# Kang v. Perri

> District Court, E.D. New York · September 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10306974

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306974

## How later opinions describe it (automated extraction)

- holding that “general objection[s] [are] insufficient to obtain de novo review by [a] district court”
- stating on motion for sanctions in personal injury suit based on spoliation of evidence that “there is no doubt that . . . the evidence was clearly relevant” when the plaintiff did not allow the defendant’s IME to examine him prior to spine surgery

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------
HOYEUN KANG and ADOLFO LOZADA
ROLDAN,

Plaintiffs, MEMORANDUM & ORDER
20-CV-746 (MKB) (PK)
v.

ROSEANN PERRI and MICHAEL GILLON,

Defendants.
--------------------------------------------------------------
MARGO K. BRODIE, United States District Judge:
Plaintiffs Hoyeun Kang and Adolfo Lozada Roldan commenced the above-captioned
action against Roseann Perri and Michael Gillon on August 12, 2019, in the Supreme Court of
the State of New York, Queens County, to recover damages for personal injuries sustained from
a motor vehicle collision. (Compl., annexed to Notice of Removal as Ex. 1, Docket Entry No.
1-1.) On February 11, 2020, Defendants removed the action to this Court. (Notice of Removal,
Docket Entry No. 1.) On December 21, 2020, Gillon moved for sanctions against Kang, (Def.’s
Mot. for Sanctions (“Def.’s Mot.”), Docket Entry No. 15), and Plaintiffs opposed the motion,
(Pls.’ Resp. to Mot. for Sanctions (“Pls.’ Resp.”), Docket Entry No. 22). On August 25, 2021,
Magistrate Judge Peggy Kuo sua sponte issued a report and recommendation, recommending
that the Court grant the motion for sanctions and impose an adverse inference instruction as a
sanction (the “R&R”). (R&R, Docket Entry No. 39.) Kang objects to the R&R, arguing that
Gillon’s motion did not meet the requirements for spoliation of evidence and therefore should
not be sanctioned. (Pls. Obj. to R&R (“Pl.’s Obj.”), Docket Entry No. 43.)1
For the reasons set forth below, the Court adopts the R&R in its entirety and grants
Defendants’ motion to for sanctions.

I. Background
The Court assumes the truth of the factual allegations in the Complaint for the purposes
of this Memorandum and Order.
Factual background
i. The car collision and Plaintiff’s surgery
On June 26, 2019, Plaintiff Kang was the driver of a vehicle that was involved in a
multi-car collision with the vehicles driven by Defendants. (Compl. ¶¶ 5, 9, 12, 14-17.) Plaintiff
alleges that as a result of the incident, he sustained injuries to his cervical spine, lumbar spine,
and right shoulder. (Pl.’s Bill of Particulars ¶ 10, annexed to Aff. of Ellen Greiper (“Greiper
Aff.”) as Ex. B, Docket Entry No. 15-3.) The injuries to his cervical spine are described as disc

herniations at C3-4, C4-5, C5-6, C6-7, C7-T1, and T1-2; possible disc herniation at T2-3; mild
central spinal stenosis at C3-4 through C5-6; and loss of the normal cervical lordosis. (Id.)
During discovery, Defendant Gillon learned that Kang’s cervical spine and left shoulder
were injured in a prior motor vehicle accident on September 17, 2014. (Greiper Aff. ¶ 4, Docket
Entry No. 15; Aff. of Jusun Yook (“Yook Aff.”) ¶ 11, Docket Entry No. 21.) The injuries to the
cervical spine were described as follows: “Straightening of the cervical spine, associated with
reversal of the lordotic curvature of the cervical spine is noted compatible with muscular spams.

1 Because the objections are not paginated, the Court refers to the page numbers assigned
by the electronic filing system.
Mild degree of bulging of annulus fibrosus is noted at C6-C7 level. Ventral bulging is also noted
at C5-6 level anteriorly.” (MRI Report dated Oct. 14, 2014, annexed to Yook Aff. as Ex. I,
Docket Entry No. 21-11; Yook Aff. ¶ 11; Verified Bill of Particulars dated Jan. 13, 2017,
annexed to Yook Aff as Ex. H , Docket Entry No. 21-10 ¶ 6, Docket Entry No. 21-10.)

