Evidence destroyed? Do I still have a case?

What happens when evidence is destroyed in a case?

Spoliation of Evidence: what is it and what can you do about it?

Mark Perenich is a personal injury lawyer in Clearwater he has more than 30 years experience with various cases from Car accidents to Medical malpractice.

What is ‘spoliation’ of evidence?

Spoliation is the alteration, destruction or loss of evidence which is involved in litigation.

What example can be given of spoliation of evidence?

A creditor who is suing for the payment of a sum of money on a contract has in his safekeeping the only copy of the contract which was signed by the debtor. If during discovery or litigation the debtor’s lawyer borrows the only signed copy of the contract and loses it when his briefcase is taken by a mugger, there is spoliation of evidence. If the office of the debtor’s lawyer burned down to the ground, the contract is destroyed by fire; there is also spoliation of evidence. If the contract which was in the office safe was not destroyed in the fire but the ink was smudged due to water damage so that the contract’s contents are illegible, then there is also spoliation of evidence as it was altered.

What is the effect of spoliation of evidence?

When an object which is supposed to be presented as evidence is spoliated it is not only destroyed, altered or lost, it becomes unavailable for a party to use to prove his claims. Depending upon the importance of the evidence to the litigation and depending upon the good or bad faith of the party who lost it, the party who was disadvantaged by the loss, alteration or destruction of the evidence is given the recourse of suing the spoliator – he may also be sanctioned by the court.

Is the loss, alteration or destruction of all kinds of evidence sanctioned?

No, the evidence must be key evidence and it must be essential to the subject of the litigation. In the example above, the contract is a key piece of evidence and essential to prove the creditor’s claims. The creditor is disadvantaged because the contract which was reduced to writing is the best evidence of the particulars of the agreement between him and the debtor. The signature of the debtor is the best evidence that he has agreed to be bound by the agreement. Unless the creditor can prove the contents of the agreement through a photocopy or by an exchange of letters or emails between the creditor and the debtor, he will not be able to prove his claims.

Wrongful Death Stautes

What kinds of sanctions can be imposed on the spoliator?

In the example above, the debtor may claim that sum of money the creditor was suing for should not be paid as he had not delivered the goods in exchange for the sum of money. The pleadings or documents filed in court by the debtor to prove his alternative defense of non-delivery of goods may be stricken from the record.

If the debtor filed a counterclaim in damages against the creditor, his counter claim may be dismissed. If the debtor assailed the genuineness of his signature on the document and presented the testimony of a handwriting expert, the expert testimony based upon the missing or destroyed evidence may be stricken from the records. The debtor may be declared to be in default and will therefore lose his right to present his own evidence. Or, an evidentiary presumption may rise against him.

What happens if the spoliation is inadvertent or accidental?

In determining the sanction to be imposed, the court takes into consideration not only the importance of the evidence to the subject of the litigation but also the motives of the spoliator. Bad faith is when the party deliberately destroyed or altered the evidence to deprive the opposing party of his right to prove his claim.

In the example above, the debtor’s lawyer lost the document because he was mugged and the contents of his entire briefcase was taken by the mugger. Unless the story of the mugger was fabricated, it cannot be said that the loss of the copy of the contract was intentional, deliberate or calculated to deprive the creditor of his just claims. There can be no bad faith attributable to the debtor’s lawyer.

What are evidentiary presumptions and how do they work as sanctions?

There is a saying that evidence withheld is presumed to be unfavorable if produced. That is to say when bad faith attended the loss, destruction or alteration of an essential piece of evidence, the court will deem the loss, destruction or alteration of the evidence to have been accomplished because it was unfavorable to the spoliator.

In the example above, if bad faith on the part of the debtor or the lawyer is shown, the court will deem that the debtor or lawyer destroyed, lost or altered the contract because if it had been produced in court, it will be adverse evidence against the debtor.

Why is spoliation sanctioned?

Imposing sanctions on the spoliation of evidence in bad faith maintains the integrity of the court system. If such acts were not sanctioned, any person can defeat claims against him by simply destroying evidence. Also, the court has an interest in seeing that evidence is preserved because courts cannot decide cases if evidence goes missing or is destroyed. Missing evidence delays the disposition of cases by the court.

In the example above, lawyers are officers of the court and they have a duty and accountability before the court to maintain the integrity of the legal processes. They are supposed to maintain fair play in their dealings especially in keeping documentary evidence safe.

