Physical Spoliation of Evidence: When It Doesn't Matter

Physical unavailability of evidence can influence litigation, but for various reasons, the courts will not always draw an adverse inference against the party that has lost or destroyed such evidence. One of these reasons is simple relevance. A case in point is Kanyi v. United States, 2001 U.S. Dist LEXIS 19814, in which the plaintiff appealed a Magistrate Judge's order denying a motion for an adverse inference charge against defendants. The court found that even though defendants had destroyed evidence, their actions were at most merely negligent, and besides, the evidence in question was immaterial to the case.

Kanyi v. United States

In Kanyi, the police caught the defendant William Kanyi (plaintiff, in the action) attempting to import bags of heroin into the United States. Kanyi, a so-called “drug mule,” was attempting on March 30, 1998, to import 51 bags of heroin he had swallowed. He had ingested the bags before boarding a flight to New York from his home country of Ghana. On his arrival at JFK International Airport, agents of the U.S. Customs Service stopped Kanyi and searched him. During the search, Kanyi admitted that he had swallowed the heroin. He was therefore transferred to the airport medical facility, where x-rays confirmed the presence of bags containing some substance in his alimentary tract.

After arriving at the hospital, Kanyi refused to consent to surgery. Meanwhile, Kanyi's urine was tested for the presence of opiates, and the test apparently came back positive. Further attempts were made to convince Kanyi to consent to surgery, but he refused. At some point, a psychiatrist was consulted, who determined that Kanyi was not competent to refuse consent. The surgery was performed, and the remaining heroin bags were removed.

The plaintiff filed suit against the United States, the hospital and the treating physicians, alleging that the surgery to remove the bags constituted an unlawful search and seizure and/or assault and battery. Kanyi contended that, despite the fact that he was naturally passing the bags of heroin and felt fine, the defendants forced him to undergo surgery to remove the remaining bags. Plaintiff also alleged that the surgeons committed medical malpractice by negligently deciding to perform the surgery. He sought $5 million in damages on each of his five claims.

The defendants, however, painted a very different picture of the events of March 30, 1998. They asserted that Kanyi was disoriented and was lapsing in and out of consciousness when he arrived at the JFK medical facility. After physicians administered a drug that counteracts the effects of heroin, Kanyi allegedly became more alert and responsive. Accordingly, the defendants determined that at least one of the bags of heroin in Kanyi's alimentary tract had ruptured, and that immediate surgery was necessary to remove the remaining bags before they also ruptured – an event that might lead to Kanyi's death. It was after considering this possibility that the decision was made to transfer Kanyi by ambulance to Mary Immaculate Hospital.

The test of Kanyi's urine performed at Mary Immaculate Hospital involved the application of the urine to a test kit, which looks like a tape cassette. The test kit screens the urine for various substances, including opiates. Once the test kit has been exposed to urine, it is considered a biohazard, and is destroyed within 24 hours of use. Before the test kit is destroyed, however, a “photocopy” of the test kit is made, and that photocopy is placed in a logbook maintained by the central laboratory processing the urinalysis. The test results are then entered into the hospital computer system by a laboratory technician, and this information is printed out and appended to the patient's hospital records. The computer is accessible to all hospital staff, but the logbook (which contains the photocopy of the test kit) is maintained only by the laboratory, and is not accessible to hospital staff. In accordance with normal hospital procedures, Kanyi's test kit was destroyed within 24 hours of the urinalysis.

Spoliation of Evidence?

Approximately 7 months after this action was commenced, the logbook was destroyed, in accordance with the hospital's document retention policy. Upon learning that the test kit and logbook were destroyed, Kanyi filed a motion with the Magistrate Judge supervising discovery in the case, seeking an adverse inference charge because of spoliation of evidence. Kanyi argued that the defendants knowingly, intentionally and willfully destroyed the urinalysis test kit, as well as the photocopy of the test kit contained in the logbook. Kanyi further argued that the defendants were aware that both the test kit and the photocopy were relevant to this litigation, and that the defendants therefore had an obligation to safeguard these items for discovery.

The Magistrate Judge ruled that there was no reason for the defendants to know that the photocopy of the test kit was relevant to the claims raised in this action at the time the logbook was destroyed. At their depositions, each doctor who treated Kanyi had testified that he relied on the test results in the computer before deciding to operate on Kanyi; none relied in any way on the test results as they existed in the test kit, or in the photocopy of the test kit contained in the logbook. (The doctors apparently obtained these results via telephone.) Thus, the Magistrate Judge ruled that the photocopy of the test kit would be relevant in this

case only if Kanyi alleged that the doctors were somehow negligent in relying on the urinalysis results in the hospital computer, instead of checking the test kit results directly. The claims asserted in this case, however, merely concerned Kanyi's lack of consent to surgery and the alleged malpractice in the doctors' deciding to perform that surgery when it was purportedly unnecessary.