In a Notice to Preserve and Maintain, dated April 20, 2020 (“Preservation Notice”),
Gillon directed Plaintiffs to “appear for independent medical examinations prior to undergoing
surgery in this matter” and stating that “defendants will seek sanctions for spoliation if such
examinations are not held before surgery.” (Greiper Aff. ¶ 5; Preservation Notice 1, annexed to
Greiper Aff. as Ex. D, Docket Entry No. 15-5.) Kang’s counsel acknowledged receipt of the
Preservation Notice by responding to defense counsel on that same day and stating, “Well
received.” (Greiper Aff. ¶ 5; Pl.’s Email Resp. to Preservation Notice (“Email dated Apr. 20,
2020”), annexed to Greiper Aff. as Ex. E, Docket Entry No. 15-6.)
On October 2, 2020, Kang’s worker’s compensation board approved Kang to undergo a
cervical discectomy. (Yook Aff. ¶ 17; Worker’s Compensation Approval, annexed to Yook Aff.

as Ex. O, Docket Entry No. 21-16.) At his deposition on October 6, 2020, when asked if anyone
had recommended neck surgery, Kang testified that his doctor suggested that he undergo a
“[d]iscectomy.” (Tr. of Hoyeun Kang Dep. (“Dep. Tr.”) 87:15–88:16, annexed to Yook Aff. as
Ex. N., Docket Entry No. 22-3; Yook Aff. ¶ 16.) He did not testify that he would be undergoing
such surgery or when.
On October 31, 2020, Kang underwent a cervical spine discectomy, which procedure
included (1) Discectomy C5-6, (2) Nucleus pulpous ablation, and (3) annuloplasty. (Pl.’s Suppl.
Bill of Particulars ¶ 11, annexed to Yook Aff. as Ex. P, Docket Entry No. 21-17.) Kang did not
notify Gillon before undergoing this procedure. (Greiper Aff. ¶ 6.) In a Supplemental Bill of
Particulars dated November 13, 2020, Kang informed Defendants of this surgery. (Yook Aff.
¶ 18; Pl.’s Suppl. Bill of Particulars ¶ 11.)
ii. Defendant’s motion for sanctions
On November 18, 2020, Gillon filed a motion for discovery, claiming that Kang

“engaged in spoliation, by undergoing surgery without [first] allowing the [Independent Medical
Examination] to take place.” (Mot. for Discovery 1, Docket Entry No. 14.) On December 1,
2020, Gillon served Kang with a notice to schedule an Independent Medical Examination
(“IME”) for January 19, 2021. (Notice of Designation, annexed to Yook. Aff. as Ex. Q, Docket
Entry No. 21-18.) On December 7, 2020, the Court held a hearing and granted Gillon’s request
for leave to file a motion for sanctions. (Min. Order dated Dec. 7, 2020.)
On December 21, 2020, Gillon filed his motion for sanctions, seeking dismissal of
Kang’s complaint, preclusion of Kang’s cervical spine claim or of evidence of those injuries at
trial, or an adverse inference charge based on Kang’s destruction of evidence. (Def.’s Mem. in
Supp. of Def.’s Mot. 3, 15, Docket Entry No. 15-1.) Judge Kuo held a motion hearing on

February 5, 2021, at which Kang’s counsel acknowledged that he received the Preservation
Notice but provided no explanation for not notifying defense counsel before Kang underwent the
cervical discectomy. (Min. Entry dated Feb. 8, 2021.) To assist the court in determining
whether the surgery resulted in the loss of any evidence relevant to Gillon’s defense, Judge Kuo
granted Gillon leave to supplement his motion for sanctions by indicating what specific
evidence, if any, was no longer available because of the cervical discectomy. (Id.) Judge Kuo
also directed Kang to make himself available for a medical examination by a doctor selected by
Gillon. (Id.)
On April 12, 2021, Gillon’s medical expert Dr. Yong H. Kim conducted an examination
of Kang, and on April 26, 2021, Gillon filed his supplemental brief, attaching Dr. Kim’s report
(the “IME Report”). (Def.’s Suppl. Brief, Docket Entry No. 30; IME Report, annexed to Def.’s
Suppl. Br. as Ex. A, at 7-12, Docket Entry No. 30.) Dr. Kim reported that he was “unable to

