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Filing # 156142366 E-Filed 08/25/2022 04:44:21 PM
IN. THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR DUVAL
COUNTY, FLORIDA
WALTER THOMAS ANDERSON, JR., an
CASE NO: 16-2021-CA-993
individual,
DIVISION: CV-A
Plaintiff,
VS.
LINCARE, INC.,
a foreign profit corporation,
Defendant.
PLAINTIFF’S MOTION FOR STANDARD
JURY INSTRUCTION 301.11(b)
FOR DEFENDANT’S FAILURE TO MAINTAIN EVIDENCE
Plaintiff, Walter Thomas Anderson, Jr., moves this Court for an order granting his request
for use at trial Florida Standard Civil Jury Instruction 301.11(b). In support, Plaintiff states as
follows.
1 On January 8, 2019, Mr. Anderson, while at home he shared with his mother, picked
up a portable compressed oxygen tank that Defendant’s predecessor company delivered for Mr.
Anderson’s mother. At that time, the valve broke and separated from the body of the full tank. As
a result, the oxygen tank rapidly and violently depressurized. The oxygen escaped the tank with
such force that the tank was propelled through the air and around the room. It ultimately struck
Mr. Anderson in the back of the upper neck and head and knocked him unconscious.
2. Mr. Anderson filed this civil action and alleged, among other things, that Defendant
failed to properly maintain the tank such that it was in a defective condition when delivered to Mr.
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 08/26/2022 03:46:18 PM
Anderson or became defective subsequent to delivery. Defendant denies that the tank was faulty
and instead claims that Mr. Anderson mishandled the tank. Resolution of the liability claims in
this case depends upon Plaintiff's ability to inspect the tank at issue.
3 On January 18, 2019, counsel for Plaintiff mailed letters to Lincare Holdings, Inc.
advising it of potential litigation and requesting that the company retain the faulty oxygen tank. A
copy of the letters is attached here as Exhibit A.
4 Litigation ensued, and on or about September 22, 2021, Defendant answered
Plaintiff's interrogatories and advised that it was no longer in possession of the failed oxygen tank.
On or about April 25, 2022, in response to Plaintiff's request for supplemental information
regarding the location of the tank, Defendant answered
6. Who currently is in possession of the failed oxygen tank that is the subject of this
lawsuit? Has Defendant or anyone on behalf of Defendant inspected or tested the tank to determine
the origin or cause of the tank failure? If so, please describe who conducted the inspections /
testing and what their findings were.
ANSWER: Defendant objects to the characterization of the oxygen tank as “failed” as
argumentative. speculative. and calls for expert opinion. Notwithstanding the objection, the
subject tank is no longer in Defendant's possession.
SUPPLEMENTAL ANSWER: Furthermore, Defendant objects to the
characterization of “tank failure” as argumentative, speculative and calls for expert opinion.
Notwithstanding and without waiving the stated objections, the Defendant does not currently
possess the oxygen tank. Defendant is conducting due diligence in an effort to locate the
oxygen tank which remains ongoing; however, to this point, Defendant has been unable to
locate the whereabouts of the tank. As discovery remains ongoing, Defendant reserves the
right to amend this Answer should any additional information become known.
5 Defendant, in its interrogatory answers of April 25, 2022, also stated that it had
taken possession of the tank on the same day that it failed and injured Mr. Anderson:
9 When and where was the subject high pressure cylinder oxygen tank sold. or leased,
to Defendant Lincare, Inc.. and when did Defendant Lincare, Inc. take possession of the subject
Page 3
~--------------
high pressure cylinder oxygen tank that failed on January 8. 2019 and that was involved in this
case.
ANSWER: Defendant objects to the characterization of the oxygen tank as “failed” as
argumentative, speculative. and calls for expert opinion Additionally, the interrogatory is
compound and seeks irrelevant information not reasonably calculated to lead to the discovery of
admissible evidence.
SUPPLEMENTAL ANSWER: Notwithstanding and without waiving the stated
objections, the Defendant became owner of the oxygen tank in question upon the merger and
acquisition of the company, American Home Patient, on February 14, 2018. At that time, it
is believed that the oxygen tank was already in the possession of Ernestine Pinckney having
been provided to her by Lifegas on behalf of American Home Patient. The Defendant took
possession of the oxygen tank in question on January 8, 2019.
The uncontroverted facts show that
1 The evidence existed. Defendant possessed the malfunctioning oxygen tank it
knew struck and injured Mr. Anderson.
