Susanna Mangione, Plaintiff v. Jules J. Jacobs, Ramabel Limo, Inc., and Glener V. Simbana, Defendants, 7842/2010
Cite as: Mangione v. Jacobs, 7842/2010, NYLJ 1202566212043, at *1 (Sup., QU, Decided July 31, 2012)
Justice Charles J. Markey
Decided: July 31, 2012
For the Plaintiff: by Sameer Chopra & Alex Nocerino, Esqs., Chopra & Nocerino, LLP, New York, NY.
For the Defendant Jules J. Jacobs: by Debra A. Malone and Kevin Flores, Esqs., Mendolia & Stenz, Westbury, NY.
For the Defendants Ramabel Limo, Inc. and Glener V. Simbana: by Ira E. Goldstein, Esq., O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, NY.
The following papers numbered 1 to 14 read on this motion by defendants Ramabel Limo, Inc., and Glener V. Simbana for summary judgment on the issue of liability and the motion by defendant Jules J. Jacobs, pursuant to CPLR 3126, to dismiss the complaint for plaintiff's failure to submit to Independent Medical Examinations.
Motions for Summary Judgment and to Dismiss… 1-2
Opposing Affirmations and Exhibits… 3-4
Reply Affirmations and Exhibits… 5-9
Additional Briefing Invited by the Court… 10-13
Signed and Filed Copy of So-Ordered Stipulation of January 25, 2012… 14
This decision raises an issue of first impression under New York law of whether a plaintiff, who has a pending personal injury action, has engaged in spoliation of evidence by undergoing surgery for her physical problems that she sustained allegedly as a result of the accident before defendants could schedule Independent Medical Examinations ("IMEs"). The Court had invited the parties, even after the return date of the motions, to submit memoranda of law, but none of the submissions raised a case that was precisely on point, thereby leading this Court to conduct its own independent legal research.
On December 2, 2009, the plaintiff Susanna Mangione ("Mangione") was a passenger in a taxi, livery cab, or vehicle for hire (collectively referred to, for sake of
convenience, as "the taxi") owned by defendant Ramabel Limo, Inc. ("Ramabel") and operated by defendant Glener V. Simbana ("Simbana"). The vehicle carrying Mangione collided, in Queens County, with the car owned and operated by defendant Jules J. Jacobs ("Jacobs").
First, defendants Ramabel and Simbana have moved for summary judgment only on the issue of liability, contending that the accident was solely the fault of defendant Jacobs. Mangione opposes the motion for summary judgment alleging that, while she was a passenger in the taxi, she had observed its driver, defendant Simbana, talking out loud, conveying the impression that he was, while driving, continuously engaged in conversation with someone while using either an earpiece or a "hands free" telephone device.
In opposing the motion, Mangione's counsel correctly observes that the New York City Taxi and Limousine Commission, for numerous years, has forbade taxi and livery car drivers, from engaging in any telephone conversations, even while using a "hands-free" device, except when the vehicle is parked. Defense counsel for Ramabel and Simbana contend that the regulation was not in effect on the date of the accident.
The starting point for the discussion is N.Y. Vehicle and Traffic Law ("VTL") section 1225-c(3), exempting "hands free" devices from the ban against motorists engaging in cell phone conversations while driving in New York State. See also, VTL §1225-c(1)(e) [defining a "hands-free mobile telephone"]; VTL §1225-c(2) [prohibiting cell phone conversations]; Smilow v. New York State Department of Motor Vehicles, 95 AD3d 1023 [2nd Dept. 2012] [discussing the presumption in VTL §1225-c(2)(a) & (b) that vehicle's operator was engaged in a conversation with a prohibited cell phone while driving].
Supreme Court Justice Martin E. Ritholtz of this Court, in Morano v. Slattery Skanska, Inc., 18 Misc 3d 464 [Sup Ct Queens County 2007], a significant judicial opinion concerning the use of cell phones while driving and the production of cell phone records, cites numerous articles on psychological science and visual perception and observation, suggesting that "even the use of a 'hands-free mobile telephone' to engage in a call while operating a motor vehicle, may contribute to causing an accident, and would be relevant to the issue of negligence." Id. at 474.
This Court agrees with plaintiff's counsel that the New York City Taxi and Limousine Commission had in place regulations, banning the use of "a portable or hands-free electronic device" [NYC Taxi & Limousine Commission Rules & Regulations §§2-25(h), 6-16(u)(1), 54-14(e)(1), and 55-14(g)(1); see, Tom Namako, Edmund Demarche, and Katherine Romero, "It's Quiet a Ride: Crackdown on Chatty Hacks," N.Y. Post, Dec. 18, 2009; Marisa Taylor, "New York Cracks Down on Cab Drivers Using Cellphones," Wall St. Journal Blog, Oct. 20, 2009] that were more severe and onerous on drivers of
taxis, limousines, vehicles for hire, and livery cars than on the general pool of New York State motorists (VTL §1225-c(1)(e) & §1225-c(3)(c) (permitting "a hands-free mobile telephone").
The New York City Administrative Code, indeed, has a specific section governing "Passengers' bills of rights." It provides that passengers have a right to "a driver who does not use a cell phone (hand-held or hands free) while driving" taxicabs [NYC Adm. Code §9-537(c)(14)], livery cars [Id., §9-537(d)(10)], and commuter vans [Id., §9-537(e)(11)].
Following the reasoning of Justice Martin E. Ritholtz of this Court, in Morano v. Slattery Skanska, Inc., 18 Misc 3d 464, supra, this Court holds that, under certain circumstances even without relying on the rules and regulations applicable to drivers of taxicabs, livery cars, and commuter vans the use of a hands-free cell phone can constitute a distraction for drivers. The conversation of the motorist, even on a hand-free mobile telephone device or apparatus, could divert the driver's mental focus from watching the road to thinking about the topic of conversation. See, State v. Malone, 2011 WL 2582730, slip op. at 5 [N.J. Super. App. Div. 2011] [per curiam] ["(T)he Legislature recognized that the use of a hands-free wireless telephone would 'reduce' the distractions associated with dialing, not eliminate the distractions associated with dialing."; italics in the original].
Accordingly, as a matter of common law negligence, Mangione, the plaintiff, has presented enough testimony at her deposition about Simbana's conduct while driving to warrant the denial of the motion by defendants Ramabel and Simbana for summary judgment on the issue of liability.
