Electronic Footprints May Lead to Liability

The recent crash of an MBTA bus that injured several people is a valuable reminder about the electronic “footprints” that are increasingly important in proving or defending civil lawsuits.  According to news reports, the bus driver was captured on security video using her cell phone–while the phone itself apparently showed no calls or texts at the time of the accident.

From to MBTA to Aaron Hernandez to the ordinary slip and fall in a department store or supermarket. litigants are finding that videotapes can make or break their cases.  Any lawyer handling a case involving an incident in a public space would be remiss if he didn’t go looking to see if the event was captured on film.  In the case of the MBTA bus, eight cameras on board showed various angles that permitted investigators to confront the driver with visual evidence of cell phone use.

And cell phones themselves are treasure troves of information.  The device itself contains information about incoming and outgoing texts, emails and phone calls–again, a source of information that can’t be ignored in an automobile case.  Even in other types of cases, the phone may provide important evidence of distraction: was that pedestrian texting while walking or crossing the street? On a more sophisticated level, many phones have GPS tracking information that can pinpoint their location at specific points in time.  And many people reflexively snap a photo when something interesting or unusual happens.  Sometimes these random shots even end up on YouTube,

The surprising thing isn’t that so much electronic information is available, but that so many people conduct themselves with apparent disregard for its availability.  Did the bus driver not realize that her every action was captured on film?  Do drivers who text not understand that most middle school students could uncover the time of incoming and outgoing messages?  Probably not–it’s much more likely that these people simply don’t think that anything will go wrong, and they’ll never get caught.

And so the careful lawyer will aggressively seek out this evidence, both from his own client and from opposing parties.  Electronic evidence may be more ephemeral than its documentary counterpart, and so it’s important for lawyers to consider early on what sources might be available and be sure they are preserved before they are destroyed–either purposefully or as a matter of routine.  And it’s likewise important to remind clients about the pitfalls of either creating or destroying electronic evidence.

Electronic evidence, once important only in business cases, is playing an increasingly significant role in many types of cases involving individuals.  Lawyers and clients should never forget that.

When Asking Once Isn’t Enough

A recent federal court decision is an important reminder to litigants of the need to safeguard physical evidence that may be relevant to a products liability lawsuit.  In Fireman’s Fund Insurance Co. v. Bradford-White Corp., U.S. District Judge Gorton rejected the defendant’s argument that the case should be dismissed, but will allow argument that a negative inference should be drawn on account of the plaintiff’s failure to preserve the product at issue.

The subrogation case involved Fireman’s Fund’s efforts to recover damages it paid on account of water damage at an apartment complex in Marlborough.  The insurer alleged that the leak was caused by a defect in a water heater manufactured by the defendant, Bradford-White.  Fireman’s Fund had requested its insured, Bell Partners, to retained the water heater when it was replaced after the leak.  However, other than making this request, it does not appear that Fireman’s Fund make efforts to insure that its instructions were followed, or that the heater was properly identified and segregated to insure its availability for inspection.  According to Judge Gorton’s opinion, the insurer compounded its failures by its dilatory response to the defendants’ request to inspect the heater.  When the day for the defense inspection finally arrived, the parties discovered that the water heater was not available, its whereabouts and date of disposal unknown.

However, Judge Gordon did not find any bad faith or intentional spoliation on the part of Fireman’s Fund.  Rather, the court noted, this was simply a case where the plaintiff insurer could have done more–at most, its actions were negligence.  The court then focused on the prejudice to the defendant flowing from its inability to inspect the water heater at issue.

After considering the alternative sources of evidence available to the defendant, including two heaters which, although similar in design to the heater at issue, had been used under different atmospheric conditions, Judge Gorton concluded that dismissal of the claim was not warranted.  The judge further declined to bar the plaintiff’s expert, who had examined the water heater before it went missing, from testifying about her findings.  However, the defendant will be permitted at trial to offer evidence of the plaintiff’s failure to safeguard the heater, and to argue that the jury might infer from the heater’s disappearance that it would have been damaging to the plaintiff’s case.

While the plaintiff no doubts feels fortunate to have dodged the dismissal or exclusion bullets, even the adverse inference seems harsh in a situation where the insurer had requested that the water heater be preserved, and the third party who had custody of the evidence was responsible for its disappearance.  Although not stated, perhaps the fact that the custodian was the insured of the plaintiff may have made the court more willing to attribute Bell Partner’s negligence to its insurer, Fireman’s Fund.  Further, although the court criticized the plaintiff for delaying in scheduling the inspection, there was apparently no evidence that the water heater’s disappearance occurred during that period of delay.

The take-home message, though, is that parties who have cases dependent on physical evidence would be well-advised to take multiple affirmative steps to secure the evidence, and, where possible, take charge of the product or other evidence themselves rather than relying on a third party.  By failing to insure the continued availability of the water heater, Fireman’s Fund no doubt made its case unnecessarily difficult, when a few simple steps could have avoided the problem altogether.

Read the opinion in Fireman’s Fund Insurance Co. v. Bradford White Corp. here.

Evidence Corner: G.L. c. 233 s. 79B

The Supreme Judicial Court recently issued a decision regarding a little-used and often-overlooked hearsay exception that provides an avenue for the admission of a wide variety of documents into evidence.  In N.E. Physical Therapy Plus, Inc. v. Liberty Mutual Ins. Co., the Court held that the trial court properly rejected an attempt by Liberty Mutual to offer into evidence a statistical study culled from a database of medical charges, as evidence that the plaintiff’s charges were unreasonably high.