On appeal, the court agreed, reasoning that because it was the reliance on the computer results that formed the basis of the defendants' decision to operate, the photocopy of the test kit was simply irrelevant to the claims raised in the complaint. Although the claim for negligence pleaded in the complaint was asserted in broad terms, Kanyi's counsel admitted that the negligence claim concerned the decision to perform surgery, and not the surgery itself. Thus, the court concluded that because no evidence suggested that the test kit photocopy contained information different from that in the hospital computer, an adverse inference charge was unwarranted.

Furthermore, the logbook appeared to have been destroyed before Kanyi served his first set of document requests on the defendants, and the Magistrate Judge found that date was the earliest possible date the defendants were on notice of the logbook's relevance. For this reason, the magistrate viewed the destruction of the logbook as, at worst, merely negligent, which was insufficient to warrant an adverse inference remedy. The appellate court agreed with the Magistrate Judge's reasoning under this theory, also.

Strategy Lessons

If there has been spoliation of relevant evidence, depending on jurisdiction, the court may provide the standard spoliation remedy: an inference that whatever was lost would have supported the proponent's view that negligence occurred. Other jurisdictions have a separate cause of action for the lost evidence. Currently, Florida and California recognize the tort of negligent spoliation of evidence. Alaska, Ohio and California recognize intentional spoliation of evidence as a separate tort.

Whenever walking out on the spoliation litigation limb, make certain that the loss of the evidence precluded some aspect of the case that, if proven, would have made a difference. One mistake many attorneys make in litigation is the failure to show prejudice by complained of conduct. What is the harm to the proponent's case? The issue in Kanyi in terms of the negligence was whether the surgery itself was valid under the circumstances. When there is a valid medical history that the patient ingested multiple bags of heroin and then the patient loses consciousness, a surgeon doesn't need the results of a urine test kit to move his or her hand toward the scalpel.

Physical unavailability of evidence can influence litigation, but for various reasons, the courts will not always draw an adverse inference against the party that has lost or destroyed such evidence. One of these reasons is simple relevance. A case in point is Kanyi v. United States, 2001 U.S. Dist LEXIS 19814, in which the plaintiff appealed a Magistrate Judge's order denying a motion for an adverse inference charge against defendants. The court found that even though defendants had destroyed evidence, their actions were at most merely negligent, and besides, the evidence in question was immaterial to the case.

Kanyi v. United States

In Kanyi, the police caught the defendant William Kanyi (plaintiff, in the action) attempting to import bags of heroin into the United States. Kanyi, a so-called “drug mule,” was attempting on March 30, 1998, to import 51 bags of heroin he had swallowed. He had ingested the bags before boarding a flight to New York from his home country of Ghana. On his arrival at JFK International Airport, agents of the U.S. Customs Service stopped Kanyi and searched him. During the search, Kanyi admitted that he had swallowed the heroin. He was therefore transferred to the airport medical facility, where x-rays confirmed the presence of bags containing some substance in his alimentary tract.

After arriving at the hospital, Kanyi refused to consent to surgery. Meanwhile, Kanyi's urine was tested for the presence of opiates, and the test apparently came back positive. Further attempts were made to convince Kanyi to consent to surgery, but he refused. At some point, a psychiatrist was consulted, who determined that Kanyi was not competent to refuse consent. The surgery was performed, and the remaining heroin bags were removed.

The plaintiff filed suit against the United States, the hospital and the treating physicians, alleging that the surgery to remove the bags constituted an unlawful search and seizure and/or assault and battery. Kanyi contended that, despite the fact that he was naturally passing the bags of heroin and felt fine, the defendants forced him to undergo surgery to remove the remaining bags. Plaintiff also alleged that the surgeons committed medical malpractice by negligently deciding to perform the surgery. He sought $5 million in damages on each of his five claims.