In this regard, plaintiff's request for the production of the cell phone records of defendant Simbana should be granted, as limited to all cell phone records for December 2, 2009, the date of the accident.
The most important issue in this opinion is raised by the motion to dismiss by defendant Jacobs. The plaintiff, Mangione, who previously had been involved in other accidents and personal injury lawsuits, ignored numerous court orders requiring her appearance at Independent Medical Examinations ("IMEs") in this action. The purpose of an IME is to verify a plaintiff's alleged physical injuries and to determine the nature, extent, and cause of any injuries or medical conditions observed.
Specifically, in another action, Susanna Mangione v. Metropolitan Transit Authority Bus Company and Caesar Russo, pending in this Court under index number 20671/2009, and awaiting trial, the plaintiff claimed personal injuries to her back and shoulder the same body parts that plaintiff contends were injured by the accident in the case at bar. In the earlier action under Index Number 20671/2009, plaintiff was a
passenger in a bus on November 17, 2008, that allegedly came to a sudden stop, causing her to fall down. In that case, in two separate decisions, both dated Dec. 2, 2011, and both entered on Dec. 7, 2011, Justice Allan B. Weiss denied a defense motion for summary judgment and denied Mangione's motion to consolidate that case with the instant action. The defendants in the present action contend that they have repeatedly requested the medical records from that earlier action involving Mangione as a rider on a bus, but, to date, they have not been produced, even though Mangione is being represented in both actions by the same counsel.1
On January 31, 2011, counsel for the parties in the case at bar appeared for a preliminary conference, and the undersigned issued an order directing that the plaintiff appear for IMEs within 45 days of her examination before trial [that was held on September 14, 2011]. On October 5, 2011, counsel for all parties in the present case appeared before Justice Ritholtz for a compliance conference. Justice Ritholtz ordered that defendants designate their doctors for the IMEs within 30 days and that the plaintiff appear 30 days thereafter for the physical examination.
BME Gateway, Inc. ("BME Gateway"), a third-party vendor that arranges IME appointments for insurance companies, scheduled the plaintiff to be evaluated on October 27, 2011, at 1:00 P.M. and 1:15 P.M., at a facility in Forest Hills, in Queens County, by an orthopedic surgeon and a neurologist. The plaintiff failed to attend either of those physical examinations. They were adjourned to November 17, 2011, at 12:30 P.M. and 12:45 P.M., at the same facility, for both doctors to conduct the orthopedic and neurological IMEs.
On Nov. 14, 2011, plaintiff's counsel filed a note of issue in this action, attaching a certificate of readiness signed by Sameer Chopra, Esq., of plaintiff's counsel, falsely claiming that "Physical Examinations [were] completed." Mr. Chopra signed the certificate on Nov. 10, 2011. On Nov. 17, 2011, the plaintiff again failed to arrive for her IMEs.
In a commendable effort to avoid unnecessary motion practice, the defendants requested Justice Ritholtz again to hold a conference on the long-awaited IMEs, in addition to other items of discovery that plaintiff failed to provide. Justice Ritholtz held another conference on Jan. 25, 2012, and signed an order that, in pertinent part, stated: "Plaintiff to appear within 30 days of designation. Defendant[s] to designate IME's [sic]
within 14 days. Reports to be exchanged by defendant[s] within 45 days of exam[inations]." The so-ordered stipulation was signed by all counsel, including Mr. Chopra on behalf of the plaintiff, on Jan. 25, 2012.
The defense orthopedic and neurological IMEs were then rescheduled for February 22, 2012. Plaintiff's counsel insists that it called BME Gateway Medical Services to adjourn the IMEs. See affirmation of Alex Nocerino, Esq, dated July 11, 2012, and affidavit of William Rodriguez, a calendar clerk of Chopra & Nocerino, LLP, sworn to on June 20, 2012, alleging that they had conversations with a nonlawyer representative of BME Gateway.
Defense counsel dispute that BME Gateway (1) was ever advised that plaintiff was going to have spinal surgery, (2) had consented to another adjournment of the IMEs so that the plaintiff could have spinal surgery, and (3) was capable of adjourning the long-awaited and repeatedly postponed IMEs in the face of three court orders. Katherine Crooker, a custom service manager, states, in her affidavit sworn to on July 9, 2012, that BME Gateway simply schedules IMEs and thus has no authority to agree to adjournments of IMEs so that a plaintiff could have elective surgery. Ms. Crooker, in fact, states that plaintiff's counsel was informed that GEICO, the insurer, would not consent to the adjournment of the thrice court-ordered IMEs.
BME Gateway, advised by Dr. Thomas Nipper, an orthopedic surgeon, that he could not attend the IMEs on Feb. 22, 2012, adjourned the orthopedic IME to March 7, 2012. Plaintiff, in the meanwhile, had spinal surgery on Feb. 27, 2012. Plaintiff has attached a copy of the report of the operation performed at Winthrop University Hospital, in Mineola, New York, on Feb. 27, 2012. Mangione did not attend either the neurological IME on Feb. 22 or the orthopedic IME on March 7, 2012.
On behalf of the plaintiff, Mr. Nocerino argues that prior surgeries had been performed upon Mangione in 2010 and that four IMEs were conducted. The Court has not been provided relevant information regarding the alleged prior surgeries performed on plaintiff allegedly in 2010, following her accidents in 2008 and 2009. Defense counsel does not address Mr. Nocerino's claims of prior IMEs, but the Court's review of the attachments to Mr. Nocerino's additional submission to the Court suggests that those IMEs dealt only with plaintiff's entitlement to no fault first party benefits. Those IMEs clearly had nothing to do with the IMEs required to determine any claim of "serious injury" under the Insurance Law, since defense counsel in 2011 and 2012 were frustrated in getting IMEs by plaintiff's repeated failure to show up for IMEs.
The defense contention on the motion to dismiss the complaint is that plaintiff's surgery on Feb. 27, 2012, and not going to IMEs prior to the surgery, despite three court orders, constituted the intentional spoliation of evidence warranting the most stringent sanction of dismissal of the plaintiff's complaint.