2. Defendant had a duty to preserve the malfunctioning oxygen tank.
3 The absence of the malfunctioning oxygen tank hinders Plaintiffs ability to
establish and defend his claim, as Defendant, in its answer, has denied liability and asserted that
Plaintiff was at fault for his injuries. Defendant has also alleged that, “the product herein was
altered, misused, modified, and/or abused by Plaintiff, patient, or another third-party, as such
Plaintiffs claims are barred.” 1
1 Defendant, Lincare, Inc.’s Answer and Affirmative Defenses to Plaintiff's Second Amended
Complaint.
Moreover, Defendant has retained an expert, Nathan H. Morrill, whom Defendant
anticipates will testify that
It is expected that Mr. Morrill will testify that the oxygen tank provided by Lincare, Inc. to
Emestine Pickney was maintained appropriately by the Defendant, that said tank was not defective,
and that human error likely caused and/or contributed to the valve post becoming dislodged from
the oxygen tank Mr. Morrill’s opinions will be based upon his background, education, training
SSeoeieees Seas soe Ree as soe eee ese oseer esas asseeeeesass
and experience. examination of similar/exemplar oxygen cylinders. his review of all relevant
discovery materials including depositions and photographs in this case. and his review of any
relevant studies on the functions of similar oxygen cylinders and valves. He will also provide
rebuttal testimony to that offered by any similarly tendered expert identified by Plaintiff.
Without the malfunctioning tank available for inspection and testing, Mr. Anderson’s
ability to rebut Mr. Morrill’s testimony will be severely limited, which will result in prejudice to
Mr. Anderson.
MEMORANDUM OF LAW AND ARGUMENT
In the recent case of Adamson v. R.J. Reynolds Tobacco Co., the Fourth District Court of
Appeal summarized the law on spoliation and the remedies available to a party who is prejudiced
because of evidence “lost, misplaced, or destroyed.” 325 So. 3d 887, 894 (Fla. 4th DCA 2021),
The Court stated:
First-party spoliation occurs when a party to the action lost, misplaced, or destroyed
evidence. . When a party has intentionally interfered with the adverse party's
access to critical evidence, a wide range of sanctions is available to the trial court
4
under Florida Rule of Civil Procedure 1.380(b)(2). However, when essential
evidence is unavailable due to a party's negligence, a rebuttable presumption arises
in favor of the other party. Prior to a court exercising any leveling mechanism due
to spoliation of evidence, the court must answer three threshold questions: 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.
Id. (citations and quotations omitted).
As a sanction for the negligent loss or destruction of evidence, the Supreme Court of
Florida has held:
If the evidence was negligently destroyed, a rebuttable presumption of liability may
arise. ... In other words, as recognized by the Fourth District Court of Appeal, ‘an
adverse inference may arise in any situation where potentially self-damaging
evidence is in the possession of a party and that party either loses or destroys the
evidence.
League of Women Voters of Fla. V. Detzner, 172 So. 3d 363, 391 (Fla. 2015)(citations omitted).
Significantly, a party may be subject to an adverse inference instruction even in the absence
of a legal duty to preserve evidence. The Supreme Court of Florida has noted, on more than one
occasion that:
Even in the absence of a legal duty, though, the spoliation of evidence results in an
adverse inference against the party that discarded or destroyed the evidence. As this
Court explained in Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346 (Fla.
2005), Florida courts may impose sanctions, including striking pleadings, against a
party that intentionally lost, misplaced, or destroyed evidence, and a jury could infer
under such circumstances that the evidence would have contained indications of
liability.
Here, Defendant was negligent by failing to preserve and produce the malfunctioning
oxygen tank; and as such, Plaintiff is entitled to the burden shifting presumption.* All three criteria
justifying the instruction are present in the instant case: 1) the malfunctioning oxygen tank existed;
2. Id.
3. The presumption is contained in Florida Standard Civil Jury Instruction 301.11(b).
5
2) Defendant had a duty to preserve it; and, 3) the loss of the malfunctioning oxygen tank hinders
Plaintiff's ability to establish his claim and rebut Defendant’s affirmative defenses.
