By David E. Frank
Massachusetts Lawyers Weekly
Copyright 2008 Massachusetts Lawyers Weekly
WORCESTER, Mass. — An ambulance company’s intentional destruction of evidence in the wrongful-death case of a young child ultimately prompted the defense to increase its settlement offer by nearly $1 million, according to a lawyer representing the plaintiff family.
The parents of the 3-year-old boy, who died after choking on a piece of candy, had alleged that a paramedic negligently inserted a tube into the child’s esophagus instead of his trachea.
When the family’s lawyer, Ralph F. Sbrogna of Worcester’s Fletcher, Tilton & Whipple, learned during pre-trial discovery that crucial data from a cardiac monitor strip was missing, he sought to have a judgment entered against the ambulance company on grounds that it had intentionally spoliated the evidence.
“The judge found that there was an intentional destruction of these records, which went to the very heart of what this case was about,” said Sbrogna, who brought the suit with Abigail R. Williams of Worcester. “The monitor strip was the only irrefutable evidence we had; without it we had no way of proving what this kid’s heart activity was at the time they inserted the tube. "
Sbrogna said the findings by Superior Court Judge Peter W. Agnes Jr. at the conclusion of an evidentiary hearing in September were so egregious that they called for the most extreme sanction available.
“We believed the [company’s] conduct merited a more severe punishment than what the judge ultimately decided to do here,” he said. “What was so troubling was that the information intentionally destroyed would have answered the seminal question in the case, which is what this kid’s condition was when EMTs began treating him. "
‘Smacks of a cover up’
Rather than entering a default judgment against the ambulance company, Agnes ruled that the family was entitled to a powerful spoliation jury instruction.
The judge made his decision after finding that the highly probative cardiac monitor strips were unavailable as a result of the ambulance company’s bad faith.
"[F]airness requires that this court impose a sanction,” wrote Agnes. "[I]n view of the fact that the evidence that is available to the parties for use at trial as to whether there was electrical activity in the heart of [the child] is in conflict and that the cardiac strip would have been the only scientific evidence on the point, the sanction of a[n] instruction that the jury should draw an adverse inference against [the] defendant is warranted. "
Although Sbrogna declined to identify the parties or opposing counsel, he acknowledged that, as a direct result of Agnes’ ruling, the defense modified its position on settlement and agreed to resolve the matter in April for $1.3 million.
“We had a mediation about a year-and-a-half earlier, and their offer was $375,000. But due to the spoliation ruling, they increased their amount by almost a million dollars,” he said. “I think we all recognized that, in the eyes of a potential jury, what happened here just smacks of a cover-up. My sense is that the insurers and the defendant were definitely afraid about what might happen if jurors got an instruction that they should infer that the evidence was intentionally destroyed. "
Tragic trip
On July 27, 2000, the 3-year-old child was shopping with his mother and two siblings in a Lunenberg Wal-Mart when he began to choke on a piece of candy.
Shortly after a paramedic arrived, the child was connected to a cardiac monitor device, which displays information about electrical activity in the heart.
Although there was conflicting testimony about whether the child was conscious and breathing at the Wal-Mart, it was undisputed that the paramedic - believing he had a blocked artery - inserted an endotrachial tube.
The location of that tube became one of the central issues in the case. While the paramedic testified that he properly inserted the tube into the trachea, the family alleged it was negligently placed in the child’s esophagus.
On the way to the hospital, a firefighter with CPR training questioned whether the paramedic had correctly inserted the tube. Although the paramedic insisted he had acted properly, an emergency room doctor later concluded the tube was not in place and the child was in cardiac arrest.
After he was initially revived, the child, who had suffered irreversible brain damage, died the next day.
In 2001, the family filed suit against the ambulance company in Worcester Superior Court. During discovery, the plaintiff sought access to various company records.
Among the requests, the family asked for the records prepared in connection with the cardiac monitor, which are recorded on paper strips that are customarily attached to other documents produced by the ambulance company.
In addition to keeping patients’ records in a locked area of its office, the ambulance company’s practice was to leave copies of those materials with the involved hospital and the Central Massachusetts EmergencyMedical Services Corp.
But, after taking depositions, filing requests for production of documents and physically inspecting the record rooms of the various locations where the documents were required to be kept, Sbrogna learned the strips were missing.
During an evidentiary hearing at which the employee who supervised the ambulance company’s records testified, Agnes concluded that the strips could not be found in any of the places where they ordinarily were stored.
The judge noted that when personnel from the state office of Emergency Medical Services visited the company several months after the incident, they, too, could not locate the strips.
“I find that the [hospital’s] copy of the cardiac monitor strip was removed from the hospital by or at the direction of personnel employed by the [ambulance company] and either destroyed or secreted, and that the other copy or copies were also destroyed or secreted by personnel employed by the defendant,” Agnes wrote.
As a result of the misconduct, he ruled that jurors would be instructed that because a violation of the duty to preserve medical records had occurred, they were entitled to infer that the ambulance company was negligent.
Guilty finger-pointing
Harvey A. Schwartz of Rodgers, Powers & Schwartz in Boston, who was on the losing end of a similar spoliation question in 2006, said he was not surprised to learn that Agnes’ decision played such a key role in the settlement talks.
“I’d be stunned if it didn’t,” he said. “Most trial lawyers who have dealt with this issue would say that it would be a major roll of the dice for an attorney to let a case go to a jury where the judge is going instruct them that their client broke the rules. "
Schwartz said that a spoliation instruction can be minimized in a trial where the missing evidence does not pertain to an issue central to the dispute. But, he said, lawyers face an almost insurmountable obstacle when the missing items are clearly probative.
“What’s so damaging about the jury instruction is that the finger pointing guiltily at the defendant is the judge’s finger,” he said. “That carries a lot more weight than simply having the plaintiff’s attorney call the defendant evil. Especially if it’s a case that has some open-ended damages - emotional distress, lost value of life or even punitive damages - it gives the jury an opportunity to punish the defendant for being dastardly. "
Bostonemployment defense lawyer John F. Welsh III of Bello, Black & Welsh, who argued the spoliation case against Schwartz, said that over the past few years he has seen an increased litigation focus on evidence preservation.
“From the defense perspective, a jury instruction suggesting there was intentional spoliation creates an uphill battle, and in a close case that can be very difficult to overcome” he said. “The judge is basically telling the jury that your client had a guilty conscience and acted upon it. "
Although Agnes opted to sanction the ambulance company with a jury instruction, Welsh said judges in Massachusetts have commonly agreed to take the additional step of entering a judgment against a party found to have intentionally destroyed evidence.
“Judges in other parts of the country will typically not enter a finding or dismiss a case even if there has been a finding of intentional spoliation,” said Welsh. “But what we’ve seen in Massachusetts is that courts are typically stricter on spoliation than most other jurisdictions, especially if the moving party can show actual prejudice. “