Spoliation of evidence, in all forms, thwarts the proper functioning of our courts. See, Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1, 8, 954 P2d 511, 515, 74 Cal. Rptr. 2d 248, 252  ["(T)he intentional destruction of evidence should be condemned. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both."]; accord, U.S. Fidelity & Guar. Co. v. American Re-Insurance Co., 93 AD3d 14 [1st Dept. 2012] [quoting approvingly a California trial court decision observing that insurer, concerned with a "litigation crisis," destroyed documents in order "to make it more difficult for insureds to establish coverage."].
The United States Court of Appeals for the Second Circuit, in Byrnie v. Town of Cromwell Board of Education, 243 F3d 93 , explained that spoliation sanctions serve three purposes:
(1) deterring parties from destroying evidence;
(2) placing the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and
(3) restoring the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation.
Byrnie, 243 F.3d at 107.
To ensure that spoliators do not profit from their wrongdoing and to deter other, would-be spoliators from ignoring court orders and subpoenas, the Second Circuit, in Reilly v. Natwest Markets Group, Inc., 181 F3d 253, 267-268 [2nd Cir. 1999], emphasized that federal district courts are empowered with wide discretion, under both inherent powers and Rule 37 of the Federal Rules of Civil Procedure, to craft and fashion, not just one measure, but a panoply of remedial devices to restore the plaintiff to the same position he would have been in, absent the wrongdoing. In Reilly, the Second Circuit directed federal district courts to tailor the spoliation sanctions to the needs of each case, realizing that whether the destruction of evidence occurred as a result of a mistaken mishap or by intentional destruction, the resulting prejudice to the victim is the same: he is hampered, if not crippled, by the spoliation. Reilly v. Natwest Markets Group, Inc., 181 F3d at 267-268.
Earlier this year, in VOOM HD Holdings LLC v. EchoStar Satellite, L.L.C., 93 AD3d 33, 939 NYS2d 321 [1st Dept. 2012] [adopting federal standard], aff'g 2010 WL 8400073, 2010 NY Slip Op 33759(U) & 2010 WL 8435623, 2010 NY Slip Op. 33764(U)
[Sup Ct New York County 2010] [Lowe, J.], the Appellate Division, First Judicial Department, set out to determine the scope of a party's duties in the electronic discovery context, and the appropriate sanction for failure to preserve electronically stored information. The appellate court in VOOM held that the failure of parties to place a "litigation hold" on relevant evidence, was, at a minimum, "grossly negligent." VOOM, 93 AD3d at 48.
The undersigned, in two officially reported decisions, dealt with issue of spoliation of evidence: Savino v. Great Atlantic and Pacific Tea Co., Inc., 22 Misc 3d 792 [Sup Ct Queens County 2008] and Lu Huang v. Di Yuan Karaoke, 28 Misc 3d 920 [Sup Ct Queens County 2010]. In Savino, this Court held that a defendant store keeper was required to turn over an unredacted copy of a video surveillance evidence tape that would be crucial in determining whether the plaintiff feigned her slip-and-fall injury in a supermarket. In Lu Huang v. Di Yuan Karaoke, (28 Misc 3d 920), this Court held that plaintiff's application, by order to show cause, for a copy of respondent's video surveillance tape, together with requests for the full name and address of the security company and the address of its employee security guard or "bouncer," were all justified and proper as part of pre-action discovery. The undersigned granted the request based upon "the demonstrated prejudice by the respondent's cavalier and disingenuous stonewalling," and the possibility that "respondents may be destroying or concealing the potent evidence." This Court stated in Lu Huang that "the principles of justice and fair play that underlie this Court's decision in Savino apply equally to this pre-action discovery matter." Lu Huang, 28 Misc 3d at 921. This Court added: "Any attempt to destroy the video surveillance evidence will be dealt with severely pursuant to this Court's seminal decision in Savino." Id. at 921-922.
None of the parties has cited a case dealing with the issue posed in the present case of whether a surgery, done after plaintiff failed to appear for scheduled IMEs required by successive court orders, constitutes a spoliation of evidence. This Court has thus engaged in its own independent and extensive legal research for any cases in point from any jurisdiction.
The only New York case remotely close is Payano v. Milbrook Properties, Ltd., 39 AD3d 518 , where the Appellate Division, Second Judicial Department, reversing the lower court, refused to presume that the disappearance of magnetic resonance imaging ("MRI") films was the product of plaintiffs' spoliation of evidence. The Appellate Division in Payano noted that the plaintiffs were not responsible for the missing MRI films and plaintiffs were also prejudiced by the films' disappearance. Id. at 519-520. Thus, to preclude the plaintiffs from offering evidence at trial as to the causal relationship between the injured plaintiff's alleged accident and her subsequent back surgery was error.
A persuasive precedent is Clark v. E.I. DuPont de Nemours and Co., 2001 WL 1482831 [Del. Super. 2001] [Peggy L. Ableman, J.], aff'd on the opinion below, 795 A.2d 667 [Table], 2002 WL 392423 [Del. Sup. 2002], cert. denied, 537 US 941 , and subsequent order in Clark v. Corporate Interiors of Delaware, 2004 WL 2419159, slip op. at 1 & n.2 [Del. Super. 2004] [Ableman, J.], aff'd on the opinion below, 871 A.2d 1127 [Table], 2005 WL 277925 [Del. Sup. 2005]. In Clark v. E.I. DuPont de Nemours and Co., 2001 WL 1482831, supra, the plaintiff filed his action in 1997 and, then, in 2001, four years later, and only eight days before a trial that had been scheduled for over a year, underwent elective hip replacement surgery.
The Court in Clark v. E.I. DuPont de Nemours and Co., 2001 WL 1482831, supra, found that the surgery prevented the defendants from conducting "any independent medical evaluation concerning the need for the surgery and/or whether it was related to the alleged incident." Id., slip op. at 1-2. Without mentioning even once the words "to spoil," "despoiled evidence," or "spoliation," the court in Clark dismissed the plaintiff's complaint, finding that the defendants were irreparably injured and without a remedy by the plaintiff's failure to undergo an independent medical evaluation. Superior Court Judge Peggy L. Ableman stated:
…If the elective hip replacement surgery was postponed for a week, it could have also been postponed for two weeks, so as not to interfere with the trial. Moreover, no medical documentation has ever been provided to the Court to support any such sudden necessity for the operation.