1. The Evidence Existed
The malfunctioning oxygen tank certainly existed. Defendant, on January 8, 2019, the date
that the tank malfunctioned, retrieved the tank from Mr. Anderson’s residence. Defendant, three
days later on January 11, 2019, notified its insurance carrier of the event. Defendant then prepared
a report documenting the event itself, the Plaintiff's injuries, and the fact that Defendant placed
the oxygen tank in quarantine such that the tank remained in Defendant’s exclusive possession and
control, where Defendant had an opportunity to inspect or test the tank before destroying or losing
it. Defendant’s incident report states in pertinent part,
a 1
Incident Information
Date of Incident | Time of Incident Incident Type
1/8/2019 Adverse Event
J
Date Reported| Reported By Date Reported to CM|\ Date Sent To Insurance| Insurance Claim
Number
1/6/2018 | Adams,Carolyn Faye B 1/8/2019 1/11/2019 2423
Descriptionofincident
Pt. claims that the cylinder went off like a missle and flew around
the room. The cylinder hit the pt's son in the back of the
head and he was sent to the hospital in at in ambulance,
InjuriesPropertyDamage
Patient's son was hitin the head by the cylinder and went to the hospital
[Patient Re-insrucied| Sent to Litigation [eer Legal Reviews [Fie Report|
Initial Corrective Action
[Ea uipment placed in Quarantine, patient re-instructed on how to use
cylinders
2. Defendant had a Duty to Preserve the Malfunctioning Oxygen Tank
There is no question Defendant had a duty to preserve the tank. Defendant was notified of the
incident the day it occurred. Defendant notified its insurance carrier, opened a claim and, of its
own accord, quarantined the oxygen tank. On January 18, 2019, counsel for Plaintiff mailed a
certified letter to Lincare Holdings, Inc. and requested that it preserve the malfunctioning oxygen
tank. See, Exhibit A. On that same date, counsel for Plaintiff also sent letters to Lincare Holdings,
Inc. that advised Plaintiff had retained counsel for the incident and that requested disclosure of
Lincare’s insurance information. Id. On January 28, 2019, Defendant’s third-party claims
administrator, ESIS, responded to Plaintiff's insurance disclosure request and provided the
information sought. Attached hereto as Exhibit B is the correspondence from ESIS to counsel for
Plaintiff.
In Adamson, the Fourth DCA stated, “a duty to preserve evidence exists in ‘circumstances
when a party should reasonably foresee litigation.”” 325 So. 3d 887, 895 (Fla. 4th DCA
2021)(citing League of Women Voters of Fla. V. Detzner, 172 So. 3d 363, 391 (Fla. 2015). Given
Defendant’s quarantining of the tank, preparing an incident report, and notifying its insurance
carrier in addition to Plaintiff's letters of representation, of requesting Defendant preserve the tank,
and of requesting insurance information, litigation was reasonably foreseeable. Therefore,
Defendant had a duty to preserve the oxygen tank.
3. The Malfunctioning Oxygen Tank was Critical to Plaintiffs Ability to Prove his Case
In Martino v. Wal-Mart Stores, Inc., the Supreme Court of Florida stated that where a party
negligently loses, misplaces, or destroys evidence, and the absence of that evidence “hinders the
[plaintiff's] ability to establish a prima facie case,” the rebuttable presumption of negligence for
the underlying tort applies. 908 So. 2d 342, 346-47 (Fla. 2005).
Here, Plaintiff does not believe Defendant intentionally lost, misplaced, or destroyed the
oxygen tank. It was, however, negligent by failing to properly preserve and produce it. Plaintiff
notified Defendant of the incident shortly after it happened. Defendant quarantined the tank,
ostensibly understanding that a legal claim would follow. Defendant notified its insurance carrier
and received notice from counsel for Plaintiffto preserve the tank.
The malfunctioning oxygen tank has probative value in this case. Without it, both parties
are left to speculate regarding why the tank specifically failed. Plaintiff anticipates that
Defendant’s retained expert engineer will testify that Defendant properly handled the tank before
delivery and that Plaintiff's own negligence led to the tank failure. Without a proper inspection
of the tank by Plaintiff's engineer, Plaintiff will be limited in his ability to rebut Defendant’s
affirmative defenses.
For the foregoing reasons, Defendant should be subject to the burden shifting presumption
found in Standard Jury Instruction 301.11(b). In the alternative, Plaintiff requests the adverse
inference instruction found in Standard Jury Instruction 301.11(a).
WHEREFORE, Plaintiff respectfully requests this Honorable Court grant Plaintiffs
Motion for Standard Jury Instruction 301.11(b) for Defendant’s failure to maintain evidence and
to grant any other relief the Court deems just and proper.
CERTIFICATE OF SERVICE
On August 25, 2022, via the Florida Courts E-Filing Portal, I served a copy of this
document to the following individuals.
Jeffrey P. Gill
Vernis & Bowling of Northwest Florida, PA
315 S. Palafox St.
Pensacola, FL 32502
jgill@florida-law.com
skisling@florida-law.com
sprice@florida-law.com
HARRELL & HARRELL, P.A.