The defendants, however, painted a very different picture of the events of March 30, 1998. They asserted that Kanyi was disoriented and was lapsing in and out of consciousness when he arrived at the JFK medical facility. After physicians administered a drug that counteracts the effects of heroin, Kanyi allegedly became more alert and responsive. Accordingly, the defendants determined that at least one of the bags of heroin in Kanyi's alimentary tract had ruptured, and that immediate surgery was necessary to remove the remaining bags before they also ruptured – an event that might lead to Kanyi's death. It was after considering this possibility that the decision was made to transfer Kanyi by ambulance to Mary Immaculate Hospital.

The test of Kanyi's urine performed at Mary Immaculate Hospital involved the application of the urine to a test kit, which looks like a tape cassette. The test kit screens the urine for various substances, including opiates. Once the test kit has been exposed to urine, it is considered a biohazard, and is destroyed within 24 hours of use. Before the test kit is destroyed, however, a “photocopy” of the test kit is made, and that photocopy is placed in a logbook maintained by the central laboratory processing the urinalysis. The test results are then entered into the hospital computer system by a laboratory technician, and this information is printed out and appended to the patient's hospital records. The computer is accessible to all hospital staff, but the logbook (which contains the photocopy of the test kit) is maintained only by the laboratory, and is not accessible to hospital staff. In accordance with normal hospital procedures, Kanyi's test kit was destroyed within 24 hours of the urinalysis.

Spoliation of Evidence?

Approximately 7 months after this action was commenced, the logbook was destroyed, in accordance with the hospital's document retention policy. Upon learning that the test kit and logbook were destroyed, Kanyi filed a motion with the Magistrate Judge supervising discovery in the case, seeking an adverse inference charge because of spoliation of evidence. Kanyi argued that the defendants knowingly, intentionally and willfully destroyed the urinalysis test kit, as well as the photocopy of the test kit contained in the logbook. Kanyi further argued that the defendants were aware that both the test kit and the photocopy were relevant to this litigation, and that the defendants therefore had an obligation to safeguard these items for discovery.

The Magistrate Judge ruled that there was no reason for the defendants to know that the photocopy of the test kit was relevant to the claims raised in this action at the time the logbook was destroyed. At their depositions, each doctor who treated Kanyi had testified that he relied on the test results in the computer before deciding to operate on Kanyi; none relied in any way on the test results as they existed in the test kit, or in the photocopy of the test kit contained in the logbook. (The doctors apparently obtained these results via telephone.) Thus, the Magistrate Judge ruled that the photocopy of the test kit would be relevant in this

case only if Kanyi alleged that the doctors were somehow negligent in relying on the urinalysis results in the hospital computer, instead of checking the test kit results directly. The claims asserted in this case, however, merely concerned Kanyi's lack of consent to surgery and the alleged malpractice in the doctors' deciding to perform that surgery when it was purportedly unnecessary.

On appeal, the court agreed, reasoning that because it was the reliance on the computer results that formed the basis of the defendants' decision to operate, the photocopy of the test kit was simply irrelevant to the claims raised in the complaint. Although the claim for negligence pleaded in the complaint was asserted in broad terms, Kanyi's counsel admitted that the negligence claim concerned the decision to perform surgery, and not the surgery itself. Thus, the court concluded that because no evidence suggested that the test kit photocopy contained information different from that in the hospital computer, an adverse inference charge was unwarranted.

Furthermore, the logbook appeared to have been destroyed before Kanyi served his first set of document requests on the defendants, and the Magistrate Judge found that date was the earliest possible date the defendants were on notice of the logbook's relevance. For this reason, the magistrate viewed the destruction of the logbook as, at worst, merely negligent, which was insufficient to warrant an adverse inference remedy. The appellate court agreed with the Magistrate Judge's reasoning under this theory, also.

Strategy Lessons

If there has been spoliation of relevant evidence, depending on jurisdiction, the court may provide the standard spoliation remedy: an inference that whatever was lost would have supported the proponent's view that negligence occurred. Other jurisdictions have a separate cause of action for the lost evidence. Currently, Florida and California recognize the tort of negligent spoliation of evidence. Alaska, Ohio and California recognize intentional spoliation of evidence as a separate tort.

Whenever walking out on the spoliation litigation limb, make certain that the loss of the evidence precluded some aspect of the case that, if proven, would have made a difference. One mistake many attorneys make in litigation is the failure to show prejudice by complained of conduct. What is the harm to the proponent's case? The issue in Kanyi in terms of the negligence was whether the surgery itself was valid under the circumstances. When there is a valid medical history that the patient ingested multiple bags of heroin and then the patient loses consciousness, a surgeon doesn't need the results of a urine test kit to move his or her hand toward the scalpel.