The second reason that dismissal is warranted herein is that, by his decision to go forward with surgery when he did, plaintiff has taken affirmative steps to insure that the defendants no longer have the capability of examining his pre-surgery condition in any meaningful way. By doing so, plaintiff has precluded the defendants from adequately preparing any defense to his claims that are now several times higher than they were before the surgery on May 25, 2001. Under these unusual circumstances, the Court is powerless to find an adequate remedy or to impose any sanction that will offset the prejudice to defendants, short of dismissal.
Clark v. E.I. DuPont de Nemours and Co., 2001 WL 1482831, slip op. at 7, supra [italics in the original].
The Supreme Court of Delaware affirmed Judge Ableman expressly on her opinion, and the Supreme Court of the United States denied a writ of certiorari. 795 A.2d
667 [Table], 2002 WL 392423 [Del. Sup. 2002] [affirming for the above-quoted reasons stated by Judge Ableman, on her opinion in 2001 WL 1482831], cert. denied, 537 US 941 . Judge Ableman, in a later opinion in a related action, referred to her earlier opinion regarding the impropriety of the plaintiff's surgery being done without a prior IME, and the Supreme Court of Delaware again affirmed Judge Ableman expressly on her opinion. Clark v. Corporate Interiors of Delaware, 2004 WL 2419159, slip op. at 1 & n.2 [Del. Super. 2004] [Ableman, J.] [reiterating the prior order and describing that "(t)he elective nature of this surgery and Clark's reasons for choosing to do [it] at that particular time" reflected the plaintiff's "contempt for the judicial process, [whereby plaintiff] Clark earned himself a dismissal in that case."], aff'd on the opinion below, 871 A.2d 1127 [Table], 2005 WL 277925 [Del. Sup. 2005]
Thus, even though the words "spoliation of evidence," "spoliator," "despoiled evidence," or "to spoil" were not ever used by the court in Clark v. E.I. DuPont de Nemours and Co., 2001 WL 1482831, aff'd on the opinion below, 795 A.2d 667 [Table], 2002 WL 392423, cert. denied, 537 US 941, supra, the defendants' motion to dismiss the complaint in that case was granted, and affirmed expressly on the lower court's opinion, because the plaintiff proceeded to have elective surgery without affording the defendants IMEs.
Other courts, however, have rejected the proposition that a plaintiff's surgery, without permitting an independent medical examination, be considered a form of spoliation of evidence. In Rebardi v. Central Boat Rentals, Inc., 2007 WL 2993867 [W.D. La. 2007], for example, the defendant sought spoliation sanctions. The federal magistrate judge refused to dismiss an action because the plaintiff did not attend scheduled supplemental IMEs. The magistrate judge did allow, however, for the possibility of recommending to the federal district court judge that an appropriate adverse inference and instruction be given to the jury against the spoliator. The magistrate judge said that the evidence was insufficient to show bad faith, wilful behavior, or intentional and contumacious conduct to warrant dismissal. Id., slip op. at 33.
In Menges v. Cliffs Drilling Co., 2000 WL 765082 [E.D. La. 2000], the plaintiff underwent surgery before he could be examined by defense-designated doctors at IMEs. The federal district court judge rejected all spoliation sanctions, stating that no case has been cited to the court equating breach of a duty to attend an IME as a spoliation of evidence. Id., slip op. at 3. The court noted that plaintiff had given to defendant "full access to his medical records, again before surgery, and defendant therefore had ample opportunity to investigate plaintiff's condition and to require an IME before plaintiff underwent surgery." Id. In the present case, aside from repeatedly securing court orders requiring IMEs, the defendants have complained that plaintiff's counsel has not made available all medical records, especially on the other action pending in this Court, pertaining to Mangione's fall on a bus, even though plaintiff is represented by the same counsel in both cases.
The same judge in Menges, [now Chief] District Judge Sarah S. Vance, in another action, Savarese v. Pearl River Navigation, Inc., 2010 WL 1817758 [E.D. La. 2010], again rejected spoliation sanctions against a plaintiff who underwent neck surgery, stating that the defendant "had an opportunity to conduct an IME before [plaintiff's] surgery, and chose not to do so." Id., slip op. at 4. The defendant, instead of making a timely request for an IME, chose to conduct depositions and review medical records, instead of scheduling an IME. Id., slip op. at 5.
In Collongues v. State Farm Automobile Insurance Co., 2010 WL 103878 [E.D. La. 2010], another judge of that court, rejected the imposition of any spoliation sanctions based on a plaintiff's neck surgery before an IME could be done. The court found that there was no evidence of intentional spoliation. The court also found that the defendant had ample time to schedule an IME, but did not do so.
Similarly, in Crooks v. Coregis Insurance Co., 943 So.2d 649 [La. App. 3rd Cir.], cert. denied, 949 So. 2d 419 , the state court refused any spoliation sanctions, holding that there was no proof that the plaintiff did not comply with court orders and acted deliberately and in bad faith to deprive the defendants of a court ordered medical examination.
In Manpower, Inc. v. Brawdy, 62 P3d 391 [Okl. Ct. Civ. App. 2002], the court expressly refused to "equate seeking and obtaining of medical treatment to spoliation of evidence." Id. at 392-393. The court thus held that a worker's compensation claimant's back surgery could not constitute spoliation of evidence and added that no case or authority has been cited "nor has our research found any case, in which the seeking and receiving of medical treatment has been deemed to be a wrongful destruction of evidence." Id. at 392 [footnote reference omitted]. The Oklahoma appellate court in Manpower, in its above-cited decision of August 9, 2002, was thus evidently unaware of Judge Ableman's 2001 decision in Clark, 2001 WL 1482831, that was affirmed by the Supreme Court of Delaware on March 6, 2002, on Judge Ableman's opinion, with rehearing denied on May 2, 2002.2
Expressly following the holding in Manpower, Inc. v. Brawdy, supra, the court in Janus v. Twerskoi, 2009 WL 7433856 [Colo. Dist. Ct. 2009], also refused to equate the obtaining of medical treatment as a spoliation of evidence. Id., points 10-11. The Colorado state court in Janus v. Twerskoi referred, without citation, to "the old trial
lawyers' maxim that 'litigation cannot dictate medical treatment.'" Id., point 11. In Janus v. Twerskoi, the plaintiff underwent restorative dental surgery without permitting the defendant the opportunity to film the plaintiff's mouth prior to surgery and to see how the alleged dental malpractice affected the plaintiff. Id., point 8. The court, although not calling the dental surgery a "spoliation," decided to take "guidance from 'spoliation' cases" and called for the parties to do further factual briefing that may aid the Court in determining whether an adverse inference and instruction or a lesser spoliation sanction was appropriate. Id., points 18-25.