determine or evaluate [Kang]’s complaints of ongoing neck pain and right upper extremity
symptoms that reportedly developed immediate[ly] following the …accident” because Kang
underwent the surgery “with reported significant resolution of his symptoms.” (IME Report 10.)
Dr. Kim’s examination of Kang’s cervical spine showed “no objective or subjective issues in his
cervical spine.” (Id.) According to Dr. Kim, by having the cervical discectomy performed, “not
only the content of the nucleus area of [Kang’s spinal] disc at C5-6 was disrupted, but it also
permanently disrupted and changed the overall structure of the annulus, the outer lining of the
disc.” (Id. at 11.) The cervical discectomy “produce[d] changes with respect to the overall
characteristics of the disc and its ability to load and weight bear and produce range of motion
compared to the preoperative state.” (Id.) Kang filed a supplemental opposition brief on May 3,

2021. (Pl.’s Suppl. Opp’n, Docket Entry No. 31.)
Report and recommendation
Judge Kuo recommended that that Court (1) consider the imposition of sanctions under
the Court’s inherent power, (2) find that there was spoliation of evidence, and (3) impose an
adverse inference instruction as the appropriate remedy for spoliation. (See R&R 5–15.)
First, Judge Kuo recommended that the Court consider imposing sanctions under its
inherent authority although Gillon moved for sanctions pursuant to Rules 26(b), 37(b), and 37(c)
of the Federal Rules of Civil Procedure. (Id. at 5.) Judge Kuo found that because Kang was “not
directed to comply with a court order,” the Court should evaluate “whether sanctions are
appropriate under the Court’s inherent power.” (Id. (citing Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 108–09 (2d Cir. 2002)).)
Next, Judge Kuo found that Kang engaged in spoliation of evidence by undergoing
cervical discectomy without first notifying Gillon because he (1) “had an obligation to preserve

evidence of his medical condition” because he received “express notice that evidence of his
medical condition was considered to be relevant when he was served with the Preservation
Notice” and he “admits that he received the Preservation Notice and did not raise any objection
to it,” (id. at 6); (2) “acted at least negligently when he failed to preserve and maintain evidence
of his medical condition and did not notify Defendants before taking action that could potentially
destroy such evidence,” (id. at 8); and (3) the evidence was “relevant to Defendant Gillon’s
defense on the issue of causation” because it would have enabled him “to determine whether
Plaintiff Kang’s alleged injuries in 2019 were non-existent, pre-existing, new, or exacerbated by
the accident,” (id. at 10).
Finally, Judge Kuo found that Kang’s spoliation of evidence (1) does not warrant

dismissal of the Complaint because he “did not engage in a pattern of violating court orders or
repeatedly failing to appear at scheduled IMEs” and “the surgery affected only his cervical
spine” and does not affect his “additional claims related to injuries to the lumbar spine and right
shoulder,” (id. at 12); (2) does not warrant preclusion of evidence of his cervical spine injuries
because (a) he “provided no explanation for his failure to comply with the Preservation Notice,”
(b) “[e]vidence of [his] cervical spine injuries [is] crucial to his claim regarding those injuries”
and thus precluding it “would amount to dismissal of his cervical spine claim,” (c) “[t]he
prejudice to Defendant Gillon caused by Plaintiff Kang’s spoliation of his pre-surgery cervical
spine condition is less significant” because the spoliation was only of evidence that Defendant
“could have obtained before the surgery, not of all evidence regarding [Plaintiff’s] cervical spine
injuries,” and (d) “the imposition of an adverse inference instruction at trial . . . is sufficient to
remedy the prejudice caused to Defendant Gillon,” (id. at 13–14); and (3) does warrant an
adverse inference instruction because “Kang’s destruction of evidence . . . deprived Defendant

