The Complaint of Boston Boat III, LLC d/b/a Petitioner/Counter-Defendant vs J.G., Respondent/Counter-Claimant

Lipcon, Margulies, Alsina & Winkleman, P.A

June 9, 2015

The Complaint of Boston Boat III, LLC d/b/a  vs J.G.,

Summary

This case involves a musician crewmember who was injured while working aboard the Island Adventure vessel during the 2012 Seminole Hard Rock Winterfest Boat Parade. The maritime attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A. filed this motion asking the Court to sanction the owner of the vessel for changing the area where the incident occurred, thereby making it impossible to inspect the boat in the condition it was in at the time of the incident.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

 

IN ADMIRALTY

CASE NO. 13-CIV-62116-JAL

 

IN THE MATTER OF:

 

The Complaint of Boston Boat III, LLC d/b/a

Water Transportation Alternatives as Owner of Island

Adventure, a 1964 Paasch Marine Service vessel

Bearing Hull Identification No. 153, USCG Official

Number 295280, its Engines, Tackle, Appurtenances,

Equipment, & Etc., in a cause of Exoneration from or

Limitation of Liability,

Petitioner/Counter-Defendant

vs.

J.G.,

Respondent/Counter-Claimant

___________________________________________/

 

RESPONDENT’S MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE AGAINST PETITIONER BOSTON BOAT III

d/b/a WATER TRANSPORTATION ALTERNATIVES

COMES NOW, the Respondent, J.G. (hereinafter referred to as “Mr. J.G.”), hereby files his Motion for Sanctions for Spoliation of Evidence Against Petitioner Boston Boat III, LLC d/b/a Water Transportation Alternatives (hereinafter referred to as “Boston Boat”), and relies on the following memorandum of law.

OVERVIEW

Mr. J.G. was hired as a musician aboard the vessel, Island Adventure, during the 2012 Seminole Hard Rock Winterfest Boat Parade. While performing on the upper-deck of the Island Adventure, a passenger fell into Mr. J.G., causing severe and permanent injuries, requiring two back surgeries. In the Complaint, Plaintiff alleged that the cause of injury was due to, inter alia, failure to have adequate handholds and failure to have adequate flooring. [D.E. 10, ¶13].The actions and/or inactions of Boston Boat, which led to the spoliation of evidence, are the subject matter of this motion.

After this incident in December 2012, Defendant completely changed the upper-level of the Island Adventure, making it impossible to inspect the boat in its condition at the time of the incident. Boston Boat had a duty to preserve the boat and the evidence related to the incident. Boston Boat breached their duty when they decided to remove the scene of the incident and destroy vital evidence one year after litigation began. Boston Boat further breached their duty when they did not give Plaintiff’s counsel notice prior to destroying evidence. Boston Boat’s actions are even more egregious due to the fact that Boston Boat’s Counsel knew that evidence was being destroyed and did nothing to mitigate the situation. Mr. J.G. submits that this egregious conduct supports a finding of spoliation of evidence and sanctions against Boston Boat, as fully set forth below.

MEMORANDUM OF LAW

ISSUE PRESENTED

THERE IS A CLEAR DUTY TO PRESERVE THE VESSEL, ISLAND ADVENTURE, IN THE SAME CONDITION AS IT EXISTED AT THE TIME OF THE INCIDENT. BOSTON BOAT FAILED TO PRESERVE THE ISLAND ADVENTURE. ACCORDINGLY, WHAT IS THE PROPER REMEDY TO LEVEL THE PLAYING FIELD BASED ON BOSTON BOAT’S FAILURE TO PRESERVE VITAL EVIDENCE?

