Is Having Surgery Spoliation?

If a personal injury plaintiff obtains a surgery, without first giving the defense the opportunity for a Rule 35 examination, has the plaintiff spoliated evidence? I previously discussed a New York case discussing this topic that generated a great deal of discussion, but now I actually have a local order on this topic.

Lemus v. Olaveson, 2:14-cv-01381, 2015 U.S. Dist. LEXIS 27227 (D. Nev. Mar. 5, 2015) concerned an unexciting rear-end collision case. It became interesting when the defense claimed plaintiff had produced medical records only through March, 2014 that indicated she had not received a surgical recommendation. Plaintiff later had a spinal column stimulator implanted to address pain symptoms. “Defendants claim this surgery caused Plaintiff’s back to change materially and, therefore, constitutes an act of willful spoliation, as Defendants would have conducted an IME had they known that the condition of Plaintiff’s back would be changed.” This led to an interesting ruling.

Here, the Court finds that Defendants have not carried their burden of proving that spoliation occurred. Their expert witness, Dr. Lipshutz, testified regarding possibilities that could occur with the implantation of a spinal cord stimulator, but was unable to testify to any specifics regarding the condition of Plaintiff’s spine. While the Court credits his testimony, Dr. Lipshutz admittedly had neither treated Plaintiff nor seen any of Plaintiff’s medical records. Dr. Cash, who implanted the stimulator in Plaintiff and has treated and examined Plaintiff, testified that the biomechanics of Plaintiff’s spine have not been altered as a result of the implantation of the stimulator. Additionally, Dr. Lipshutz has never conducted an IME. Dr. Cash, who has conducted hundreds of IMEs, testified that an IME of Plaintiff would not be impacted by the stimulator, as long as Plaintiff turns the stimulator off at least 2-3 days prior to the IME.

The Court finds, based on the testimony, evidence and arguments before it, that Defendants have not proven that Plaintiff’s spine has been altered or destroyed, or that Plaintiff has failed to preserve material evidence.

It seems the key to the ruling was that the biomechanics of the spine were unchanged. A spinal column stimulator merely masks the pain, it does not address the root causes like other treatments. If the stimulator is turned off, the patient reverts back to their initial status. A Rule 35 examination at that point could observe the same conditions that existed before the stimulator was implanted. This is compared to a reconstructive surgery that does alter the biomechanics of the spine. My reading of this order is that if the biomechanics had been changed by a fusion, discekotomy, laminectomy or other procedure, the ruling may have been different.