Liberty attempted to invoke G.L. c. 233, § 79B, which provides that:

“Statements of fact of general interest to persons engaged in an occupation contained in a list, register, periodical, book or other compilation, issued to the public, shall, in the discretion of the court, if the court finds that the compilation is published for the use of persons engaged in that occupation and commonly is used and relied upon by them, be admissible in civil cases as evidence of the truth of any fact so stated.”

The trial court rejected the evidence, noting that the statistics offered by Liberty Mutual were based on data voluntarily submitted by participating insurers, to which a proprietary formula was applied.  There was no evidence that the resulting costs had ever been cross-checked against actual data for accuracy. In fact, the Court noted that the New York Attorney General had investigated the company and criticized the methodology, noting that its calculations seemed to understate medical costs.

Liberty Mutual argued–against the specific language of the statute–that the trial judge had no discretion to reject the evidence.  The SJC, not surprisingly, disagreed.  The Court noted that the exercise of discretion encompassed a finding of reliability or trustworthiness by the trial court as a foundation requirement for admissibility.

Notwithstanding Liberty Mutual’s failure, G.L. c.233 s.79B is a powerful weapon in the trial lawyer’s arsenal.  The statute’s potential applicability is limited only by the lawyer’s imagination, and may provide a path to admissibility for a surprisingly broad range of documents into evidence.  These may include such varied items as membership directories, Medicare billing code definitions, historical interest rates,  and other financial calculations. The statute forms the basis for Section 803(17) of the Massachusetts Guide to Evidence.

Any trial lawyer with a directory or database to offer should review Section 79B to see if the document satisfies the requirement for admissibility under this important but largely ignored statute.  If the document contains objective facts, rather than conclusions or opinions, there’s a good chance it’s admissible under Section 79B.

Read the decision in N.E. Physical Therapy v. Liberty Mutual here.

When Simple Malpractice isn’t Simple

broken glassA woman falls on broken glass, cuts herself, and goes to the local emergency room, where the doctor on duty sends her home without finding a piece of the glass lodged in her buttocks.  Several days later, another doctor orders a CT scan–not done by the first doctor–that shows the glass.  On its face, many people would think this is clear malpractice–the first doctor should have found and removed the shard of glass.

A recent decision by the Massachusetts Appeals Court reminds patients and lawyers alike that even seemingly simple malpractice cases aren’t all that simple.  In Delaney v. Russo, the court dismissed the case because the patient didn’t have a medical expert witness to testify that the emergency room’s doctor’s failure to find the piece of glass was malpractice.  The patient had claimed that the malpractice was so obvious that a jury could recognize it without testimony from an expert.  The court disagreed, and that was the end of the plaintiff’s case.

The general rule in medical malpractice cases is that expert testimony is required to prove both the standard of care–what the average health care provider would have done under the circumstances–and causation–how the alleged negligence of the defendant caused injury.  The only exception is if the negligence is so obvious that it falls within the “common knowledge” of the jurors.  In fact, this seemingly straightforward case would require expert testimony on several points: 1) that the standard of care required the emergency room doctor to do a particular test to search for broken glass; 2) that the test, if performed, would have located the glass, and 3) that the patient was harmed by the doctor’s failure to find the glass.

Many people with potential malpractice claims that seem obvious are dismayed to learn that the legal requirements for expert testimony make it difficult or impossible to bring their claims.  Particularly if the injury is minor or temporary, the expense of hiring an expert witness can be prohibitive, and the patient is left with no practical remedy.

The result in Delaney v. Russo demonstrates the danger in attempting to proceed with a malpractice case without an expert witness.  Experienced malpractice lawyers can help determine whether a claim is valid, and whether expert testimony will be required to bring the case.

The Appeals Court opinion is available on the court’s website.

A Shameless Plug for the Massachusetts Guide to Evidence

evidence guide coverThe Supreme Judicial Court yesterday announced the release of the 2013 version of the Massachusetts Guide to Evidence.  This fifth annual revision of the Guide adds dozens of new cases decided during the past year, as well as several new sections and a summary of the rapidly changing law on hearsay and the confrontation clauses.

The Guide is one of the most useful publications to come onto the Massachusetts legal scene in the last few years.  (DISCLAIMER: I have been privileged to participate in the preparation and revision of the Guide as a member of the Executive Committee.)  First published in 2009, the Guide collects the existing law of evidence in the Commonwealth, arranged in a format modeled on the Federal Rules of Evidence.  There are more exhaustive and scholarly evidence treatises, such as the Liacos classic now updated by Mike Avery and Mark  Brodin , but the Guide is the book that the Massachusetts judges are using in the courtroom.

Lawyers can purchase the official version of the Massachusetts Guide to Evidence from the Flascher Judicial Institute, or download the content for free from the Supreme Judicial Court’s website.  Both trial and appellate court judges have begun citing the Guide in their written opinions, and the number of citations is increasing rapidly.  Since Massachusetts has famously refused to adopt formal rules of evidence, trial lawyers have lacked a single source for the Commonwealth’s evidence law.  This Guide fills that gap, serving as an invaluable reference for anyone who practices in the courts of the Commonwealth.  (SECOND DISCLAIMER: I have no financial interest in whether anyone buys the book or not, but I certainly wouldn’t want to go into court without it.)