Although the court's opinion in Clark v. E.I. DuPont de Nemours and Co., 2001 WL 1482831, aff'd on the opinion below, 795 A.2d 667 [Table], 2002 WL 392423, cert. denied, 537 US 941, supra, did not mention "spoliation of evidence" or refer to that concept by name, the undersigned agrees with its reasoning, analysis, and holding. The undersigned, in the present case, thus holds that a plaintiff undergoing non-emergency and non-life-threatening surgery, thereby depriving the defendants of a court-ordered IME, can and does constitute the spoliation of evidence.
Not once, in any of the submissions submitted by plaintiff's counsel is there any explanation or discussion of the sudden urgency to conduct spinal surgery on Feb. 27, 2012, when the accident in this case occurred in 2009. Plaintiff has not provided her affidavit, and no physician affirmations were submitted to this Court to explain the urgent need to operate upon the plaintiff. Moreover, no explanation is offered by the plaintiff or her lawyers or doctors especially in the face of three court orders mandating IMEs, one by the undersigned and two orders by Justice Ritholtz discussing why such surgery, if allegedly necessary, could not wait a week, from Feb. 27, 2012, to March 7, 2012, so that the IMEs could be performed.
Mangione alleges, in her other pending action of Susanna Mangione v. Metropolitan Transit Authority Bus Company and Caesar Russo, under index number 20671/2009, that she fell in a bus in 2008. In this action, plaintiff contends that her earlier sustained physical injuries were exacerbated and aggravated by this accident. The two accidents occurred in 2008 and 2009. This Court issued three orders requiring IMEs in 2011-2012, and the plaintiff repeatedly failed to show up at the IMEs. No explanation has been given by the plaintiff, her lawyers, or her doctors, on this motion to dismiss, of why the plaintiff had to have surgery on Feb. 27, 2012, and why that surgery could not be delayed for a week, until after the IMEs could be conducted on March 7, 2012. Their silence on these dispositive points speaks volumes.
No reasonable person would deprive a plaintiff of a life-saving surgery or any operation that would curb intense pain and alleviate injury. Plaintiff has not demonstrated anything or proffered any evidence on this issue. Even assuming arguendo that plaintiff needed such vital or life-saving surgery immediately and that defense counsel was unreasonably withholding its consent, the plaintiff's counsel should have
arranged with defense counsel for an immediate telephone conference with either Justice Ritholtz, who had signed and issued the Court's order of Jan. 25, 2012, or with the undersigned. Plaintiff also could have moved for the surgery by an order to show cause. Plaintiff took neither of these reasonable measures. Plaintiff's counsel was well-aware that, in the absence of a compelling reason for immediate surgery, the Court would have required Mangione to appear at the IMEs before any surgery.
Plaintiff's counsel, instead, dealt only with the defendants' medical scheduling service whose sole function was to schedule the requested IMEs and had no other responsibilities, legal or otherwise, with regard to this action. BME Gateway had no right or interest to consent to the plaintiff having her surgery before the IMEs could be done.
In Allstate Social Work & Psychological Services, PLLC v. Utica Mutual Insurance Co., 30 Misc 3d 90 [App T. 2nd Dept. 2011], the court referred to a medical consulting firm that handled and scheduling IMEs on behalf of defendants. However, under the facts of this case, where, on Jan. 25, 2012, Justice Ritholtz signed a third court order mandating plaintiff's appearance at IMEs, for the plaintiff's counsel to bypass both Justice Ritholtz and the undersigned, as the assigned IAS Justice, and instead attempt to secure another adjournment of the IME by going to the scheduling service for the defendants was improper, manipulative, and deceitful.
BME Gateway, at any rate, disputes that it consented to an adjournment so that the plaintiff could have surgery, without advising its principals, and it makes no sense for BME Gateway to have consented to such an adjournment, in the absence of a demonstrated, acute need for surgical intervention. Certainly from the date of Jan. 25, 2012, where Justice Ritholtz so-ordered a stipulation governing further discovery and specifically discussed the scheduling of the IMEs, that were discussed in two prior court orders, plaintiff's counsel should have been dealing with Justice Ritholtz or the undersigned, upon notice to all defense counsel and not intentionally subverting the process and the three court orders by going to the service hired by defendants to schedule IMEs. Instead, plaintiff's counsel, who, in November, 2011, submitted and filed with the Court a note of issue accompanied by a certificate of readiness falsely stating that all physical examinations were "completed," decided to avoid dealing with the Court.
Mr. Chopra, in one of the submissions to this Court, says that Mangione was in a coma for several days following her surgery. Even if true, the fact that Mangione may have been in a post-surgical coma for a few days does not support, countenance, or bolster the immediate rush for an operation, where three court orders directed attendance at IMEs.
This Court concludes that Mangione's spinal surgery on Feb. 27, 2012, was knowingly scheduled by the plaintiff and her counsel to frustrate the court-ordered IMEs, especially the order of Justice Ritholtz of Jan. 25, 2012, and that the aforementioned
operation constituted a spoliation of evidence.
In deciding on an appropriate remedy and spoliation sanction, a court, considering all the circumstances of a particular case, is vested with broad discretion and, if appropriate, is not constrained to impose the least onerous sanction. See, Chrysler Corp. v. Carey, 186 F.3d 1016, 1022 [8th Cir. 1999]; American Bldrs. & Contrs. Supply Co., Inc. v. Roofers Mart, Inc., 2012 WL 2992627, slip op. at 5 [E.D. Mo. 2012]. The decision to apply spoliation sanctions should take a case-by-case approach. Chin v. Port Auth. of New York & New Jersey, ____ F3d ____, 2012 WL 2760776, slip op. at 21 [2nd Cir. 2012].