Qostow ey waa
Adam F. Regar
Attorneys for Plaintiff
Florida Bar No.: 14637
4735 Sunbeam Rd.
Jacksonville, FL 32257
Tel.: 904-251-1111
Fax: 904-251-1110
aregar@harrellandharrell.com
bberrios@harrellandharrell.com
peupit@harrellandharrell.com
January 18, 2019
Lincare Holdings Inc.
Corporate Office
19387 U.S. 19 North
Clearwater, FL 33764
Re: Our Client: Walter Thomas Anderson, Jr.
Date of Incident: 1/8/2019
Matter #: 1950232
Dear Sir/Madam:
Our firm represents the above captioned client who has suffered injuries as a result of an
incident with the oxygen tank in which you own was negligently involved.
Florida law compels the disclosure of insurance information, including the limits of coverage
and the name of the insurance carrier to the requesting party. Upon receipt of this letter, please
notify us of your coverage and refer this letter to your insurance company. In the event that you are
uninsured for this accident, please have your personal attorney contact us.
All future correspondence and inquiries should be directed to our attention.
Sincerely,
Nancy Gregg
Paralegal to Gregory J. Schlax
NG/er
EXHIBIT A
January 18, 2019
Lincare Holdings Inc.
Corporate Office
9440 Phillips Hwy., Ste #13
Jacksonville, FL 32256
Re: Our Client: Walter Thomas Anderson, Jr.
Date of Incident: 1/8/2019
Matter #: 1950232
Dear Sir/Madam :
Our firm represents the above captioned client who has suffered injuries as a result of an
incident in which you were negligently involved.
Florida law compels the disclosure of insurance information, including the limits of coverage
and the name of the insurance carrier to the requesting party. Upon receipt of this letter, please
notify us of your coverage and refer this letter to your insurance company. In the event that you are
uninsured for this accident, please have your personal attorney contact us.
All future correspondence and inquiries should be directed to our attention.
Sincerely,
Nancy Gregg
Paralegal to Gregory J. Schlax
NG/er
EXHIBIT A
January 18, 2019
CERTIFIED MAIL
RETURN RECEIPT RE! TED
Lincare Holdings INC
9440 Phillips Hwy., Ste #13
Jacksonville, FL 32256
RE: PRESERVATION OF EVIDENCE
Our Client :Walter Thomas Anderson, Jr.
Date of Loss 21/8/2019
Location of Incident :5331 Appleton Avenue, Jacksonville, FL
Dear Sir/Madam:
Please be advised that our law firm represents Walter Thomas Anderson, Jr. for injuries and
other damages that were sustained in the above-referenced incident which occurred at 5331
Appleton Avenue, Jacksonville, FL 32210. On behalf of our clients, we are formally requesting that
you preserve the oxygen tank from the above referenced incident. Please do not repair, alter the
oxygen tank until we are able to have them inspected by one of our representatives.
The law compels preservation of this potentially valuable evidence; otherwise, the law
recognizes a cause of action for negligent spoliation of evidence. We request an immediate
opportunity to inspect the above-described items at your convenience. You or your company’s failure
to honor and abide by this request could result in the destruction of or the alteration of essential
evidence that will be relevant and necessary in a future civil action.
We appreciate your cooperation. Please call if you have any questions. If you feel you
cannot honor this request, please respond in writing.
Sincerely,
Gregory J. Schlax, Esquire
GJS/ng/er
cc: Lincare Holdings Inc. Corporate Office
EXHIBIT A
From:
To: Nan« x240:
Subject: ANDERSON, Walter VS. Lincare Company: claim number 2423 Client Lincare Holdings claimant
Walter Anderson
Date: Monday, January 28, 2019 4:59:33 PM
Nancy
ESIS, Inc. is the third party claims administrator
for Lincare Holdings
This acknowledges receipt of the letter of representation and supplements our conversation
Lincare has an SIR of $250,000 and there is $1,000,000 in insurance coverage with Allianz Insurance
Company.
Please let me know if you have any further questions
Thanks
ESIS®
Ralph J. Spano
Sr Claim Representative
ESIS, Inc. Tampa, Florida 33609
1-800-282-4651 ext. 18132811388 / Direct 813-281-1388/ Fax 1-800-590-6481
@esis.com / www.acegroup.com
ESIS claims are now managed in a paperless environment. Please send all correspondence and medical bills to
the appropriate scanning center listed below, and be sure to include the claim number on each document. This will
help speed the processing of the claims.