I. FACTS AND PROCEDURAL POSTURE: BOSTON BOAT’S SPOLIATION OF CRITICAL EVIDENCE NECESSITATES SEVERE SANCTIONS IN ORDER TO LEVEL THE PLAYING FIELD

Mr. J.G. was a fifty-three (53) year old musician hired to perform aboard Boston Boat’s vessel, Island Adventure, during the 2012 Seminole Hard Rock Winterfest Boat Parade. On December 15, 2012, Mr. J.G. was part of a band who performed in an enclosed area on the upper-level of the Island Adventure. (See photo of vessel attached as Exhibit 1.) During the pleasure cruise, a female passenger fell into Mr. J.G. while he was performing, causing severe injuries to Mr. J.G.’s back.

On September 27, 2013, Boston Boat filed an action for limitation of liability. [D.E. 1]. Mr. J.G. responded to the action on November 27, 2013, by filing an answer and counterclaim against Boston Boat to recover for the injuries sustained on the Island Adventure. [D.E. 10]. Mr. J.G. claimed it was Boston Boat’s negligence that caused the female passenger to fall into him. Specifically, Mr. J.G. alleged, inter alia, inadequate flooring and a failure to have adequate handholds in the vicinity of the area where the female passenger fell. Id.

Upon service of this counterclaim, Boston Boat and their counsel were on notice that the subject matter of Mr. J.G.’s claim revolved around the condition of the floor, slip-and-fall hazards, as well the location of any handholds. After receiving notice as to what Plaintiff’s theory of liability was, Boston Boat was under a clear duty to preserve the Island Adventure in the same condition as it existed during the time of the incident. This duty is of pivotal importance because without the ability to inspect the vessel in its condition at the time of incident, Plaintiff’s ability to prove his theory of liability is severely limited.

On March 3, 2015, Mr. J.G. served his Request for Production on Boston Boat. (See copy of Request for Production attached as Exhibit 2.) Request thirty-one (31) asked for “[p]roposed dates, locations, and times when Petitioner/Counter-Defendant will allow the Claimant access to the subject vessel to conduct an inspection, measure, survey and photograph.” (Id.) This request further notified Boston Boat of Mr. J.G.’s intent to inspect the Island Adventure for evidence and the need for the vessel to be kept in the same condition it was in at the time of the incident.

On March 4, 2015 (one day after Mr. J.G. served his Request for Production upon Boston Boat’s Counsel) Boston Boat and their Counsel performed an inspection of the Island Adventure. Photos taken during Defendant’s inspection revealed that the Island Adventure was already in the beginning stages of a major remodeling/renovation. Photos of the upper-level of the vessel revealed that all of the carpeting was removed. (See photos attached as Exhibit 3.) Photos of the lower-level of the vessel showed a worker in the process of removing carpet. (See photos attached as Exhibit 4.) At the time of Defendant’s inspection, the only visible changes in the area where the incident took place was the removal of the carpeting. The enclosed structure on the upper-level of the vessel remained in place and unchanged. Plaintiff’s Counsel was never advised that changes were occurring.

By the time Mr. J.G. was given the opportunity to inspect the Island Adventure on May 13, 2015, the upper-level had been drastically changed. The area where the accident occurred was totally cleared out. All of the wall panels were removed as well as the window frames, roofing and support poles for the enclosed structure. (See photos attached as Exhibit 5.) When Mr. J.G.’s Counsel and expert performed their inspection, there was no decking, just bare metal. (Id.) Plaintiff’s expert reported that the change in the accident scene made him “unable to provide any opinions or do any analysis regarding the actual location of the fall.” See Expert Report at p.4 attached as Exhibit 6.

On May 15, 2015, Mr. J.G.’s Counsel deposed the Boston Boat’s Corporate Representative and President, William Walker. Mr. Walker was asked a series of questions regarding the remodeling/renovations of the Island Adventure. See pgs. 41-60 of Plaintiff’s Deposition attached as Exhibit 7. Plaintiff’s Counsel asked: “Okay. Just to be clear, you made the business decision, as you called it, to do a total refurbishment of the area where the incident occurred knowing that there was a pending lawsuit in that very area?” Id. at 52. To which Mr. Walker replied: “Yes, I did.” Id.