Although not restricted to the least onerous sanction, in order not to deprive a party of his or her day in court, a court should consider whether the damage and prejudice to a victim of spoliation are irreparable or may be remedied by the imposition of lesser spoliation sanctions, short of outright dismissal of a pleading. See, Chrysler Corp. v. Carey, 186 F.3d at 1020, supra; Process Controls Intern., Inc. v. Emerson Process Mgt., 2011 WL 5006220, slip op. at 7 [E.D. Mo. 2011]. In the calculus of appropriate sanctions, a court must also consider, as discussed above, deterring other would-be spoliators; otherwise, a judicial opinion that simply slaps a wayward litigant on the wrist for disobeying three court orders might embolden and reward miscreants who would destroy, rather than preserve and furnish, an important piece of evidence. A court should not give its imprimatur to an intentional destruction of evidence and thwarting of court orders, if it intends to stem a contagion of spoliation.
The particular sanction must be tailored for the factual circumstance and procedural posture of the case, the type of spoliation involved, the degree of prejudice, and the level of culpability of the litigant and his, her, or its counsel. The Court must also calculate whether the integrity of court orders and other court processes, such as subpoenas and other litigation notices vital to the functioning of the courts, are at issue and the type, degree, and intensity of efforts of a litigant to put the potential spoliator on notice of the item sought to be preserved and produced, and its importance to any criminal or civil investigation and litigation.
The issue of a party's intent permeates the common law, and conduct is deemed more serious when committed with the intention to destroy and cause harm. As Supreme Court Justice Oliver Wendell Holmes, Jr., stated, in his treatise The Common Law: "Even a dog distinguishes between being stumbled over and being kicked." Holmes, The Common Law 3 ; see, Bazley v. Tortorich, 397 So. 2d 475, 480 [La. 1981].
Any risk in devising the appropriate sanction should be weighted against the spoliator of evidence, who may have calculated that the destruction and spoliation of evidence is a better bet than any mild sanction that a court might impose. See, Byrnie v. Town of Cromwell Bd. of Educ., 243 F3d 93, 107, supra. In this connection, shortly
before his death, writing on a different issue, Mr. Chief Justice Harlan F. Stone stated for the majority of the United States Supreme Court: "The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created." Bigelow v. RKO Radio Pictures, 327 US 251, 265 (1946).
In the present case, the prejudice to the defendants is extensive since, Mangione seeks damages based on the exacerbation and aggravation of her earlier injuries, resulting allegedly from the fall in a bus in 2008 the subject of an earlier action. Thus, by undergoing her surgery in Feb. 27, 2012, and not submitting to the thrice court-ordered IMEs, Mangione and her counsel have made it impossible for defendants to uncover any evidence of causation and of defending against her claims.
The Appellate Division, Second Judicial Department, has held that pleadings will be struck even if the destruction of the evidence occurred before the spoliator was named a party to an action, especially where the intentional destruction severely hampers the other party from making his case. See, e.g., Ingoglia v. Barnes & Noble College Booksellers, Inc., 48 AD3d 636 [2nd Dept. 2009]; Baglio v. St. John's Queens Hosp., 303 AD2d 341 [2nd Dept.2003]; New York Central Mut. Fire Ins. Co. v. Turnerson's Electric, Inc., 280 AD2d 652 [2nd Dept. 2001]; Di Domenico v. C & S Aeromatik Supplies, 252 AD2d 41 [2nd Dept. 1998]; accord, Byrd v. Alpha Alliance Ins. Corp., 2012 WL 360033, slip op. at 6-8 [M.D. Tenn. 2012] [dismissing action for spoliation of evidence; "While it is conceivable that an appropriate instruction to the jury could level the evidentiary playing field between the parties, the court believes that a harsher sanction is warranted in light of the plaintiff's egregious conduct. Indeed, a less severe sanction may not effectively deter would-be spoliators from engaging in similar conduct in the future."]; Gutman v. Klein, 2011 WL 683939 [EDNY 2011] [Cogan, D.J.] [ordering a default judgment for the plaintiff based upon defendant's spoliation of computer evidence]; Ashton v. Knight Transp., Inc., 772 F Supp 2d 772 [N.D. Tex. 2011] [striking of defense pleadings and defenses]; Veolia Transp. Servs., Inc. v. Evanson, 2011 WL 5909917 [D. Ariz. 2011] [default judgment]; Ameriwood Industries, Inc v. Liberman, 2011 WL 5110313 [E.D. Mo. 2007] [court granted plaintiff partial default judgment because defendant destroyed evidence by installing a scrubbing software on its computer]); Williams v. Russ, 167 Cal. App. 4th 1215, 1223, 84 Cal. Rptr. 3d 813, 820 , review denied [Jan. 21, 2009] ["A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence."]; Antonucci v. Home Depot U.S.A., Inc., 34 Misc 3d 1212(A), 2012 WL 163829, 2012 NY Slip Op 50061(U) [Sup Ct Dutchess County 2012] [upon defendant's motion, court dismissed complaint for spoliation of evidence].
Other measures, short of the terminating sanction of dismissing a complaint or striking an answer, discussed immediately above, designed to punish those litigants and
their counsel who engage in spoliation of evidence, include3:
1. The giving of an adverse inference jury instruction. See, e.g., Byrnie v. Town of Cromwell Bd. of Educ., 243 F3d at 110, supra; Reilly v. Natwest Markets Group, Inc., 181 F3d 253, 267-268 [2nd Cir. 1999]; Kravtsov v. Town of Greenburgh, 2012 WL 2719663 [SDNY 2012] [Seibel, D.J.] [court will give adverse inference instruction based on destruction of videotape, together with all costs plaintiff incurred by the videotape's destruction]; Aviva U.S.A. Corp. v. Vazirani, 2012 WL 71020, slip op. at 8 [D. Ariz. 2012] ["The Court finds adverse inference instructions to be warranted to the extent Defendants' spoliation affects Plaintiffs' ability to prove their claims."]; Apple Inc. v. Samsung Electronics Co., Ltd., 2012 WL 3042943, slip op. at 8 [N.D. Cal. 2012] [Grewal, M.J.] [adverse inference jury instruction, set forth in decision, was appropriate where defendant did not disable a company-wide "auto-delete" function of its default email system; "In effect, Samsung kept the shredder on long after it should have known about this litigation, and simply trusted its custodial employees to save relevant evidence from it."]; Jung Kyung v. Neiman Marcus Group, Inc., 2012 WL 2865778 [N.J. Super. App. Div. 2012] [adverse inference for defendant's cherry-picking in selectively destroying segments of a videotape]; Alleva v. United Parcel Service, Inc., 96 AD3d 563 [1st Dept. 2012] [adverse inference, and not striking of answer, was proper spoliation sanction, where the destroyed file on the employee "does not constitute the sole source of the information and the sole means by which plaintiff can establish his case"]; Mendez v. La Guacatala, Inc., 95 AD3d 1084 [2nd Dept. 2012] [destruction of videotape warranted adverse or negative inference instruction, rather than striking of answer]; Village of Port Chester v. Bologna, 95 AD3d 895 [2nd Dept. 2012]; Lentz v. Nic's Gym, Inc., 90 AD3d 618 [2nd Dept. 2011].