ESIS AGL Claims — Southeast Hub
P.O. Box 5128
Scranton, PA 18505-0560
Fax: 800-590.6481
This email (including any attachments) is intended for the designated recipient(s) only, and
may be confidential, non-public, proprietary, and/or protected by the attorney-client or other
privilege. Unauthorized reading, distribution, copying or other use of this communication is
prohibited and may be unlawful. Receipt by anyone other than the intended recipient(s) should
not be deemed a waiver of any privilege or protection. If you are not the intended recipient or
if you believe that you have received this email in error, please notify the sender immediately
and delete all copies from your computer system without reading, saving, printing, forwarding
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EXHIBIT B
Preview
Filing # 156142366 E-Filed 08/25/2022 04:44:21 PM IN. THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA WALTER THOMAS ANDERSON, JR., an CASE NO: 16-2021-CA-993 individual, DIVISION: CV-A Plaintiff, VS. LINCARE, INC., a foreign profit corporation, Defendant. PLAINTIFF’S MOTION FOR STANDARD JURY INSTRUCTION 301.11(b) FOR DEFENDANT’S FAILURE TO MAINTAIN EVIDENCE Plaintiff, Walter Thomas Anderson, Jr., moves this Court for an order granting his request for use at trial Florida Standard Civil Jury Instruction 301.11(b). In support, Plaintiff states as follows. 1 On January 8, 2019, Mr. Anderson, while at home he shared with his mother, picked up a portable compressed oxygen tank that Defendant’s predecessor company delivered for Mr. Anderson’s mother. At that time, the valve broke and separated from the body of the full tank. As a result, the oxygen tank rapidly and violently depressurized. The oxygen escaped the tank with such force that the tank was propelled through the air and around the room. It ultimately struck Mr. Anderson in the back of the upper neck and head and knocked him unconscious. 2. Mr. Anderson filed this civil action and alleged, among other things, that Defendant failed to properly maintain the tank such that it was in a defective condition when delivered to Mr. ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 08/26/2022 03:46:18 PM Anderson or became defective subsequent to delivery. Defendant denies that the tank was faulty and instead claims that Mr. Anderson mishandled the tank. Resolution of the liability claims in this case depends upon Plaintiff's ability to inspect the tank at issue. 3 On January 18, 2019, counsel for Plaintiff mailed letters to Lincare Holdings, Inc. advising it of potential litigation and requesting that the company retain the faulty oxygen tank. A copy of the letters is attached here as Exhibit A. 4 Litigation ensued, and on or about September 22, 2021, Defendant answered Plaintiff's interrogatories and advised that it was no longer in possession of the failed oxygen tank. On or about April 25, 2022, in response to Plaintiff's request for supplemental information regarding the location of the tank, Defendant answered 6. Who currently is in possession of the failed oxygen tank that is the subject of this lawsuit? Has Defendant or anyone on behalf of Defendant inspected or tested the tank to determine the origin or cause of the tank failure? If so, please describe who conducted the inspections / testing and what their findings were. ANSWER: Defendant objects to the characterization of the oxygen tank as “failed” as argumentative. speculative. and calls for expert opinion. Notwithstanding the objection, the subject tank is no longer in Defendant's possession. SUPPLEMENTAL ANSWER: Furthermore, Defendant objects to the characterization of “tank failure” as argumentative, speculative and calls for expert opinion. Notwithstanding and without waiving the stated objections, the Defendant does not currently possess the oxygen tank. Defendant is conducting due diligence in an effort to locate the oxygen tank which remains ongoing; however, to this point, Defendant has been unable to locate the whereabouts of the tank. As discovery remains ongoing, Defendant reserves the right to amend this Answer should any additional information become known. 5 Defendant, in its interrogatory answers of April 25, 2022, also stated that it had taken possession of the tank on the same day that it failed and injured Mr. Anderson: 9 When and where was the subject high pressure cylinder oxygen tank sold. or leased, to Defendant Lincare, Inc.. and when did Defendant Lincare, Inc. take possession of the subject Page 3 ~-------------- high pressure cylinder oxygen tank that failed on January 8. 