Over a year into the subject lawsuit, Boston Boat decided to completely remove the enclosed structure on the upper-level of the Island Adventure, knowing full well that the crux of Mr. J.G.’s claim dealt with the condition of that area.

On March 3, 2015, Mr. J.G.’s Counsel requested to inspect the subject incident area. Then on March 4, 2015, Boston Boat’s Counsel performed an inspection of the Island Adventure. Photos taken during that inspection revealed that the upper-level was in the beginning stages of renovation, having only removed the carpet from the incident area. At no time did Boston Boat’s Counsel inform Mr. J.G. that the incident area was in the process of being destroyed. And at no time did Boston Boat’s Counsel instruct their client to cease the destruction of the incident area.

Boston Boat was on notice of the need to preserve evidence when the counterclaim was filed in 2013. Boston Boat was further notified by Mr. J.G.’s request to inspect the vessel. Boston Boat and their counsel had an opportunity to mitigate their mistakes on the date of their inspection and refused to do so. The evidence shows this was not a mere mistake or oversight, but a calculated attempt to hinder Mr. J.G.’s ability to prove his claim. For reasons set forth in detail below, this Honorable Court should harshly sanction Boston Boat’s bad faith conduct.

II. THE LAW OF SPOLIATION

Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. Graff v. Baja Marine Corp., 2009 U.S. App. LEXIS 1986 (11th Cir. 2009) citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). Although federal law controls spoliation sanctions, the Court’s opinion may be “informed” by state law, as long as it is consistent with federal law, because federal law in the Eleventh Circuit does not set forth specific guidelines on spoliation. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005).

Thus, depending on the severity of the spoliator’s conduct at issue, there are a number of sanctions available to this Court under Florida’s law on spoliation as well as the Court’s inherent power to impose sanctions – each of which are explained below.

A. FLORIDA’S LAW ON SPOLIATION OF EVIDENCE GIVES THIS COURT THE POWER TO SANCTION THIS EGREGIOUS CONDUCT

Under Florida law, there is a wide spectrum of sanctions available to this court based on the severity of the conduct by the spoliator. When evidence is lost, misplaced, or destroyed by one party in bad faith, then trial courts can rely on sanctions found in Florida Rule of Civil Procedure 1.380(b)(2)[1] and can instruct a jury that it can infer that the spoliated evidence would have contained indications of negligence. See Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005). Whereas if the loss of the evidence was determined to be in good faith or mistaken, then a rebuttable presumption of negligence for the underlying tort applied. See Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987). Similarly, in Federal Courts, sanctions include: (1) dismissal of the case; (2) exclusion of expert testimony; or (3) a jury instruction on spoliation of evidence which raises a presumption against the spoliator. See Flury, 427 F.3d at 944-45.

The most severe sanction of default should be exercised only when there is a showing of bad faith and lesser sanctions will not suffice. See Flury, 427 F.3d at 944-45; see also Aldrich v. Roche Biomedical Laboratories, 737 So.2d 1124, 1125 (Fla. 5th DCA 1999) (the appropriate sanction when a party fails to preserve evidence in its custody depends on the willfulness or bad faith of the party responsible).

Prior to the court exercising any leveling mechanism due to spoliation of evidence, the court must decide: 1) whether the evidence existed at one time, 2) whether the spoliator had a duty to preserve the evidence, and 3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense. Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006); see Flury, 427 F.3d at 944.

District courts have broad discretion to impose sanctions against spoliators.
In exercising that discretion, district courts must also consider: (1) whether the plaintiff was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the defendant acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded. Flury, 427 F.3d at 945.

B. THE INHERENT POWERS DOCTRINE ALSO ALLOWS THIS HONORABLE COURT TO SANCTION BOSTON BOAT’S BAD FAITH FAILURE TO PRESERVE THE ISLAND ADVENTURE

            The Court also has broad discretion to impose sanctions derived from its inherent power to manage its own affairs and to achieve the orderly and expeditious disposition of cases. See Flury, 427 F.3d at 944 (citing Chambers v. NASCO, Inc., 501 U.S. 32 at 43, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991)). Sanctions for discovery abuses are intended to prevent unfair prejudice to litigants and to insure the integrity of the discovery process. Id. The courts have the inherent power to enter a default judgment as punishment for a defendant’s destruction of documents.