2. Precluding the spoliator from offering evidence or the principal of the spoliator from testifying. See, e.g., FatPipe Networks India Ltd. v. X Roads Networks, Inc., 2012 WL 192792 [D. Utah 2012] [precluding the spoliating party from introducing evidence]; United States v. Yevakpor, 419 F. Supp. 2d 242, 247 & 251 [EDNY 2006] [government
deliberately preserved only three segments of a video surveillance tape, destroying the remaining 87.5 percent of the tape, while knowing that the subject of the video was facing criminal proceedings; court barred use of any portion of the tape as a spoliation sanction against the government]; Multiservice Jt. Venture, LLC v. United States, 85 Fed. Cl. 106 [Fed. Cl. 2008] [principal of spoliator prevented from testifying in addition to other spoliation sanctions for significant alteration to exhibit], aff'd, 374 Fed. Appx. 363 [Fed. Cir. 2011] [per curiam; unpublished opinion]; Commonwealth v. Vlastos, 26 Mass. L. Rptr. 518, 2010 WL 986507 [Mass. Super. Ct. 2010].
3. Precluding the spoliator from introducing any expert testimony or report to explain the destruction of evidence. See, e.g., VOOM HD Holdings LLC v. EchoStar Satellite, L.L.C., 93 AD3d 33 [1st Dept. 2012] [affirming, in all respects, decision of Justice Lowe, in Supreme Court, New York County, from calling non-party expert witness at trial and from introducing his expert report; appellate court found that the destruction of emails for a four-month period, when a "litigation hold" should have been placed on electronically stored information, was, at a minimum, "grossly negligent"], aff'g 2010 WL 8400073, 2010 NY Slip Op 33759(U) & 2010 WL 8435623, 2010 NY Slip Op. 33764(U) [Sup Ct New York County 2010] [Lowe, J.];
4. Barring cross-examination at trial. See, e.g., McCargo v. Texas Roadhouse, Inc., 2011 WL 1638992, slip op. at 9 & 11 [D. Colo. 2011] [defendant found "highly culpable" in destruction of critical portions of videotape; court bars defendant, as a spoliation sanction, from cross-examining plaintiff's witnesses at trial regarding certain events, in addition to attorneys fees and costs];
5. Burden-shifting at trial. See, e.g., Farella v. City of New York, 323 Fed. Appx. 13, 15 [2nd Cir. 2009] [burden-shifting might be a spoliation sanction in an appropriate case]; Williams v. Russ, 167 Cal. App. 4th 1215, 1226-1227, 84 Cal. Rptr. 3d 813, 822-823 , review denied [Jan. 21, 2009] [court, in shifting the burden based on the intentional spoliation of evidence, stated: "(B)urden shifting is proper when one party's wrongdoing makes it practically impossible for the plaintiff to prove its case."]; and
6. Permitting a victim of spoliation who has amassed other proof to survive the spoliator's motion for summary judgment. See, Wood v. Pittsford Central School Dist., 2008 WL 5120494 [2nd Cir. 2008] [reversing lower court, Second Circuit held that intentional destruction of relevant evidence warranted that defense motion for summary judgment be denied]; Byrnie v. Town of Cromwell Bd. of Educ., 243 F3d 93 [2nd Cir. 2001] [defendants' spoliation of evidence was adequate grounds for denying their summary judgment motion based on qualified immunity]; Kronisch v. United States, 150 F3d 112, 125-128 [2nd Cir. 1998] [same; "(A)t the margin, where the innocent party has
produced some (not insubstantial) evidence in support of his claim, the intentional destruction of relevant evidence by the opposing party may push a claim that might not otherwise survive summary judgment over the line."; id. at 128], overruled on other grounds by Rotella v. Wood, 528 US 549 ); Kravtsov v. Town of Greenburgh, 2012 WL 2719663, supra; Aviva U.S.A. Corp. v. Vazirani, 2012 WL 71020, slip op. at 8, supra ["If Plaintiffs believe that Defendants' spoliation affects their ability to dispute summary judgment, Plaintiffs may propose an appropriate adverse inference in response to any motion for summary judgment."]; Burgos v. Satiety, Inc., 2011 WL 6936348, slip op. at 3 [EDNY 2011] [Gleeson, D.J.]; Volcan Group, Inc. v. T-Mobile USA, Inc., 2011 WL 6141000 [W.D. Wash. 2011] [striking all motions other than the spoliation motion and staying all proceedings, recognizing that the remedies for eviscerating a party's case takes precedence over any other motion]; Nicholson v. Board of Trustees for the Connecticut State Univ. Sys., 2011 WL 4072685 [D. Conn. 2011] [dispositive motion by defendants for dismissal or summary judgment would be denied as a sanction for spoliation].
In the case at bar, this Court, reflecting on all of the facts, including the apparent intent of the plaintiff and her counsel, the issuance of three court orders not obeyed by plaintiff, and weighing the severe, irreparable prejudice to the defendants, decides that the only effective spoliation sanction is a terminating one: dismissal of Mangione's complaint. See, Clark v. E.I. DuPont de Nemours and Co., 2001 WL 1482831, aff'd on the opinion below, 795 A.2d 667 [Table], 2002 WL 392423, cert. denied, 537 US 941, supra.
The Court does not consider the alternative sanctions appropriate to the particular facts of this case or efficacious to remedy the prejudice sustained by the defendants. Considering the irreparable prejudice to defendants of the spoliation, where Mangione's surgery has eviscerated the means of defense doctors and lawyers of tracing the causal connection of Mangione's ailments to the most recent accident, and the intentional thwarting of three court orders, dismissal is the appropriate sanction.