Gillon of the ability to explore whether Plaintiff Kang had any cervical spine injuries after the
2019 accident, the extent of any such injuries[,] and whether such injuries were pre-existing or
related to the earlier accident in 2014,” (id. at 15).
Kang’s objections to the R&R
Kang does not object to the portions of the R&R determining that he had a duty to
preserve the evidence of his medical condition, that Kang’s alleged spoliation does not warrant
dismissal, and that Kang’s alleged spoliation doses not warrant preclusion. (See Pl.’s Obj. 1.)
Kang argues, however, that the R&R wrongly concludes that: (1) he had a culpable state of mind
by undergoing a cervical spine injury before appearing for an IME, (see id. at 2–4); (2) Gillon
demonstrated that the condition of the cervical spine prior to surgery was relevant to his defense,

(see id. at 4–6); and (3) an adverse inference is the appropriate remedy, (see id. at 6–7).
With regard to culpable state of mind, Kang objects to the R&R’s determination that
“Plaintiff Kang acted at least negligently when he failed to preserve and maintain evidence of
medical condition and did not notify Defendants before taking action that could potentially
destroy such evidence.” (Id. at 2 (quoting R&R 8).) Kang argues that his current medical
records from the accident and prior medical records from before the accident, including
independent test results, MRI reports, and doctor examinations, preserve the condition of the
cervical spine before the surgery. (Id.) Kang also objects to the R&R determination that he “did
not notify Defendants before taking action that could potentially destroy such evidence.” (Id. at
3 (quoting R&R 8).) Kang argues that he notified defense counsels of a cervical spine surgery
before he underwent the surgery when he indicated that “[he] might consider it because [he does
not] like injection in the first place.” (Id. (quoting Dep. of Hoyeun Kang (“Dep. Tr.”) 84:24–
85:9, annexed to Pls.’ Resp. as Ex. C, Docket Entry No. 22-3).)

As to relevance to Gillon’s defense, Kang objects to the R&R’s determination that Gillon
has demonstrated that the condition of the cervical spine prior to surgery was relevant to his
defense. (See id. at 4.) Kang argues that Dr. Kim’s report is “arbitrary, inconsistent and
overbroad for imposition of sanctions.” (Id.) In support, Kang contends that (1) Dr. Kim’s
finding as to his inability to determine Kang’s neck pain following the accident due to the
surgery is inconsistent and arbitrary, (id. at 4–5); (2) Dr. Kim’s findings as to the causation of the
cervical spine injuries are contradictory to his MRI findings, (id. at 5–6); and (3) Dr. Kim’s
finding that the surgery has undermined his ability to determine the causation of the cervical
spine injuries is overbroad, (id. at 6).
Finally, Kang argues that the imposition of an adverse inference is inappropriate because

he did not have a culpable state of mind and Gillon failed to establish through Dr. Kim’s report
that the condition of the cervical spine before surgery is relevant to his defense.
Gillon did not respond to Kang’s objections.
II. Discussion
Standards of review
i. Report and recommendation
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation
to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.
2015). The district court may adopt those portions of the recommended ruling to which no
timely objections have been made, provided no clear error is apparent from the face of the

record. See John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1
(E.D.N.Y. Nov. 24, 2015) (applying the clear error standard when no objections to the magistrate
judge’s report and recommendation were filed). The clear error standard also applies when a
party makes only conclusory or general objections. Fed. R. Civ. P. 72(b)(2) (“[A] party may
serve and file specific written objections to the [magistrate judge’s] proposed findings and
recommendations.”); see also Colvin v. Berryhill, 734 F. App’x 756, 758 (2d Cir. 2018)
(“[M]erely referring the court to previously filed papers or arguments does not constitute an
adequate objection under . . . Fed. R. Civ. P. 72(b).” (quoting Mario v. P & C Food Mkts., Inc.,
313 F.3d 758, 766 (2d Cir. 2002))); Benitez v. Parmer, 654 F. App’x 502, 503–04 (2d Cir. 2016)
(holding that “general objection[s] [are] insufficient to obtain de novo review by [a] district

court”).
Whether clear error review or de novo review applies when an objecting party reiterates
the arguments made to the magistrate judge is unclear. While the Second Circuit has suggested
that clear error review is appropriate if a party’s objection to a magistrate judge’s report and
recommendation repeats arguments already presented to and considered by the magistrate judge,
see Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers or arguments
does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) . . . .”), the Second
Circuit has more recently stated that it is “skeptical” that the clear error standard would be
appropriate when the objection is based on a previously asserted argument, see Moss v. Colvin,
845 F.3d 516, 520 n.2 (2d Cir. 2017) (“[W]e are skeptical that clear error review would be
appropriate in this instance, where arguably ‘the only way for [the plaintiff] to raise . . .
arguments [on that point] [was] to reiterate them.’” (third and fourth alterations in original) (first
quoting Watson v. Geithner, No. 11-CV-9527, 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27,