The Eleventh Circuit has explained that “[t]he key to unlocking a court’s inherent power is a finding of bad faith.” Allapattah Servs., Inc. v. Exxon Corp., 372 F. Supp. 2d 1344, 1373 (S.D. Fla. 2005) citing Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001). The inherent powers doctrine is most often invoked where a party commits perjury or destroys or doctors evidence. See, Vargas v. Peltz, 901 F. Supp. 1572, 1581-82 (S.D. Fla. 1995). Several federal courts hold that the need for sanctions is heightened when the misconduct relates to the pivotal or “linchpin” issue in the case. See Vargas, 901 F. Supp. at 1582; Nichols v. Klein Tools, Inc., 949 F.2d 1047, 1049 (8th Cir. 1991).

C. THE LAW APPLIED TO THE FACTS OF THIS CASE

Based on the above law, if this Court finds that the evidence was lost, misplaced or destroyed by one party in bad faith or intentionally, then this Court can rely on sanctions found in Fed. R. Civ. P. 37, including default judgment, and/or the Court can instruct a jury that it can infer that the spoliated evidence would have contained indications of negligence. Whereas if this Court finds the spoliation was in good faith or mistaken, then a rebuttable presumption of negligence for the underlying tort can be applied.

Mr. J.G. argues that there is overwhelming evidence to show this was bad faith, intentional spoliation which justifies the harshest sanctions available to this Court, including default judgment and reasonable attorney’s fees. But alternatively, at a minimum, Mr. J.G. is entitled to a rebuttable presumption that there was inadequate flooring and inadequate handholds in the vicinity where the incident took place.

III. BOSTON BOAT’S SPOLIATION OF THE MOST CRITICAL PIECE OF EVIDENCE SATISFIES ALL PREREQUISITES FOR THIS COURT’S IMPOSITION OF HARSH SANCTIONS UNDER FLORIDA LAW

Conducting the analysis set forth by Florida courts, it is clear that the elements of spoliation are satisfied herein.

A. THE ELEMENTS OF SPOLIATION ARE SATISFIED

I. THE EVIDENCE EXISTED

            It is undisputed that even after Mr. J.G. filed his counterclaim, the upper-level of the vessel, Island Adventure, was in the same exact condition as it was at the time of the incident. Therefore, the evidence (i.e., the flooring and handholds, or lack thereof) existed at one time, including at the time Plaintiff filed his Counterclaim against Boston Boat.

  1. BOSTON BOAT HAD A DUTY TO PRESERVE VITAL EVIDENCE

            Boston Boat had a duty to preserve the Island Adventure. The case was over a year into litigation and Mr. J.G.’s counterclaim clearly put Boston Boat on notice as to the theories supporting Plaintiff’s claim. Mr. J.G.’s subsequent request to inspect the vessel further noticed Boston Boat of the need to preserve the Island Adventure. Accordingly, Boston Boat was under a clear duty to preserve the Island Adventure, and at the very least, inform Plaintiff’s Counsel that the scene of the incident was going to be completely removed and time was of the essence to inspect the scene of the incident to inspect the scene of the incident.

  1. THE DESTROYED EVIDENCE WAS CRITICAL TO PLAINTIFF’S CASE

It is indisputable that the scene of the incident was critical to the Plaintiff’s case. Mr. J.G. pled multiple theories of liability, including inadequate flooring and inadequate handholds in the vicinity of the incident area. There are a number of ways in which the flooring and/or inadequacy of any handholds could have led to the female passenger falling into Mr. J.G. For example, the female passenger could have fallen due to a worn carpet or uneven flooring surface. Furthermore, it was vital for the Plaintiff to be able to analyze the location and practicality of all handholds in the vicinity which could have prevented the fall. Mr. J.G.’s expert even reported that the change in the accident scene made him “unable to provide any opinions or do any analysis regarding the actual location of the fall.” See Exhibit 5 at p.4.

