, Ed Clark, W ynn Carney, Drew Gilmour and Garnett Tritt have been
deposed.
12

The BSA’s reliance upon the fact that Michael was the only one to die from heat stroke during a 20 mile
hike in the wilderness on a day when temperatures reached 100° is merely sophistry, not a basis for awarding
spoliation sanctions. D.E. 307-1, p.14. Moreover, as Dr. Borges pointed out:
Q:

A:

You were asked some questions by Mr. Summers about why one person involved in an incident
may die and other people may not. Have you been involved in cases, as a Medical Examiner,
where there is an auto accident, and there would be multiple people in the car and only one person
will die in the car?
Oh, absolutely or cases where a boat crashes and people in the boat, only one drowns and they are
the same exact – let’s put it this way– they are in the same boat.

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based upon the evidence available it is medically possible to determine the cause of Michael’s death
within 75 percent certainty, well above the reasonable medical probability threshold of 51 percent.
Both of the Plaintiffs’ medical experts, Dr. Francis O’Connor and Dr. Stephen Lipshultz,
have also indicated by affidavits that it is not only possible to determine Michael’s cause of death
from the available evidence within reasonable medical certainty, a higher standard, but that the
evidence overwhelmingly establishes that it was due to heat stroke. See Exhibits 7 and 8 hereto.
Dr. Lipshultz, a pediatric cardiologist, who is the Chairman of Pediatrics at the UM School of
Medicine, has indicated that even without an autopsy, there is “more than sufficient evidence
available for a properly qualified medical doctor to weight the medical possibility and to exclude
other potential causes of death, such as pre-existing cardiac abnormalities and brain lesions, within
reasonable medical probability.” Dr. O’Connor, who is a nationally recognized expert in military
and emergency medicine concurs in his affidavit.13
The Defendants have identified a total of 6 medical experts on their expert witness
disclosures.14 The fact that they have been able to obtain an affidavit from 1 of these experts
indicating that he is unable to render an opinion as to Michael’s cause of death within reasonable
medical probability, clearly does not establish either that the Defendants are unable to establish a

Q:
A:
Q:
A:
Q:
A:

Literally and figuratively.
Literally and figuratively.
...
W ould it be reasonable for people that are in relatively normal shape, who are in a 20 mile hike in
100 degree weather, to die of heat stroke or heat exhaustion?
Certainly.
...
If an individual suffers from heat exhaustion, does that if it is not treated, would that
progress to heat stroke?
Yes.

Deposition of Dr. Borges, pages 113-114, Exhibit “5.”
13

Although Dr. O’Connor signed his affidavit, he was unable to have it notarized in time for the filing of
this response. Accordingly, a notarized copy will be filed hereinafter.
14

Although there are 3 groups of Defendants represented by 3 different law firms, the defense of all the
defendants in this case is being provided for and paid by the Defendant BSA, which has also agreed to indemnify
each of the other Defendants. This is further apparent by virtue of the fact that counsel for the BSA filed this motion
on behalf of all of the Defendants. Therefore, there is clearly a unity of interest among the defendants carrying over
to their experts.

14

prima facie case or even that their other 5 medical experts have the same opinion. Nor does it
establish that other more capable experts can render opinions on cause of death as reflected by the
testimony of the Medical Examiner or the affidavits of Plaintiff’s experts. All the BSA has
accomplished is to establish that Dr. Wetli will be unable to testify as an expert in this case.15
Conclusion
Nearly 2 ½ years after Michael’s death, following over 16 months of litigation, during which
34 depositions have been taken, literally thousands and thousands of pages of documents produced
and multiple hearings conducted by this Court, BSA is now moving to dismiss this case for
spoliation of evidence 4 days prior to mediation based upon an act that occurred on the day following
Michael’s death. The timing clearly evidences the lack of good faith behind this motion and the real
reason for its filing.
Although dismissal of a lawsuit is the most severe sanction and limited to those
circumstances “where the offending party is found to have exhibited ‘flagrant bad faith,’” the
Defendant asks this Court to enter this sanction for what the BSA itself terms as “Michael’s parents
[choice] to abide by their religious beliefs.” See Telectron, Inc. v. Overhead Door Corp., 116 F.R.D.
107, 131 (S.D. Fla. 1987)(default properly entered where corporate officers willfully ordered
destruction of records for the intended purpose of destroying evidence and obstructing discovery).
Although the Defendant also requests lesser sanctions in the form of striking the Plaintiffs’
experts or the use of an adverse inference instruction, it is nevertheless clear that in this Circuit even
these sanctions are not applicable, where the elements of spoliation have not been established and
there has been a lack of showing of bad faith. See Pointblank Solutions, Inc., 2011 WL 1456029 at
*2. Moreover, even where the elements of spoliation exist, the courts have generally concluded that
the remedy must logically be responsive to the resulting prejudice.
For example, in Graff v. Baja Marine Corp., 310 Fed.Appx. 298 (11th Cir.
2009)(unpublished), the court refused to allow a party’s expert to testify concerning the results of

15

The defendants have identified another pathologist besides Dr. W etli – Dr. Baden. Since it is unlikely
that the Court will permit the defendants to call duplicative experts, Dr. W etli is most likely what is known in the
practice as a “throwaway expert.”