2013); and then citing 28 U.S.C. § 636(b)(1))). See also Joseph v. Korn, No. 19-CV-7147, 2021
WL 912163, at *1 (E.D.N.Y. Mar. 9, 2021) (“Although ‘[o]bjections that reiterate arguments
considered and rejected by the magistrate are reviewed for clear error,’ in an abundance of
caution, this [c]ourt reviews [the] [p]laintiff’s arguments de novo.” (first quoting Cruz v. Colvin,
No. 13-CV-1267, 2014 WL 5089580, at *1 (S.D.N.Y. Sept. 25, 2014); and then citing Parker v.
Comm’r of Soc. Sec’y Admin., No. 18-CV-3814, 2019 WL 4386050, at *6 (Sept. 13, 2019)));
Harewood v. New York City Dep’t of Educ., No. 18-CV-5487, 2021 WL 673476, at *6 (S.D.N.Y.
Feb. 22, 2021) (“[W]hen the objections simply reiterate previous arguments or make only
conclusory statements, the court should review such portions of the report only for clear error.”
(first citing Dickerson v. Conway, No. 08-CV-8024, 2013 WL 3199094, at *1 (S.D.N.Y. June 25,

2013); and then citing Kirk v. Burge, 646 F. Supp. 2d 534, 538 (S.D.N.Y. 2009))); Castorina v.
Saul, No. 19-CV-991, 2020 WL 6781078, at *1 (S.D.N.Y. Nov. 18, 2020) (“While courts in this
[d]istrict sometimes state that objections that ‘simply reiterate [the] original arguments’ merit
only clear error review, this rule lacks support in either 28 U.S.C. § 636(b)(1)(C) or Rule
72(b)(2) of the Federal Rules of Civil Procedure. The Second Circuit has expressed similar
skepticism.” (alteration in original) (citations omitted)).
ii. Inherent power to sanction
A court has the inherent power to sanction a party “for conduct which abuses the judicial
process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991); Ceglia v. Zuckerberg, 600 F.
App’x 34, 36 (2d Cir. 2015) (“A court has ‘inherent power’ to ‘fashion an appropriate sanction
for conduct which abuses the judicial process.’” (quoting Chambers, 501 U.S. at 44–45)).
“Because of their very potency, inherent powers must be exercised with restraint and discretion.”
Chambers, 501 U.S. at 44; United States v. HSBC Bank USA, N.A., 863 F.3d 125, 136 (2d Cir.

2017) (quoting Chambers, 501 U.S. at 44). “Sanctionable conduct must be proven by clear and
convincing evidence and the district court must make a specific finding of bad faith.”
Amerisource Corp. v. RX USA Int’l Inc., No. 02-CV-2514, 2010 WL 2730748, at *5 (E.D.N.Y.
July 6, 2010) (citing DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 136 (2d Cir.
1998)), aff’d 432 F. App’x 25 (2d Cir. 2011); see also Yukos Cap. S.A.R.L. v. Feldman, 977 F.3d
216, 235 (2d Cir. 2020) (“[C]lear and convincing evidence of bad faith is a prerequisite to an
award of sanctions under the court's inherent power.”). “Moreover inherent-power sanctions are
appropriate only if there is clear evidence that the conduct at issue is (1) entirely without color
and (2) motivated by improper purposes.” Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 564
F.3d 110, 114 (2d Cir. 2009); see also Huebner v. Midland Credit Mgmt., Inc., 897 F.3d 42, 56