As such, inadequate flooring and inadequate handholds were (and remain) two of the principle theories of Mr. J.G.’s negligence cause of action. Now, it will be difficult, if not impossible, for Mr. J.G. to prove these two theories solely because of Boston Boat’s failure to preserve the Island Adventure.

B. ALL OF THE FACTORS UNDER THE ELEVENTH CIRCUIT’S OPINION IN FLURY ARE SATISFIED

Applying the Flury factors herein, it is evident that this Honorable Court should impose a severe sanction against Boston Boat.

I. PLAINTIFF WAS SEVERELY PREJUDICED BY THE DESTRUCTION OF EVIDENCE

Mr. J.G. is severely prejudiced by the destruction or failure to preserve the Island Adventure. As stated above, an inspection of the scene of the incident would likely have proven more than one of Plaintiff’s theories of liability, any of which would be integral to the success of Plaintiff’s negligence cause of action against Boston Boat.

  1. THE PREJUDICE CANNOT BE CURED

There is no cure for this severe prejudice other than for this Honorable Court to impose harsh sanctions in order to level the playing field.

  1. THE PRACTICAL IMPORTANCE OF THE EVIDENCE IS OVERWHELMING

The practical importance of preserving the Island Adventure is clear. The condition of the area where the incident occurred is one of the driving theories behind Mr. J.G.’s case. As stated above, the scene of the incident had the potential to reveal dispositive evidence of liability against Boston Boat. In practical terms, without being able to inspect the Island Adventure in its original condition, Mr. J.G. is virtually handcuffed in proving that theory of liability.

  1. BOSTON BOAT ACTED IN BAD FAITH

Boston Boat’s actions and inactions surrounding this matter are direct evidence of bad faith. As discussed throughout this motion, Boston Boat made the decision to spoliate evidence while in the middle of litigation. Boston Boat then continued with their decision to spoliate evidence even after Plaintiff requested to inspect the vessel. Furthermore, Boston Boat’s Counsel observed the spoliation in its beginning stages and neither instructed their client to stop nor advised Plaintiff’s Counsel of the situation.

If this Honorable Court does not find direct evidence of bad faith, case law provides that bad faith may be founded on circumstantial evidence:

If direct evidence of bad faith is unavailable, bad faith may be founded on circumstantial evidence when the following criteria are met: (1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.

Walter v. Carnival Corp., No. 09-20962-CIV, 2010 WL 2927962, at 2 (S.D. Fla July 23, 2010) (citing Calixto v. Watson Bowman Acme Corp., No. 07–60077–CIV, 2009 WL 3823390, at 16 (S.D.Fla. Nov.16, 2009).

Each criteria is addressed separately below.

(1) Being able to inspect the original condition of the Island Adventure was material in proving several of Mr. J.G.’s claims in the case.

As addressed above, the ability to inspect the incident area of the Island Adventure in its condition at the time of the incident was pivotal in proving Plaintiff’s theories of liability. Plaintiff lost out on the opportunity to have his own expert form an opinion which would have been used at trial. Furthermore, Plaintiff would have been able to accurately document and photograph the scene of the incident.

(2) Boston Boat affirmatively decided to destroy evidence after being in litigation for over a year.

Over a year after the claim was filed, Boston Boat, knowing full and well what the crux of the matter was, decided to completely remove the scene of the incident without notifying Plaintiff’s Counsel. Furthermore, when the destruction of evidence was brought to the attention of Boston Boat’s Counsel at Defendant’s inspection, nothing was done to mitigate the situation. Boston Boat’s Counsel never instructed their client to stop, nor did they inform Plaintiff’s Counsel that time was of the essence.

(3)  Boston Boat spoliated evidence knowing there was a duty to preserve such evidence.