If you have any questions about this or any personal injury case please contact Mark at 727-386-9677

Hiring a Medical Malpractice Lawyer Tampa

After a recent conversation with a prospective client I thought I would go through some of the benefits of hiring a medical malpractice attorney

Benefits of a Medical Malpractice Lawyer

The medical world doesn’t always get it right. It happens a great deal of the time, but there are times when you will come out of a procedure, or diagnosis and something has gone awry. In those times, you or someone you know can feel helpless, without assistance. It’s hard to deal with problems associated to the medical world, which is why medical malpractice lawsuits are filed. If you have ever wanted to investigate this, or feel that you’ve been a victim, all you need to do is contact a medical malpractice lawyer. This may not be the first thing that comes to mind at first, but it will definitely be clear, when you ascertain the benefits involved.

 

Doctor

Explanation of Your Rights

When you go into a hospital or any sort of medical facility, you are not told all your rights. Patients have rights that are sometimes hidden in fine print (normally and arbitration agreement), and long formatted texts. You may be rushed through signing paperwork so that a doctor can get to work helping you, or any number of reasons. When you visit a lawyer, however, they will sit down with you and explain the rights that you have as a patient and even talk about what may have gone wrong. If your rights have been violated in any way, you will have a case, and that could help offset the costs of repair, and even pay you for damages after the fact.

A malpractice attorney spends their lifetime trying to help people that have become victims of the medical world. You may find this to be a bit scary at first, but it’s absolutely something that you need to understand on a grand scale. If anything goes awry while in surgery, or even when getting a vaccination, or blood drawn, you are to be cared for, and if insurance companies, and doctors don’t listen, you’ll have no choice but to ask for help from someone that will listen, an attorney.

Alleviating Problems

Millions of people end up losing their jobs, or having a pile up of bills start to show up on their doorstep, and it’s not an easy thing to get out of. No matter how hard you fight to avoid this issue, you may end up feeling sick, or not getting back on your feet properly. When these things happen, you absolutely have the opportunity to get help, and legal action can be taken. Legal actions don’t always mean that you get rich, but rather, your bills and your work life can be restored. You could even get a second opinion, or a corrective procedure done to alleviate the issue. Medical malpractice is a serious issue and something that should not be glanced over.

If you feel that you or someone you know is a victim of this problem, make sure that you seek out a little bit of help. Without the helping hands of a legal professional, you will not be able to overcome the hurdles that are thrown at you. Take into account the above and move forward with relative ease.

Hiring someone with experience:

Mark Perenich has 30 years experience, and has successfully handle numerous medical malpractice cases despite the medial malpractice caps law.

If you need a medical malpractice lawyer please call Mark Perenich today 727-386-9677

The darkside of anti-inflamatory drugs

Mark Perenich products liability medical negligent lawyer.

Below is an article written by Tim Perenich, he is completing his final year of chiropractic education, and he wanted to share some information about NSAID’s Non-Steroidal Anti-Inflammatory Drugs.  I’m not a physician I do not suggest you discard medical advice, this is only a presentation on the opposing view of the discussion.   If you have a question about your medical treatment, please call your doctor.  If you believe that you or a loved one have been injured as a result of a drug, please contact me ASAP.

727-386-9677

 “Take Two and Call me in the Morning…?”

Doctor

It has almost become cliché in healthcare to treat all minor complaints and even some major ones with aspirin. Society is constantly bombarded with messages through the mainstream media and a pro-drug advertisements that aspirin is safe and effective. And while millions of people take aspirin and other variants like Ibuprophen, Advil, Naproxen etc—AKA Non-Steroidal Anti-Inflammatory Drugs (NSAID’s)—many of them don’t always end up with beneficial outcomes.

For over fifty-years physicians have known NSAID’s cause and exacerbate gastric ulcers (that is erosions or holes in the lining of your stomach and dueodenum).[i] Despite these hazards it is estimated that over 60 million Americans are prescribed NSAIDs per year. The Amercian College of Gasteoenterology reported over “100,000 Americans are hospitalized each year” due to “gasterointestinal bleeding from NSAID use” and approximately 16,500 of them will die.[ii]

However, these are just the statistics of NSAID complications from gastrointestinal bleeding. Some physicians estimate that over all deaths from NSAID complications are between 100,000 to 200,000 in the United States annually.[iii] One of the lesser-known but deadly complications of NSAID use is liver destruction. For example a 39 year old man reportedly taking ibuprophen (an NSAID) at high doses for a tooth ache destroyed his liver, had to be hospitalized, and was put on a waiting list for a liver transplant.[iv] NSAID toxicity can be compounded in the elderly population who are often put on a number of drugs and already have compromised liver function due to age. Another group of people at serious risk for liver damage is alcohol consumers. Taking an aspirin or NSAID following a night of drinking may cause irreversible life-threatening damage to the liver.[v] Alcohol and prescription drug use can deplete the liver of its naturally produced protective antioxidants and hinder its ability to detoxify the blood.