2019 and that was involved in this case. ANSWER: Defendant objects to the characterization of the oxygen tank as “failed” as argumentative, speculative. and calls for expert opinion Additionally, the interrogatory is compound and seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence. SUPPLEMENTAL ANSWER: Notwithstanding and without waiving the stated objections, the Defendant became owner of the oxygen tank in question upon the merger and acquisition of the company, American Home Patient, on February 14, 2018. At that time, it is believed that the oxygen tank was already in the possession of Ernestine Pinckney having been provided to her by Lifegas on behalf of American Home Patient. The Defendant took possession of the oxygen tank in question on January 8, 2019. The uncontroverted facts show that 1 The evidence existed. Defendant possessed the malfunctioning oxygen tank it knew struck and injured Mr. Anderson. 2. Defendant had a duty to preserve the malfunctioning oxygen tank. 3 The absence of the malfunctioning oxygen tank hinders Plaintiffs ability to establish and defend his claim, as Defendant, in its answer, has denied liability and asserted that Plaintiff was at fault for his injuries. Defendant has also alleged that, “the product herein was altered, misused, modified, and/or abused by Plaintiff, patient, or another third-party, as such Plaintiffs claims are barred.” 1 1 Defendant, Lincare, Inc.’s Answer and Affirmative Defenses to Plaintiff's Second Amended Complaint. Moreover, Defendant has retained an expert, Nathan H. Morrill, whom Defendant anticipates will testify that It is expected that Mr. Morrill will testify that the oxygen tank provided by Lincare, Inc. to Emestine Pickney was maintained appropriately by the Defendant, that said tank was not defective, and that human error likely caused and/or contributed to the valve post becoming dislodged from the oxygen tank Mr. Morrill’s opinions will be based upon his background, education, training SSeoeieees Seas soe Ree as soe eee ese oseer esas asseeeeesass and experience. examination of similar/exemplar oxygen cylinders. his review of all relevant discovery materials including depositions and photographs in this case. and his review of any relevant studies on the functions of similar oxygen cylinders and valves. He will also provide rebuttal testimony to that offered by any similarly tendered expert identified by Plaintiff. Without the malfunctioning tank available for inspection and testing, Mr. Anderson’s ability to rebut Mr. Morrill’s testimony will be severely limited, which will result in prejudice to Mr. Anderson. MEMORANDUM OF LAW AND ARGUMENT In the recent case of Adamson v. R.J. Reynolds Tobacco Co., the Fourth District Court of Appeal summarized the law on spoliation and the remedies available to a party who is prejudiced because of evidence “lost, misplaced, or destroyed.” 325 So. 3d 887, 894 (Fla. 4th DCA 2021), The Court stated: First-party spoliation occurs when a party to the action lost, misplaced, or destroyed evidence. . When a party has intentionally interfered with the adverse party's access to critical evidence, a wide range of sanctions is available to the trial court 4 under Florida Rule of Civil Procedure 1.380(b)(2). However, when essential evidence is unavailable due to a party's negligence, a rebuttable presumption arises in favor of the other party. Prior to a court exercising any leveling mechanism due to spoliation of evidence, the court must answer three threshold questions: 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. Id. (citations and quotations omitted). As a sanction for the negligent loss or destruction of evidence, the Supreme Court of Florida has held: If the evidence was negligently destroyed, a rebuttable presumption of liability may arise. ... In other words, as recognized by the Fourth District Court of Appeal, ‘an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence. League of Women Voters of Fla. V. Detzner, 172 So. 3d 363, 391 (Fla. 2015)(citations omitted). Significantly, a party may be subject to an adverse inference instruction even in the absence of a legal duty to preserve evidence. The Supreme Court of Florida has noted, on more than one occasion that: Even in the absence of a legal duty, though, the spoliation of evidence results in an adverse inference against the party that discarded or destroyed the evidence. As this Court explained in Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346 (Fla. 2005), Florida courts may impose sanctions, including striking pleadings, against a party that intentionally lost, misplaced, or destroyed evidence, and a jury could infer under such circumstances that the evidence would have contained indications of liability. Here, Defendant was negligent by failing to preserve and produce the malfunctioning oxygen tank; and as such, Plaintiff is entitled to the burden shifting presumption.* All three criteria justifying the instruction are present in the instant case: 1) the malfunctioning oxygen tank existed; 2. Id. 3. The presumption is contained in Florida Standard Civil Jury Instruction 301.11(b). 5 2) Defendant had a duty to preserve it; and, 3) the loss of the malfunctioning oxygen tank hinders Plaintiff's ability to establish his claim and rebut Defendant’s affirmative defenses. 