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Rosenblit v. Zimmerman

February 26, 2001


The opinion of the court was delivered by: Justice Long

ON APPEAL FROM ON CERTIFICATION TO Appellate Division, Superior Court

Chief Justice Poritz PRESIDING

Argued September 25, 2000

On certification to the Superior Court, Appellate Division.

This case involves a physician who deliberately destroyed and altered medical records in anticipation of a patient's malpractice lawsuit against him. By happenstance, the patient obtained the original records prior to trial. The jury returned a verdict in favor of the physician in the malpractice action. The patient later recovered a judgment for fraudulent concealment of evidence. Both parties appealed. We are called upon here to determine what remedies are available to a plaintiff in these circumstances.


The facts are not in serious dispute. Plaintiff Erin Rosenblit, a registered nurse, sought treatment from defendant, Dr. John F. Zimmerman, Jr., a chiropractor, for midback pain early in 1992. In January and February of 1992, and again in May and June of 1992, Dr. Zimmerman treated Rosenblit with chiropractic manipulation. In manipulation, Zimmerman placed one hand under Rosenblit's chin, the other hand on the back of her skull, and moved her backward by pulling up on her chin. After her third or fourth visit, Rosenblit developed new symptoms, including neck pain, headaches, nausea, and ringing in her ears. Rosenblit testified that even after bringing those complaints to Dr. Zimmerman's attention, he attempted the same type of neck manipulation during a subsequent visit.

Rosenblit went to other doctors in an attempt to determine what was wrong with her. Dr. Jerome Cottler, who saw Rosenblit in October 1994, found C1-C2 instability in her neck on the basis of X rays of plaintiff's neck that revealed a space between the C1 and C2 vertebrae greater than two millimeters. She underwent orthopaedic surgery in January 1995 to fuse two cervical vertebrae in her spine. Rosenblit testified that the symptoms that brought her to seek treatment from defendant in the first place were not relieved until after the fusion surgery.

In 1995, Rosenblit sued Dr. Zimmerman, and Health First Chiropractic Clinic in which Dr. Zimmerman was a partner, alleging malpractice. She obtained a copy of her medical chart from Dr. Zimmerman's office prior to commencing the malpractice lawsuit. During discovery, Rosenblit received another copy of her chart from Dr. Zimmerman and realized that it was different from the one she already had in her possession. The altered chart made it appear that she was improving with the treatment administered by the doctor; that her complaints about neck pain after the treatment were really complaints about mid-back pain; and that she was satisfied with the treatment when she left his care. The original unaltered chart, however, revealed that Rosenblit was not gradually improving and that she was dissatisfied with her condition when she last visited Dr. Zimmerman. When Dr. Zimmerman was confronted with that discrepancy at his deposition, he explained that when he was served with the summons and complaint, almost two years after treating Rosenblit, he decided to recopy the chart to make it more legible. After he recopied the chart, he destroyed the originals. A comparison of the two charts, however, shows alterations that are plainly not the result of recopying. With respect to those alterations, Dr. Zimmerman testified at his deposition that he wanted to make the records more complete, and that he remembered details that he had never recorded earlier.

After discovering that a second set of altered medical records existed, Rosenblit amended her complaint to include counts for spoliation and fraudulent concealment of evidence based upon Dr. Zimmerman's conduct. The trial court bifurcated the malpractice counts from the spoliation and fraudulent concealment counts. All claims, however, were tried before the same jury, with the malpractice case proceeding first.

Before the malpractice portion of the trial began, the trial court barred evidence of Dr. Zimmerman's alteration of the medical chart, except if used to impeach his credibility as a witness. Predictably, defense counsel did not call Dr. Zimmerman to the stand, and Rosenblit therefore was barred from referring to the altered records, or to Zimmerman's deposition acknowledging and attempting to explain the alterations.

The malpractice trial proceeded with Rosenblit's original chart being placed in evidence, and Dr. Zimmerman stipulating that Rosenblit's version of the chiropractic treatment that he provided was true. Both parties presented expert witnesses about whether or not Dr. Zimmerman's treatment of Rosenblit was within the accepted standard of care.

That testimony need not be recounted here except to observe that it constituted the proverbial battle of the experts. The jury returned a verdict in favor of Dr. Zimmerman on the issue of negligence, never reaching the proximate cause question.