Aside from liver damage NSAIDs have also been implicated in damaging the kidneys, lungs, and the vascular system.[vi] Interestingly, a case leukocytoclastic vasculitis (inflammation of the small blood vessels) was reported right here in Largo, FL following usage of naproxen (another NSAID) resulting in multi-limb amputation for the patient.[vii] Apparently naproxen triggered the immune system to attack the small blood vessels of the body feeding muscles and nerves. This in turn caused damage to the distal limbs producing ischemia making them susceptible to gangrene. The medical staff did all they knew but could not save the limbs.

Though many people have little problem taking something as ubiquitous as Advil (an NSAID) never experiencing any terrible effects, this does not mean these  drugs are safe for everyone. Moreover, just because someone does not experience severe side effects does not mean they are precluded from having subclinical damage to their liver or GI tract. Part of the problem is conventional medicine often overstates the benefits of drugs while understating the risks. *The problem is compounded when patients do not know they have alternatives. *Moreover, many live a lifestyle which makes their condition worse (i.e. smoking, drinking, drug use, and obesity). *While no doctor can force a person to change their lifestyle, they can inform their patients to take control of their well-being. *Thus, the patient can become a wise healthcare consumer. So next time you are told to “take two…” you may think twice.

[i] Muir A, Cossar IA. Aspirin and Ulcer. British Medical Journal. 1955 July 2. 7 – 12.

[ii] American College of Gasteroenterology. Understanding Ulcers, NSAIDs & GI Bleeding. A Consumer Health Guide. (accessed June 9, 2013 at http://patients.gi.org/brochures/) 7

[iii] Prystupa A. NSAID-induced acute liver failure—A Case Report. Baltic Journal of Comparative & Clinical Systems Biology. 2012; 2: 31 – 37.

[iv] Ibid.

[v] Weathermon R, Crabb DW. Alcohol and Medication Interactions. Alcohol Research & Health.1999; 23 (1): 40 – 54.

[vi] Prystupa A. Baltic Journal of Comparative & Clinical Systems Biology. 2012; 2: 31 – 37.

[vii] Brown K, Martin J, Zito S. Severe leukocytoclastic vasculitis secondary to the use of naproxen and requiring amputation: as case report. Journal of Medical Case Reports. 2010; 4: 204.

 Personal injury lawyer clearwater Mark Perenich on drugs and injuries

 

Trial experience and big advertisements

Guy_Perenich-005Mark Perenich | Tampa auto accident attorney.

I don’t like to comment on what other attorneys are doing because I believe it to be bad form, but the Tampa Bay Times did an article on Culpepper Kurland. If you are a Tampa Bay area resident you can’t drive any where without seeing these guys on a billboard. http://www.tampabay.com/news/courts/culpepper-kurland-law-firm-long-on-image-short-on-trials/1272324

 

Very interesting article, Whether you are in acar accident, motorcycle accident, or medical malpractice case, John Morgan is right, less people will jump in the ring with you if they have seen you knock others out. My father started our firm in 1955, I have 30 years of legal experience under my belt alone, running a law firm is not like used car sales. We have been around for so long  because we try to build relationships with the community by earning good will through charity and hard work. That’s why most of our cases are referred to us from former clients. My father, Guy Perenich, worked for an insurance company before starting  Perenich and Carroll (now Perenich Caulfield), he saw the little guy getting the short end of the stick time and time again. That’s why he would reduce his fee if he felt he did not make an adequate recovery for a client. You don’t see my face every where because we are not trying to create a plaintiffs mill, we try to provide quality representation to each of our clients. In they article they claim to be gain 2 clients a day there is no way 2 attorneys can represent 520 clients (if we assume they got 2 clients per working day) , perhaps they will hire more attorneys.

In sum, if you are looking for an injury lawyer, look for someone that has experience, a track records, awards and distinctions.  These people will provide you with the best representation.  If you are interested in hiring Mark Perenich, or you need a referral please do not hesitate to call 727-386-9677 or use our contact Mark Perenich page  

Tampa car accident lawyer.