DEPUY, INC. AND ST. PAUL FIRE & MARINE INSURANCE COMPANY, APPELLANTS,
v.
RUBY V. ECKES AND JOHN ECKES, HER HUSBAND, APPELLEES
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DePuy, Inc. and its insurer appealed an order imposing sanctions (default on liability) for losing a hip prosthesis during expert examination. The Third District Court of Appeal affirmed the striking of defendants' answer but reversed the striking of affirmative defenses, finding the sanction appropriate but only to the extent of precluding liability defenses, not affirmative ones.
The trial court properly struck the defendants' answer and entered default on liability as a sanction for losing the critical evidence, as DePuy and St. Paul were accountable for the loss regardless of whether it was intentional or accidental. However, the striking of affirmative defenses was improper because the loss of the prosthesis would not prejudice the plaintiffs' ability to respond to such defenses.
[1] A trial court may impose sanctions for failure to comply with discovery orders, but sanctions should be commensurate with the offense and the ultimate sanction should be…
[2] The loss of critical physical evidence, whether intentional or accidental, can warrant severe sanctions if the evidence is unavailable for the opposing party's use and th…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Whether the prosthesis was destroyed in bad faith or accidentally is irrelevant in the present case. The evidence is unavailable for the plaintiffs' use and they have demonstrated an inability to proceed without it.”
Establishes that intent is irrelevant to imposing sanctions for loss of evidence; what matters is the unavailability and prejudice to the non-losing party.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMrs. Eckes received a hip prosthesis implant in 1971 and allegedly sustained an injury in 1973 from the device's breakage. The Eckes obtained the brok…
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NESBITT, Judge.
The appellants seek review of an order striking their defenses and entering a default as to liability. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).
In 1971, Mrs. Eckes underwent an operation to have a hip prosthesis implanted. In 1973, she allegedly sustained an injury caused by the breakage of the surgical device. The Eckes sent the broken pieces to an expert for testing; however, for some reason, one test, an electron microscopic examination, was not done. Subsequently, the Eckes filed suit against several parties, including the appellants, DePuy, Inc., who distributed the prosthesis, and their insurer, St. Paul Fire and Marine Insurance Co. The complaint was premised upon the theories of negligence, strict liability, and breach of implied warranty. The appellants answered the complaint admitting having sold the device, denying all other allegations, and raising several affirmative defenses.
Upon an agreed order not to destroy the fracture site, the plaintiffs turned the prosthesis over to the appellants. After extensive testing by appellants’ expert, including an electron microscopic examination (the test not performed by the Eckes’ expert), the pieces were mailed back to appellants’ counsel, but the package containing the fracture site was missing. The plaintiffs filed a motion for sanctions supported by an affidavit of another of plaintiffs’ experts. At an evidentiary hearing, the expert testified that he could not render an opinion without actual examination of the fracture situs. The trial court concluded that the plaintiffs would be unable to go forward in establishing liability without the critical piece of physical evidence. It therefore entered a default in favor of the plaintiffs on liability.
Florida Rule of Civil Procedure 1.380(b)(2)(C) authorizes the imposition of sanctions for failure to comply with discovery orders. The decisions under this rule clearly establish that the sanctions should be commensurate with the offense and the ultimate sanction should be visited upon a party only under exceptional circumstances. Santuoso v. McGrath & Associates, Inc., 385 So. 2d 112 (Fla. 3d DCA 1980); Travelers Insurance Co. v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978); Herold v. Computer Components Inter-National, Inc., 252 So. 2d 576 (Fla. 4th DCA 1971).
The appellants contend that the sanction was unwarranted because: (a) the loss of the prosthesis was not intentional; and (b) the plaintiffs had the opportunity to perform any necessary testing before send ing the evidence to the appellants’ expert. We disagree.
Whether the prosthesis was destroyed in bad faith or accidentally is irrelevant in the present case. The evidence is unavailable for the plaintiffs’ use and they have demonstrated an inability to proceed without it. The second argument of the appellant is equally untenable. While it is true that the plaintiffs had an opportunity to test the prosthesis prior to giving it to the appellants, the Eckes’ failure to run a test does not relieve appellants of responsibility for the loss. When they procured the evidence for their inspection, the appellants did so subject to the plaintiffs’ right to the return of the evidence. Having lost the prosthesis, DePuy and St. Paul Fire and Marine Insurance Company are now accountable for the ramifications of their act.
Because of the peculiar factual pattern, we find that the trial court was correct in striking the appellants’ answer except insofar as the order sought to strike the affirmative defenses, we reverse. Upon the record before us, we fail to see how the loss of the prosthesis would prejudice the plaintiffs’ ability to respond to the appellants’ affirmative defenses.
Affirmed in part and reversed in part and remanded.
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Bird v. Hardrives OF Delray, Inc., 644 So. 2d 89 (Fla. 4th DCA 1994)…ed to an opportunity to show that the action can proceed with a less extreme remedy and, if so, to demonstrate that the loss was not in bad faith. See Kuechenberg v. Creative Interiors, Inc., 424 So. 2d 145 (Fla. 4th DCA 1982); DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983). See also Binger v. King Pest Control, 401 So. 2d 1310 (Fla.1981). Additionally, there is patently insufficient factual support for the trial court’s oral dismissal of Mrs. Bird’s complaint based on perjury or discovery violation…
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Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629 (Fla. 3d DCA 1995)…rastic sanctions, including default, are appropriate when a defendant alters or destroys physical evidence, and when the plaintiff has demonstrated an inability to proceed without such evidence. See Rockwell, 561 So. 2d at 677; DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983). As this is a case of spoliation of evidence rather than dilatory discovery production, we find those cases relied on by appellant unpersuasive. A [*631] determination of willful destruction was not imperative where the testimony…
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Gregoria Valcin and Gerard Valcin v. Pub. Health Tr. OF Dade Cnty., 473 So. 2d 1297 (Fla. 3d DCA 1984)…43 So. 2d 944 (Fla.1983) (within the trial court’s discretion to enter default against defendant for willful noncompliance with discovery order); Agencias Maritimas Nicaraguenses v. Usatorres, 435 So. 2d 247 (Fla. 3d DCA 1983); DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983). C. There is little question that Val-cin’s ability to prove her negligence claim against the hospital has been substantially prejudiced by the absence of critical hospital records. Whether the ultimate sanction of entering a ju…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Herold v. Computer Components Int'l, Inc., 252 So. 2d 576 (Fla. 4th DCA 1971)
- Travelers Ins. Co. & Peter Vassey v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978)
- Santuoso v. McGRATH & Assocs., Inc., 385 So. 2d 112 (Fla. 3d DCA 1980)