Why Trust This Analysis
This article is part of our ongoing spoliation coverage, with 2 published articles analyzing spoliation issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
When expert witnesses fail to comply with court subpoenas, it can significantly impact a case’s outcome. This issue becomes particularly complex in personal injury litigation where Independent Medical Examination (IME) doctors are called to testify. These medical professionals occupy a unique position—they’re not treating physicians, yet their examinations and reports can be pivotal in determining case outcomes.
The question of record retention becomes especially thorny for IME doctors. While treating physicians have clear obligations to maintain patient records, IME doctors exist in a gray area where their duties regarding documentation preservation aren’t as clearly defined. This ambiguity can lead to disputes over whether missing or destroyed notes warrant sanctions or adverse inferences.
Understanding how courts handle these situations is crucial for both plaintiffs and defendants in personal injury cases, as the availability of expert documentation can make or break cross-examination strategies.
Jason Tenenbaum’s Analysis:
Herman v Moore, 2015 NY Slip Op 09352 (1st Dept. 2015)
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“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.
Key Takeaway
The Herman v Moore case highlights the fundamental fairness issues that arise when expert witnesses fail to produce subpoenaed materials. Courts recognize that missing documentation hampers effective cross-examination, potentially warranting adverse inference charges. The unique position of IME doctors raises important questions about their record retention obligations and whether unintentional spoliation leads to adverse inference charge standards apply to their documentation practices.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a spoliation matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