Over defense counsel's objections, the spoliation and fraudulent concealment trial proceeded before the same jury. During that trial, Rosenblit presented the altered records, and Dr. Zimmerman's deposition testimony explaining why he altered and then destroyed her records. Dr. Zimmerman moved for judgment at the close of Rosenblit's case and at the close of all the evidence, arguing that she had not shown that his alteration of her medical chart impaired her ability to prove her malpractice case. Both motions were denied. The trial court submitted a single fraudulent concealment count to the jury.

The jury returned a verdict in favor of Rosenblit, and awarded her $421.75 in compensatory damages, and $500,000 in punitive damages. Dr. Zimmerman filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial. The trial court denied both motions subject to a remittitur of the punitive damages award to $150,000. Rosenblit accepted the remittitur.

Thereafter, Rosenblit appealed from the judgment in the malpractice action on the ground that the jury should have been permitted to consider Dr. Zimmerman's alteration of her medical records, regardless of his decision not to take the stand. Dr. Zimmerman cross-appealed from the fraudulent concealment verdict, maintaining that Rosenblit could not sustain that cause of action because she had the accurate records in her possession and thus the alteration and destruction of the medical records did not impair her ability to file or prove her malpractice case. In an unpublished per curiam opinion, a panel of the Appellate Division affirmed both verdicts with a dissenting opinion.

Regarding the evidentiary issue at the malpractice trial, the court recognized that a record alteration is admissible as the statement of a party opponent under Rule 4:16-1(a) and N.J.R.E. 803(b), and "as evidence of defendant's own perception that the actual records did not support his defense." Noting that the "trial judge apparently agreed with defendant that any relevance would be outweighed by prejudice" the panel stated that "[w]e need not resolve that balancing question in light of our conclusion that any error was harmless." That conclusion was, in turn, based on the court's determination that the altered record evidence was relevant only to proximate cause, an issue the jury never reached. The court thus affirmed the dismissal of the malpractice action.

On the fraudulent concealment verdict, the court recognized the existence of the fraudulent concealment tort and underscored the intentional nature of Dr. Zimmerman's actions and the special fiduciary relationship between doctor and patient that made those actions especially egregious.*fn1 Concluding that Dr. Zimmerman had a clear duty to preserve Rosenblit's medical records, the court turned to the extent of the harm suffered by Rosenblit and concluded that "even the relatively low out-of-pocket expenses of additional discovery, combined with the additional legal preparation required, sufficiently satisfy the elements of damage and disruption to support the cause of action." Although the court affirmed the fraudulent concealment verdict, it exercised original jurisdiction under Rule 2:10-5 and remitted the verdict to $50,000. The court also affirmed the denial of Dr. Zimmerman's motion for a new trial conditioned on Rosenblit's acceptance of the remittitur. In effect, the court affirmed, as modified, the judgment of liability for fraudulent concealment of evidence.

In a dissenting opinion, Judge Stern disagreed with the majority that the fraudulent concealment judgment could be sustained, noting that Rosenblit always had a copy of her unaltered medical chart. Under those circumstances, he reasoned that Dr. Zimmerman's destruction of the chart did not impair Rosenblit's ability to prove her malpractice case. Her additional litigation costs, according to Judge Stern, were inadequate to meet the element of damage necessary to prevail on the fraudulent concealment tort. He concluded that "the ability to recover sanctions for the time and costs related to the discovered misconduct should preclude a finding that these costs also constitute ?damages' for purposes of the law of spoliation." The matter came to this Court by way of a petition for certification and an appeal as of right. We granted Rosenblit's petition, 163 N.J. 11 (2000), on the question whether the trial court, in the malpractice action, erred by excluding evidence of Dr. Zimmerman's deliberate alteration and destruction of her medical records. Dr. Zimmerman's appeal as of right, under Rule 2:2-1(a)(2), deals with the question whether Rosenblit successfully met the elements of a claim for fraudulent concealment or spoliation.


Spoliation, as its name implies, is an act that spoils, impairs or taints the value or usefulness of a thing. Black's Law Dictionary 1409 (7th ed. 1999). In law, it is the term that is used to describe the hiding or destroying of litigation evidence, generally by an adverse party. Bart S. Wilhoit, Comment, Spoliation of Evidence: The Viability of Four Emerging Torts, 46 UCLA L. Rev. 631, 633 (1998).

When spoliation occurs, the law has developed a number of civil remedies,*fn2 the purpose of which is to make whole, as nearly as possible, the litigant whose cause of action has been impaired by the absence of crucial evidence; to punish the wrongdoer; and to deter others from such conduct. Steffen Nolte, The Spoliation ...

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