South Florida Injury Lawyer Blog
In a Florida criminal case, if you intentionally destroy/tamper with evidence, it can be a third-degree felony. But what if it’s a civil case? 
Anyone who files a Palm Beach injury lawsuit will soon come to understand the pivotal role of evidence. A fact can be 100 percent true, but virtually meaningless without concrete proof. More weight will always be given to assertions supported by strong evidence, as opposed to one side’s word versus another’s.
If evidence central to a civil case is destroyed, it’s called spoliation, and it doesn’t even have to be intentional for the court to impose sanctions. As for the exact penalty, the consequences depend on:
- Who had control of the evidence.
- Whether the possessor/controller was a party to the civil case and in some way benefited from its loss.
- The extent to which the loss of that evidence prejudiced the other side in its ability to prove/disprove pivotal facts.
- If the person/organization was a non-party to the case, whether they owed the duty – by contract, statute, or timely-served preservation/discovery request – to preserve the evidence.
Since the 1980s, Florida courts have repeatedly held that when physical evidence is lost, misplaced, destroyed, or otherwise made not available AND it fundamentally prejudices the other side’s chance to pursue/defend a claim, courts have the authority (and broad discretion) to impose sanctions. These can include:
- The legal presumption that key facts pertaining to that evidence would have benefitted the other side.
- Dismissal of the claim (when the plaintiff is the spoliator).
- Granting default judgment in favor of the party prejudiced by the loss of that evidence.
Types of Spoliation in Palm Beach Injury Lawsuits
There are two basic types of spoliation: First-party and third-party.
First-party spoliation is when a party to the lawsuit loses or destroys evidence. An example of first-party spoliation in an injury lawsuit would be a hospital destroying a patient’s medical records that would have been essential to a medical malpractice case in which it was a defendant. In this case, the courts typically respond with a sanction imposed on the party that lost/damaged/destroyed the evidence.
One of the earliest examples of a first-party spoliation case in this state was the 1987 Florida Supreme Court decision of Public Health Trust of Dade City v. Valcin. This involved a medical malpractice lawsuit wherein the defendant hospital lost/destroyed the plaintiff’s medical records – which her expert witness needed to review in order to provide his testimony. The trial court, finding the plaintiff lacked the required expert witness testimony, granted summary judgment to the hospital. The Fla. 3rd District Court of Appeals reversed, finding plaintiff’s ability to prove her case was majorly impacted by the fact that she couldn’t access those medical records. In ordering remand, the appellate panel instructed the trial court to ascertain whether the hospital’s actions were deliberate. If it was an accident, the case was to proceed with the rebuttable presumption (meaning it could be challenged with additional evidence) that the lost records would have been to the plaintiff’s benefit. But if the spoliation was intentional, there was to be an irrebuttable presumption in the plaintiff’s favor (meaning the defense would not be allowed to challenge it). Then the Florida Supreme Court weighed in, holding that when key evidence goes missing due to the negligence of one party, regardless of whether it was intentional, then a rebuttable – but not irrebuttable – presumption can be imposed.
As our Palm Beach County injury lawyers can explain, instances of first-party spoliation will more often than not result in the other side “winning.”
Third-party spoliation is when a non-party to the case loses key evidence, even when they had a responsibility to preserve it. These are a separate cause of action from the original injury case.
In 1990, Florida’s Third District Court of Appeal sided with a plaintiff whose product liability claim against a vehicle manufacturer was adversely impacted when her insurance company, after promising to return a wrecked vehicle needed for evidence in a civil claim, turned around and sold the totaled car to a salvage yard for parts. An expert witness for the plaintiff testified the crash was most likely caused by the defect of a particular car part, but he couldn’t say for sure without examining the actual part itself. The plaintiff sued the insurer for negligent retention of records. The lower court sided with the insurer, recognizing no cause of action for denial of opportunity to prove a product liability lawsuit. The 3rd DCA reversed, finding the insurer DID owe a duty to its insured, as established by contract, to maintain evidence important to her personal injury claim. However, the court also made it clear the plaintiff did need to show that the loss of that evidence meant she couldn’t prove her product liability claim.
Additional Evidence May Reduce/Enhance Spoliation Sanctions
Even if spoliation undoubtedly occurred, the sanctions for it aren’t necessarily black-and-white. Courts have a lot of discretion about how to handle it, and much of it depends on the extent to which the nonspoliator was adversely impacted.
For example, if there are pre-spoliation photos of a piece of evidence, that can be used to argue that the impact of the lost/destroyed evidence is nominal.
Sometimes, it may come down to the type of case. For example, if we’re alleging a manufacturing defect of a product, spoliation of evidence is a big deal because it’s the alleged danger of that particular item that’s in question. But if we’re alleging negligent design of a product, then it’s possible we could ascertain much of the same information through examination of any of the other models produced in that same batch.
Lastly, while it isn’t required to prove the loss/destruction of key evidence was intentional to prevail in a spoliation claim, evidence that the spoliator acted in bad faith can compel the courts to impose a more serious sanction.
Bottom line: If you are contemplating filing a South Florida personal injury claim, it’s best to collect as much evidence as you can (photos, videos, saving parts/pieces) in the immediate aftermath, and then talk to an injury lawyer as soon as possible. Your attorney will be able to advise you of which evidence you may be responsible to maintain (photos, videos, screenshots, receipts, voicemails, emails, etc.), and also put in speedy requests of potential defendants/third parties to retain relevant evidence on their end too.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Additional Resources:
SPOLIATION OF EVIDENCE AND NON-PARTY WITNESSES, February 2022, Florida Bar Journal
More Blog Entries:
How Are Palm Beach Personal Injury Settlements Paid Out in Florida? July 29, 2023, Palm Beach Injury Lawyer Blog