As addressed above, Boston Boat knew there was a duty to preserve the Island Adventure due to the fact that litigation had commenced over a year prior to the spoliation of evidence. Additionally, Boston Boat was reminded of their duty when Plaintiff requested to inspect the Island Adventure one day prior to Defendant’s inspection.

(4) Boston Boat does not have a credible explanation as to why the evidence was spoliated.

During the deposition of Boston Boat’s Corporate Representative and President, William Walker, Mr. Walker was asked a series of questions as to why he decided to go forward with the remodeling/renovations of the Island Adventure despite the pending lawsuit.

Question: You did these renovations to this area knowing there was a lawsuit that dealt with that very area; agreed?

Answer: Yes. Yes.

Question: Okay. Why?

Answer: I didn’t think it had any relevant bearing on the lawsuit or we had to keep going on business, no one instructed us that we couldn’t upkeep our vessel or refurbish it or anything like that.

Question: I mean, I think you said it’s something that just didn’t make it relevant. So what did you mean by that?

Answer: I don’t think that, you know, experts came out, looked at the boat, and we took pictures and we were like, okay, we’re moving on with business.

Question: But did you know that those weren’t my experts or did you assume those were also plaintiff’s experts?

Answer: I actually really never gave it any thought.

Question: Well, a second ago you said you thought it was irrelevant, and now you’re saying you didn’t give any thought to it. So which one is it?

Answer: I never gave any thought to it.

Exhibit 7 at pages 48-50 (emphasis added).

The situation was exacerbated when Boston Boat’s Counsel performed their own inspection, witnessed the spoliation and failed to instruct their client to stop. The photos produced from that inspection revealed that the renovations of the upper-level of the Island Adventure were only in the beginning stages. There is no explanation as to why Boston Boat’s Counsel did not attempt to mitigate the situation and stop the spoliation of vital evidence.

  1. The potential for abuse if expert testimony about the evidence was not excluded

Any opinions or positions held by Boston Boat regarding the condition of the incident area will be difficult to challenge because Mr. J.G.’s expert was never able to analyze the incident area and formulate an opinion as to why the fall occurred. Therefore, in light of Boston Boat’s spoliation of the Island Adventure, Boston Boat should be prohibited from introducing any testimony regarding the floor condition and adequacy of handholds in the vicinity of the incident area.

IV. THIS HONORABLE COURT SHOULD ‘CALIBRATE THE SCALES’ IN ORDER TO DETERMINE THE PROPER SANCTION

“After finding the existence of serious and repeated instances of litigation misconduct, the Court must then ‘calibrate the scales’ in determining what sanction corresponds to the misconduct and whether a sanction less than the draconian one of default would ‘sufficiently punish and deter the abusive conduct while allowing a full and fair trial on the merits.'” See Shepherd v. American Broadcasting Companies, 62 F.3d 1469, 1472-73 (D.C. Cir. 1995). Herein, all of the elements and factors regarding spoliation of evidence are satisfied. Thus, this Court should fashion the appropriate relief in order to remedy this egregious conduct.

A. No sanction less than default judgment and reasonable attorney’s fees and costs would sufficiently punish and deter the abusive conduct while allowing a fair trial on the merits

As explained above, there is clear and convincing evidence that Boston Boat acted in bad faith when they failed to preserve vital evidence in this case. Boston Boat’s egregious conduct calls for the severe sanction of default judgment as to liability.

In Flury v. Daimler-Chrysler Corp., the Eleventh Circuit Court of Appeals made clear that a case such as this “hinges upon the significance of the evidence destroyed, and upon the extreme prejudice the [non-spoliator] suffered as a result.” Id. at 943 (emphasis added). In Flury, where the spoliator failed to preserve an allegedly defective vehicle in a crashworthiness case, the Court found that the vehicle was, in effect, the most crucial and reliable evidence available to the parties. Id. The Court stated: “We cannot imagine a case in which the evidence destroyed would prove more critical.” Id. at 947. The Court found the resulting prejudice to the innocent party incurable, and dismissal necessary. Id. at 943. The instant matter revolves around an injury caused by the condition of the vessel, Island Adventure. Therefore, as in Flury, it is hard to imagine a case in which the evidence destroyed would prove more critical. In accord with Flury, this Honorable Court should find that the resulting prejudice to Mr. J.G. is incurable and default necessary.