Especially in the present action, the court-ordered IMEs were of crucial importance for a jury to determine whether the plaintiff's present injuries were causally connected to the accident in the taxi in 2009, as opposed to that of her fall in the bus in 2008 at issue in another action pending in this Court, and whether the 2009 taxi accident exacerbated and aggravated the earlier injuries. Plaintiff and her counsel, however, deprived the jury and the Court of such evidence by not attending the IMEs.
The fact that plaintiff, in opposition to the motion, offers the surgical report of the operation on Feb. 27, 2012, does not reduce the prejudice sustained by the defendants.
In Bermel v. Dagostino, 50 AD3d 303 [1st Dept. 2008], the Appellate Division ordered a reluctant and uncooperative plaintiff to attend IMEs. In the case at bar, this Court, in fact, issued not only one but three such orders. The issues involved in this case have been in front of three Justices of this Court: Justice Weiss, Justice Ritholtz, and the undersigned. Supreme Court Justice Louis D. Brandeis decried impotent, toothless, paper tigers in the law. "The disgrace that has come to the law, the discredit, the disrespect which has come to the law, is because it is inefficient, and because we make rules and we do not provide any machinery for enforcing them." The Social and Economic Views of Mr. Justice Brandeis, at 402 [Alfred Leif ed. Vanguard Press, Inc., 1930] [quoting excerpts of Brandeis's testimony on "Price and Business Incentive" before a United States House of Representatives Subcommittee on May 15, 1912], quoted in The Words of Justice Brandeis, at 120 [Solomon Goldman ed. Henry Schuman, Inc., 1953].
This Court believes that court orders must be defended. See, e.g., Coley v. Baez, 30 Misc 3d 1208(A), 2011 WL 66043, 2011 NY Slip Op 50016(U) [Sup Ct Queens County 2011] [undersigned struck defendant's answer for failing to comply with multiple court orders mandating his examination before trial, despite defense counsel pleas that the defendant had allegedly been diagnosed with Stage IV cancer]. The consequence of not punishing those who ignore state court orders is to foster the perception that such orders are not mandatory directions, but merely precatory guidelines and suggestions, to be altered by the litigants and their lawyers at whim, with little worry about reprisal.
In Mendez v. La Guacatala, Inc., 95 AD3d 1084, supra, the Appellate Division, Second Judicial Department held that the IAS Court was "overly harsh" in striking an answer for a defendant's destruction of a videotape, and that the better sanction was that of ordering an adverse, negative inference at trial. That decision, not cited by any of the litigants in this action, is distinguishable. In Mendez, the integrity of court orders or court processes, such as subpoenas, subpoenas duces tecum, or other notices fundamental to the operation of the courts was not at stake. Also, in Mendez, the plaintiff's sole attempt to obtain a videotape that recorded an assault was his lawyer's one letter, sent five days after the incident, written in English, to the owner of the bar who spoke and understood only Spanish and who was not a lawyer. The facts of Mendez are thus distinguishable, from the present case, where this Court issued three orders, of which plaintiff and her counsel were aware, mandating the orthopedic and neurological IMEs, and the defendants properly and assertively sought plaintiff's attendance at physical examinations.
In Clark v. E.I. DuPont de Nemours and Co., 2001 WL 1482831 [Ableman, J.], aff'd on the opinion below, 795 A.2d 667 [Table], 2002 WL 392423, cert. denied, 537 US 941, supra, discussed above, in dismissing the plaintiff's complaint with prejudice for not
attending IMEs and undergoing surgery, the court commented:
If plaintiff has chosen to join his attorney by contributing to this complicity through dishonesty, then he has done so at his own peril. And, if he was not made fully aware of the consequences of his decision to participate in such a scheme, then that becomes a matter strictly between him and his counsel, regardless of the existence or non-existence of malpractice coverage. What is most clear is that the defendants should not be required to continue to defend plaintiff's claims under these circumstances.
Clark v. E.I. DuPont de Nemours and Co., 2001 WL 1482831, slip op. at 8, supra.
This Court echoes those sentiments voiced by Judge Ableman in Clark. In the present case, Mangione has had her day in court, or, more appropriately, "at least a full opportunity to have [her] day in court." Clark v. E.I. DuPont de Nemours and Co., 2001 WL 1482831, slip op. at 7, supra.
This Court thus orders:
1. The defense motion by defendants Ramabel and Simbana for summary judgment only on the issue of liability is denied;
2. The motion to dismiss the complaint by defendant Jacobs for spoliation of evidence is granted, and the complaint is dismissed as to all defendants;
3. The plaintiff's request for the cell phone records of defendant Simbana is denied as moot; and
4. The other branches of the defense discovery motion seeking other items of discovery is also denied as moot.
The foregoing constitutes the decision, opinion, and order of the Court.
1. On July 23, 2012, in Mangione v. Metropolitan Transit Authority Bus Company and Caesar Russo, under index number 20671/2009, in the action concerning Mangione as a bus passenger, Dario Perez, Esq., of the law firm of LaRock & Perez, LLP, filed a notice of appearance as trial counsel to Chopra & Nocerino, LLP, attorneys of record for plaintiff. In that action, the Trial Scheduling Part, on July 24, 2012, vacated the plaintiff's note of issue.
2. The failure of the Oklahoma appellate court in Manpower to discover the Clark opinion is probably attributable to the term "spoliation" not being included by Judge Ableman in the court's opinion in Clark, thereby making discovery of the Clark opinion difficult since legal researchers, using electronic legal research web cites, were most likely seeking cases of an operation or surgery being termed a "spoliation."
3. The list set forth above of other spoliation sanctions is not intended to be allencompassing. Courts should be free to devise remedies to meet a spoliator's inventiveness. Thus, depending on the factual context of a case, other spoliation sanctions, not discussed in the text above, would include granting the moving party a default judgment, the retention of forensic experts at the spoliator's expense, the imposition of attorney fees and costs for all hours needed to be spent in, not only making a spoliation sanctions motion, but in attending depositions, hiring expert witnesses, etc., in order to overcome the effect of the spoliation, to whatever degree possible, when the case is presented to the jury or trier of fact. The sanction should be sufficient to remedy the prejudice caused to the moving party, i.e., to restore "the lack of integrity in the case being presented to the jury." See, Chrysler Corp. v. Carey, 186 F.3d at 1022, supra.