(2d Cir. 2018) (quoting Wolters Kluwer Fin. Servs. Inc., 564 F.3d at 114); Brikman v. Hecht, No.
19-CV-5143, 2021 WL 3741538, at *3 (E.D.N.Y. Aug. 24, 2021) (quoting Wolters Kluwer Fin.
Servs. Inc., 564 F.3d at 114). “Clear and convincing evidence is evidence that makes the fact to
be proved ‘highly probable.’” RKI Constr., LLC v. WDF Inc., No. 14-CV-1803, 2020 WL
6545915, at *21 (E.D.N.Y. Nov. 6, 2020) (quoting Abernathy-Thomas Eng’g Co. v. Pall Corp.,
103 F. Supp. 2d 582, 595–96 (E.D.N.Y. 2000)). “A finding of bad faith, and a finding that
conduct is without color or for an improper purpose, must be supported by a high degree of
specificity in the factual findings.” Wolters Kluwer Fin. Servs. Inc., 564 F.3d at 114.
Unopposed portions of the R&R
No party has objected to the recommendations that the Court: (1) find that Kang had a
duty to preserve the evidence of his medical condition, (2) that Kang’s alleged spoliation does
not warrant dismissal, and (3) that Kang’s alleged spoliation doses not warrant preclusion. The

Court has reviewed the unopposed portions of the R&R and, finding no clear error, adopts the
recommendations pursuant to 28 U.S.C. § 636(b)(1).
Spoliation of evidence
“Spoliation is the destruction or significant alteration of evidence, or the failure to
preserve property for another’s use as evidence in pending or reasonably foreseeable
litigation.” Twitty v. Salius, 455 F. App’x 97, 99 (2d Cir. 2012) (quoting West v. Goodyear Tire
& Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). “The spoliation of evidence germane ‘to
proof of an issue at trial can support an inference that the evidence would have been unfavorable
to the party responsible for its destruction.’” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d
93, 107 (2d Cir. 2001) (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)). “In

borderline cases, an inference of spoliation, in combination with ‘some (not insubstantial)
evidence’ for the plaintiff’s cause of action, can allow the plaintiff to survive summary
judgment.” Wood v. Pittsford Cent. Sch. Dist., No. 07-CV-0892, 2008 WL 5120494, at *2 (2d
Cir. Dec. 8, 2008) (quoting Byrnie, 243 F.3d at 107); see also Kronisch, 150 F.3d at 128 (“We do
not suggest that the destruction of evidence, standing alone, is enough to allow a party who has
produced no evidence — or utterly inadequate evidence — in support of a given claim to survive
summary judgment on that claim. But at 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.”).
To succeed on a spoliation motion, the moving party must show:
(1) that the party having control over the evidence had an obligation
to preserve it at the time it was destroyed; (2) that the records were
destroyed with a culpable state of mind; and (3) that the destroyed
evidence was relevant to the party’s claim or defense such that a
reasonable trier of fact could find that it would support that claim or
defense.

Klipsch Grp., Inc. v. ePRO E-Com. Ltd., 880 F.3d 620, 628 (2d Cir. 2018) (quoting Chin v. Port
Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012)). “The obligation to preserve evidence
arises when the party has notice that the evidence is relevant to litigation or when a party should
have known that the evidence may be relevant to future litigation.” In Re Terrorist Bombings of
U.S. Embassies in E. Africa, 552 F.3d 93, 148 (2d Cir. 2008) (quoting Fujitsu Ltd. v. Fed. Exp.
Corp., 247 F.3d 423, 436 (2d Cir. 2001)). “Once a court has concluded that a party was under an
obligation to preserve the evidence that it destroyed, it must then consider whether the evidence
was intentionally destroyed, and the likely contents of that evidence.” Klipsch Grp., Inc., 880
F.3d at 630 (quoting Fujitsu Ltd., 247 F.3d at 436); see also United States v. Barnes, 411 F.
App’x 365, 368 (2d Cir. 2011) (same). “The determination of an appropriate sanction for
spoliation, if any, is confined to the sound discretion of the trial judge, and is assessed on a case-
by-case basis.” Fujitsu Ltd., 247 F.3d at 436 (first citing West v. Goodyear Tire & Rubber Co.,
167 F.3d 776, 779 (2d Cir. 1999); and then citing United States v. Grammatikos, 633 F.2d 1013,
1019–20 (2d Cir. 1980)); see also Mazzei v. Money Store, 656 F. App’x 558, 559–60 (2d Cir.
2016) (“[A] district court may, at its discretion, grant an adverse inference jury instruction
insofar as such a sanction would ‘serve the threefold purpose of (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.’” (quoting Byrnie, 243 F.3d at 107)).
The Court first addresses Kang’s objection as to whether he had a culpable state of mind,