Furthermore, Mr. J.G. should be entitled to an award of attorney’s fees for Boston Boat’s egregious conduct. This Court possesses the inherent power to sanction a party who conducts litigation in bad faith and attempts to perpetrate fraud on the court. Chambers v. NASCO, Inc., 501 U.S. 32, 43-51 (1991) (affirming an award of $996,644.65 in attorney’s fees). Accordingly, Mr. J.G. also requests an evidentiary hearing to determine a reasonable amount of attorney’s fees.

Finally, the evidence shows that Boston Boat attempted to obtain judicial relief based upon fraudulent means. As the district court in Vargas observed: “Litigants must know that the courts are not open to persons who would seek justice by fraudulent means.” Vargas, 901 F. Supp. at 1582. “Use of the ‘ultimate sanction’ addresses not only prejudice suffered by the opposing litigants, but also vindicates the judicial system as a whole, for such misconduct threatens the very integrity of courts, which otherwise ‘cannot command respect if they cannot maintain a level playing field amongst participants.'” Chemtall, Inc., 992 F. Supp. at 1409 (citing Derzack v. County of Allegheny, Pa., 173 F.R.D. 400, 414 (W.D. Pa. 1996)). Herein, this Honorable Court can adequately address the severe prejudice suffered by Mr. J.G. and vindicate the judicial system as a whole by entering a default judgment as to liability against Boston Boat.

B. ALTERNATIVELY, MR. J.G. IS ENTITLED TO AN ADVERSE INFERENCE BASED ON BOSTON BOAT’S SPOLIATION

If this court does not find that the ultimate sanction of default judgment is appropriate, then Mr. J.G. should be entitled to an adverse inference instruction. The rule in the Eleventh Circuit used to be that, “an adverse inference could be drawn from a party’s failure to preserve evidence only when the absence of that evidence is predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997). But since Flury, bad faith is only one factor to consider. Flury, 427 F.3d at 946. Now courts “should weigh the degree of the spoliator’s culpability against the prejudice to the opposing party.” Id (emphasis added). In evaluating culpability, district courts routinely look to a party’s failure to take proper measures to preserve evidence. Ladner v. Litespeed Mfg. Co., 537 F.Supp.2d 1206, 1214 (N.D. Ala. 2008)(court examined whether or not there was a “failure to exercise any precautions to safeguard” evidence).

Here, Boston Boat had a clear duty to preserve the scene of the incident aboard the Island Adventure. Boston Boat had been litigating the case for over a year by the time the Island Adventure’s renovations began. Additionally, Mr. J.G. requested to inspect the vessel at a time where the renovation process could have been stopped and the damages could have been mitigated. One day after the request to inspect the vessel, Boston Boat’s Counsel performed their own inspection where they witnessed the spoliation firsthand and could have instructed their client to stop renovating. Nevertheless, Boston Boat failed to preserve vital evidence. This reckless and intentional conduct of both Boston Boat and their Counsel show a high degree of culpability. And when Boston Boat’s culpability is weighed against the severe prejudice to Mr. Galitoto, the need for an adverse instruction is overwhelming. Accordingly, should this Court find that default is not warranted, then the appropriate sanction for Boston Boat’s spoliation is an adverse inference instruction to the jury directing that the spoliated evidence would have supported Mr. J.G.’s case by showing that the condition of the floor caused the fall that lead to Mr. J.G.’s injuries.