15

testing he performed on a product, where the testing destroyed the product and prevented the
Defendant from conducting its own tests. Despite the expert’s destruction of evidence he was not
excluded from testifying on this ground, but only precluded from presenting the results of his testing.
Here, there is clearly no basis to even consider the Defendants request to exclude the Plaintiffs’
experts from testifying. Not only has their been a lack of spoliation of evidence as discussed above,
but the Plaintiff’s experts have not destroyed any evidence or had the opportunity to perform any
testing or examination that was unavailable to the Defendant as in Graff .
The same is true with regard to the Defendant’s request for an adverse jury instruction. Not
only has the BSA failed to meet the standards required for such instruction, but such instruction is
only proper where the party’s action in destroying the evidence is done under circumstances to give
rise to the inference that the party was disposing of unfavorable evidence. See Bashir v. Amtrak, 119
F.3d 929 (11th Cir. 1997); Calixto v. Watson Bohman Acme Corp., 2009 WL 3823390 (S.D. Fla.
2009) at *15 (and cases cited therein). There is absolutely no suggestion whatsoever in this case that
the Plaintiffs opposed an autopsy for any reason other than that it was contrary to their religious
beliefs and their desire to avoid letting Michael “be hurt anymore” by the desecration of his body.
There is absolutely no evidence to suggest that the Plaintiffs had any reason to believe that an
autopsy would produce unfavorable evidence in a case, which they had no intention of even bring
at the time.16

16

The Defendant claims that Michael had high blood pressure based upon having Dr. Borges, the Medical
Examinerm read several blood pressure readings taken out of context from the records of Michael’s pediatricians.
D.E. 307-1, p. 4. This claim was refuted by the testimony of Dr. Bullard, their son’s board certified pediatrician,
who actually examined Michael while he was alive. More importantly, the evidence is undisputed that Dr. Bullard
had advised Michael’s parents that he was a completely normal and health young man and that he was fully capable
of participating in Boy Scout activities. See deposition of Dr. Bullard, pages 6, 7, 15, 26-31, 33-34, 39, 89-90,
Exhibit “9.” The Adelmans had no reason to believe anything different at the time, nor is there any reason to believe
anything different today.
Therefore to suggest with absolutely no evidence, that the Plaintiffs were seeking a “litigation advantage,”
by refusing an autopsy is completely spurious. Since the Medical Examiner did not even execute Michael’s death
certificate until May 21, 2009, the Plaintiffs did not even know what his conclusions and findings would be until well
after the decision not to do an autopsy was made and Michael buried.

16

Dated: October 13, 2011
Respectfully submitted,

/s/ Robert D. Peltz
ROBERT D. PELTZ (Fla. Bar No. 220418)
E-mail: [e-mail]
LEESFIELD & PARTNERS, P.A.
2350 S. Dixie Highway
Miami, Florida 33133
Telephone:
[phone]
Facsimile:
[phone]
Counsel for Plaintiffs
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 13, 2011, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is
being served this day on all counsel of record or pro se parties identified on the attached Service List
in the manner specified, either via transmission of Notices of Electronic Filing generated by
CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to
receive electronically Notices of Electronic Filing.

/s/ Robert D. Peltz
ROBERT D. PELTZ

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SERVICE LIST
IRA H. LEESFIELD
ROBERT D. PELTZ
E-mail: [e-mail]
[e-mail]
LEESFIELD & PARTNERS, P.A.
2350 S. Dixie Highway
Miami, Florida 33133
Telephone: [phone]
Facsimile: 305-854-8266
Attorneys for the Plaintiffs

WILLIAM S. REESE
WILLIAM SUMMERS
KEVIN D. FRANZ
Email: [e-mail]
[e-mail]
[e-mail]
LANE , REESE , SUMMERS, ENNIS &
PERDOMO , P.A.
2600 Douglas Road
Douglas Centre, Suite 304
Coral Gables, Florida 33134
Telephone: [phone]
Facsimile: 305-444-5504
Attorneys for Boys Scouts of America and
The South Florida Council, Inc.; Boy Scouts
of America

ERIC S. KLEINMAN
Email: [e-mail]
KLEINMAN & ARRIZABALAGA, P.A.
150 SE 2nd Avenue, Suite 1105
Miami, FL 33131
Telephone: [phone]
Facsimile: 305-377-8390
Attorneys for Howard K. Crompton and
Andrew L. Schmidt

GREG M. GAEBE
Email: [e-mail]
GAEBE , MULLEN , ANTONELLI & DIMATTEO
420 South Dixie Highway, 3rd Floor
Coral Gables, FL 33146
305-667-0223
305-284-9844 – Fax
Attorneys for Plantation United Methodist
Church

UBALDO J. PEREZ, JR., ESQ.
Email: [e-mail]
Law Office of Ubaldo J. Perez, Jr., P.A.
8181 NW 154th Street, Suite 210
Miami Lakes, FL 33016
Telephone: [phone]
Facsimile: [phone]
Co-Counsel for Howard K. Crompton

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