1. The Evidence Existed The malfunctioning oxygen tank certainly existed. Defendant, on January 8, 2019, the date that the tank malfunctioned, retrieved the tank from Mr. Anderson’s residence. Defendant, three days later on January 11, 2019, notified its insurance carrier of the event. Defendant then prepared a report documenting the event itself, the Plaintiff's injuries, and the fact that Defendant placed the oxygen tank in quarantine such that the tank remained in Defendant’s exclusive possession and control, where Defendant had an opportunity to inspect or test the tank before destroying or losing it. Defendant’s incident report states in pertinent part, a 1 Incident Information Date of Incident | Time of Incident Incident Type 1/8/2019 Adverse Event J Date Reported| Reported By Date Reported to CM|\ Date Sent To Insurance| Insurance Claim Number 1/6/2018 | Adams,Carolyn Faye B 1/8/2019 1/11/2019 2423 Descriptionofincident Pt. claims that the cylinder went off like a missle and flew around the room. The cylinder hit the pt's son in the back of the head and he was sent to the hospital in at in ambulance, InjuriesPropertyDamage Patient's son was hitin the head by the cylinder and went to the hospital [Patient Re-insrucied| Sent to Litigation [eer Legal Reviews [Fie Report| Initial Corrective Action [Ea uipment placed in Quarantine, patient re-instructed on how to use cylinders 2. Defendant had a Duty to Preserve the Malfunctioning Oxygen Tank There is no question Defendant had a duty to preserve the tank. Defendant was notified of the incident the day it occurred. Defendant notified its insurance carrier, opened a claim and, of its own accord, quarantined the oxygen tank. On January 18, 2019, counsel for Plaintiff mailed a certified letter to Lincare Holdings, Inc. and requested that it preserve the malfunctioning oxygen tank. See, Exhibit A. On that same date, counsel for Plaintiff also sent letters to Lincare Holdings, Inc. that advised Plaintiff had retained counsel for the incident and that requested disclosure of Lincare’s insurance information. Id. On January 28, 2019, Defendant’s third-party claims administrator, ESIS, responded to Plaintiff's insurance disclosure request and provided the information sought. Attached hereto as Exhibit B is the correspondence from ESIS to counsel for Plaintiff. In Adamson, the Fourth DCA stated, “a duty to preserve evidence exists in ‘circumstances when a party should reasonably foresee litigation.”” 325 So. 3d 887, 895 (Fla. 4th DCA 2021)(citing League of Women Voters of Fla. V. Detzner, 172 So. 3d 363, 391 (Fla. 2015). Given Defendant’s quarantining of the tank, preparing an incident report, and notifying its insurance carrier in addition to Plaintiff's letters of representation, of requesting Defendant preserve the tank, and of requesting insurance information, litigation was reasonably foreseeable. Therefore, Defendant had a duty to preserve the oxygen tank. 3. The Malfunctioning Oxygen Tank was Critical to Plaintiffs Ability to Prove his Case In Martino v. Wal-Mart Stores, Inc., the Supreme Court of Florida stated that where a party negligently loses, misplaces, or destroys evidence, and the absence of that evidence “hinders the [plaintiff's] ability to establish a prima facie case,” the rebuttable presumption of negligence for the underlying tort applies. 908 So. 2d 342, 346-47 (Fla. 2005). Here, Plaintiff does not believe Defendant intentionally lost, misplaced, or destroyed the oxygen tank. It was, however, negligent by failing to properly preserve and produce it. Plaintiff notified Defendant of the incident shortly after it happened. Defendant quarantined the tank, ostensibly understanding that a legal claim would follow. Defendant notified its insurance carrier and received notice from counsel for Plaintiffto preserve the tank. The malfunctioning oxygen tank has probative value in this case. Without it, both parties are left to speculate regarding why the tank specifically failed. Plaintiff anticipates that Defendant’s retained expert engineer will testify that Defendant properly handled the tank before delivery and that Plaintiff's own negligence led to the tank failure. Without a proper inspection of the tank by Plaintiff's engineer, Plaintiff will be limited in his ability to rebut Defendant’s affirmative defenses. For the foregoing reasons, Defendant should be subject to the burden shifting presumption found in Standard Jury Instruction 301.11(b). In the alternative, Plaintiff requests the adverse inference instruction found in Standard Jury Instruction 301.11(a). WHEREFORE, Plaintiff respectfully requests this Honorable Court grant Plaintiffs Motion for Standard Jury Instruction 301.11(b) for Defendant’s failure to maintain evidence and to grant any other relief the Court deems just and proper. CERTIFICATE OF SERVICE On August 25, 2022, via the Florida Courts E-Filing Portal, I served a copy of this document to the following individuals. Jeffrey P. Gill Vernis & Bowling of Northwest Florida, PA 315 S. Palafox St. Pensacola, FL 32502 jgill@florida-law.com skisling@florida-law.com