C. ALTERNATIVELY, IF THIS COURT CONCLUDES THAT BOSTON BOAT DID NOT ACT IN BAD FAITH, MR. J.G. IS ENTITLED TO A PRESUMPTION OF NEGLIGENCE DUE TO BOSTON BOAT’S SPOLIATION OF THE ISLAND ADVENTURE

At a minimum, Mr. J.G. is entitled to a presumption of negligence against Boston Boat. There is a clear spectrum of sanctions available to this court based on the severity of the conduct by the spoliator. Turning to state law to guide the court in its analysis, the Florida Supreme Court clarified the distinction between good faith and bad faith (also referred to as Negligent and Intentional) Spoliation. See Martino v Wal-Mart, 908 So. 2d 342 (Fla. 2005). When evidence is intentionally lost, misplaced, or destroyed by one party, trial courts are to rely on sanctions found in Florida Rule of Civil Procedure 1.380(b)(2) (patterned after Fed. R. Civ. P. 37) and that a jury could well infer from such a finding that the records would have contained indications of negligence. Id. Whereas if the loss of the evidence was determined to be negligent, a rebuttable presumption of negligence for the underlying tort is applied. See Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987). In short, if the spoliation is intentional or in bad faith then sanctions are available under Rule 37 and an inference of negligence is available. If the spoliation is in good faith or negligent, then a rebuttable presumption is available.

Herein, while Mr. J.G. argues that the harshest of sanctions are available to this Court based on this bad faith conduct, Mr. Galitoto alternatively argues that if Boston Boat’s spoliation is merely found to be negligent and/or mistaken, then Mr. J.G. is entitled to a rebuttable presumption of negligence.

Federal Rule of Evidence 302 makes clear that presumptions are determined in accordance with State Law. The leading case in Florida regarding the rebuttable presumption, Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 600 (Fla. 1987), states that once the burden of proof is shifted under Fla. Stat. Ann. § 90.302(2), the presumption remains in effect even after the party to whom it is shifted introduces evidence tending to disprove the presumed fact, and the jury must decide whether the evidence introduced is sufficient to meet the burden of proving that the presumed fact does not exist. When evidence rebutting a presumption is introduced, the presumption does not automatically disappear. Id. It is not overcome until the trier of fact believes that the presumed fact is overcome by whatever degree of persuasion is required by the substantive law of the case. Id. at 600-601.

Accordingly, at a minimum, and only as an alternative to what Mr. J.G. believes is clear evidence of intentional, bad faith spoliation, Mr. J.G. is entitled to a rebuttable presumption that the condition of the vessel’s floor was inadequate under the circumstances.

V. CONCLUSION

It is clear from the record that Boston Boat completely removed the incident area from the Island Adventure. The preservation of the incident area was vital in proving Mr. J.G.’s theory of liability. It is Mr. J.G.’s position that Boston Boat acted in bad faith and destroyed the evidence intentionally. His position is supported by the fact that litigation had commenced over a year prior to the spoliation as well as the fact that Boston Boat had notice of Mr. J.G.’s intent to inspect the vessel. Furthermore, through their own inspection, Boston Boat’s Counsel knew of the renovations and did absolutely nothing to cure the spoliation. Mr. J.G.’s ability to prove his case has been severely inhibited and the only remedy to cure this prejudice is this Honorable Court’s sanctioning power.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order Granting Plaintiff’s Motion for Sanctions for Spoliation of Evidence; enter an order awarding Attorney’s fees and costs, and any other relief this Court deems reasonable and necessary.

CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of June 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.

Respectfully submitted,

 

LIPCON, MARGUILIES

ALSINA & WINKLEMAN, P.A.

Attorneys for Plaintiff

One Biscayne Tower, Suite 1776

2 South Biscayne Boulevard

Miami, Florida 33131

Telephone: (305) 373-3016

Facsimile: (305) 373-6204

 

By: /s/ Michael A. Winkleman                  

MICHAEL A. WINKLEMAN

Florida Bar No. 36719

PETER J. RIDGE

Florida Bar No. 114263

[1] Fla. R. Civ. P. 1.380 is derived from Fed. R. Civ. P. 37. See R. 1.380, Committee Notes, 1972 Amendment.