Failure of an expert to comply with the subpoena
Herman v Moore, 2015 NY Slip Op 09352 (1st Dept. 2015)
“Finally, while Dr. Elkin did not, as plaintiff suggests, testify that she “destroyed” her notes, she did concede that she did not comply with the subpoena, which required her to bring with her to court the notes that she used in generating her report on behalf of defendants. The failure to produce those notes affected plaintiff’s ability to cross-examine defendants’ expert and was fundamentally unfair to plaintiff. At the least, it would have been appropriate for the court to issue an adverse inference charge”
So assuming the doctor testified that the notes were destroyed prior to receipt of the subpoena or receiving a spoliation notice, would this form the basis of an adverse witness charge? A medical professional has an obligation to save records for 7 years. Does that apply to an IME doctor? They are not a treating physician; yet, a medical malpractice action can form due to inappropriate behavior and professional negligence at the IME.
Unintentional spoliation leads to adverse inference charge
Seda v Epstein, 2010 NY Slip Op 02850 (1st Dept. 2010)
“There is no evidence that defendants’ removal of the debris was willful; indeed, the preliminary conference order merely stated that defendants were to make the premises available for inspection, and plaintiff did not [*2]schedule an inspection for more than two years (see e.g. Jimenez v Weiner, 8 AD3d 133 ). However, in view of defendants’ failure to notify plaintiff’s counsel of the intended removal, the court properly ordered the lesser sanction of an adverse inference charge (see e.g. Balaskonis v HRH Constr. Corp., 1 AD3d 120, 121 ).”
I am not sure when in no-fault practice this particular issue would arise. It is something to keep in mind if you are fighting a contested issue where substantive discovery has been ordered and the items you seek to discover suddenly “vanish”.