sprice@florida-law.com HARRELL & HARRELL, P.A. Qostow ey waa Adam F. Regar Attorneys for Plaintiff Florida Bar No.: 14637 4735 Sunbeam Rd. Jacksonville, FL 32257 Tel.: 904-251-1111 Fax: 904-251-1110 aregar@harrellandharrell.com bberrios@harrellandharrell.com peupit@harrellandharrell.com January 18, 2019 Lincare Holdings Inc. Corporate Office 19387 U.S. 19 North Clearwater, FL 33764 Re: Our Client: Walter Thomas Anderson, Jr. Date of Incident: 1/8/2019 Matter #: 1950232 Dear Sir/Madam: Our firm represents the above captioned client who has suffered injuries as a result of an incident with the oxygen tank in which you own was negligently involved. Florida law compels the disclosure of insurance information, including the limits of coverage and the name of the insurance carrier to the requesting party. Upon receipt of this letter, please notify us of your coverage and refer this letter to your insurance company. In the event that you are uninsured for this accident, please have your personal attorney contact us. All future correspondence and inquiries should be directed to our attention. Sincerely, Nancy Gregg Paralegal to Gregory J. Schlax NG/er EXHIBIT A January 18, 2019 Lincare Holdings Inc. Corporate Office 9440 Phillips Hwy., Ste #13 Jacksonville, FL 32256 Re: Our Client: Walter Thomas Anderson, Jr. Date of Incident: 1/8/2019 Matter #: 1950232 Dear Sir/Madam : Our firm represents the above captioned client who has suffered injuries as a result of an incident in which you were negligently involved. Florida law compels the disclosure of insurance information, including the limits of coverage and the name of the insurance carrier to the requesting party. Upon receipt of this letter, please notify us of your coverage and refer this letter to your insurance company. In the event that you are uninsured for this accident, please have your personal attorney contact us. All future correspondence and inquiries should be directed to our attention. Sincerely, Nancy Gregg Paralegal to Gregory J. Schlax NG/er EXHIBIT A January 18, 2019 CERTIFIED MAIL RETURN RECEIPT RE! TED Lincare Holdings INC 9440 Phillips Hwy., Ste #13 Jacksonville, FL 32256 RE: PRESERVATION OF EVIDENCE Our Client :Walter Thomas Anderson, Jr. Date of Loss 21/8/2019 Location of Incident :5331 Appleton Avenue, Jacksonville, FL Dear Sir/Madam: Please be advised that our law firm represents Walter Thomas Anderson, Jr. for injuries and other damages that were sustained in the above-referenced incident which occurred at 5331 Appleton Avenue, Jacksonville, FL 32210. On behalf of our clients, we are formally requesting that you preserve the oxygen tank from the above referenced incident. Please do not repair, alter the oxygen tank until we are able to have them inspected by one of our representatives. The law compels preservation of this potentially valuable evidence; otherwise, the law recognizes a cause of action for negligent spoliation of evidence. We request an immediate opportunity to inspect the above-described items at your convenience. You or your company’s failure to honor and abide by this request could result in the destruction of or the alteration of essential evidence that will be relevant and necessary in a future civil action. We appreciate your cooperation. Please call if you have any questions. If you feel you cannot honor this request, please respond in writing. Sincerely, Gregory J. Schlax, Esquire GJS/ng/er cc: Lincare Holdings Inc. Corporate Office EXHIBIT A From: To: Nan« x240: Subject: ANDERSON, Walter VS. Lincare Company: claim number 2423 Client Lincare Holdings claimant Walter Anderson Date: Monday, January 28, 2019 4:59:33 PM Nancy ESIS, Inc. is the third party claims administrator for Lincare Holdings This acknowledges receipt of the letter of representation and supplements our conversation Lincare has an SIR of $250,000 and there is $1,000,000 in insurance coverage with Allianz Insurance Company. Please let me know if you have any further questions Thanks ESIS® Ralph J. Spano Sr Claim Representative ESIS, Inc. Tampa, Florida 33609 1-800-282-4651 ext. 18132811388 / Direct 813-281-1388/ Fax 1-800-590-6481 @esis.com / www.acegroup.com ESIS claims are now managed in a paperless environment. Please send all correspondence and medical bills to the appropriate scanning center listed below, and be sure to include the claim number on each document. This will help speed the processing of the claims. ESIS AGL Claims — Southeast Hub P.O. Box 5128 Scranton, PA 18505-0560 Fax: 800-590.6481 This email (including any attachments) is intended for the designated recipient(s) only, and may be confidential, non-public, proprietary, and/or protected by the attorney-client or other privilege. Unauthorized reading, distribution, copying or other use of this communication is prohibited and may be unlawful. Receipt by anyone other than the intended recipient(s) should not be deemed a waiver of any privilege or protection. 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