and next addresses whether the evidence in question is relevant to Gillon’s defense. The Court
does not address whether Kang had an obligation to preserve the evidence as Kang does not
object to Judge Kuo’s recommendation that he did.
1. Culpable state of mind
Kang opposes the R&R’s finding that he acted with a culpable state of mind on the
grounds that, because his current medical records from the accident and prior medical records
from before the accident preserve the condition of the cervical spine before the surgery, the
evidence at issue is preserved. (See Pl.’s Obj. 2.) In addition, Kang objects to the R&R on the
grounds that he notified defense counsels of a cervical spine surgery before he underwent the
surgery. (Id.)

“Once a court has concluded that a party was under an obligation to preserve the
evidence that it destroyed, it must then consider whether the evidence was intentionally
destroyed, and the likely contents of that evidence.” Klipsch Grp., Inc, 880 F.3d at 630 (quoting
Fujitsu Ltd, 247 F.3d at 436); see also Barnes, 411 F. App’x at 368 (same); Tomassini v. FCA
US LLC, No. 14-CV-1226, 2020 WL 1938834, at *3 (N.D.N.Y. Apr. 22, 2020)). “Even where
the preservation obligation has been breached, sanctions will only be warranted if the party
responsible for the loss had a sufficiently culpable state of mind.” Estate of Jackson v. County of
Suffolk, No. 12-CV-1455, 2014 WL 1342957, at *11 (E.D.N.Y. Mar. 31, 2014) (quoting In re
WRT Energy Sec. Litig., 246 F.R.D. 185, 195 (S.D.N.Y.2007)). Failures to preserve evidence
occur “along a continuum of fault — ranging from innocence through the degrees of negligence
to intentionality.” Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 267 (2d Cir.1999) (citation
and internal quotation marks omitted). A culpable state of mind “must, at a minimum, constitute
simple negligence.” Dataflow, Inc. v. Peerless Ins. Co., No. 11-CV-1127, 2013 WL 6992130, at

*6 (N.D.N.Y. June 6, 2013) (quoting Wade v. Tiffin Motorhomes, Inc., 686 F. Supp. 2d 174, 194-
95 (N.D.N.Y.2009)), report and recommendation adopted in pertinent part, No. 11-CV-1127,
2014 WL 148685 (N.D.N.Y. Jan. 13, 2014); Liberman v. FedEx Ground Package Sys., Inc., No.
09-CV-2423, 2011 WL 145474, at *4 (E.D.N.Y. Jan. 18, 2011) (“A ‘culpable state of mind’ can
mean ‘knowingly, even if without intent to breach a duty to preserve [the evidence], or
negligently.’” (alteration in original) (quoting Residential Funding Corp., 306 F.3d at 108)).
Judge Kuo properly concludes that Kang acted with a culpable state of mind because his
failure to notify Gillon prior to surgery constitutes negligence. It is undisputed that Kang was
aware of his duty to preserve the evidence of his medical condition. He received a Preservation
Notice on April 20, 2020, from Gillon directing him to “appear for independent medical

examinations prior to undergoing surgery in this matter” or else “defendants will seek sanctions
for spoliation if such examinations are not held before surgery,” (Greiper Aff. ¶ 5; Preservation
Notice 1), to which Kang’s counsel acknowledged, “Well received” (Greiper Aff. ¶ 5; Email
dated Apr. 20, 2020). At his deposition on October 6, 2020, Kang testified that “he might
consider [surgery],” but did not confirm that he would undergo surgery nor indicate when he
would do so. (Dep. Tr. 87:15–88:16.) Less than a month later, without notice to Gillon, Kang
underwent a cervical spine surgery that permanently disrupted his physiology. (Pl.’s Suppl. Bill
of Particulars ¶ 11; Greiper Aff. ¶ 6; IME Report 10.) There is nothing on the record to suggest
that Kang urgently required surgery due to a medical emergency. Nor does Kang provide any
reason or circumstance that would have prevented notice to Defendants prior to surgery. Kang’s
submission of other medical records related to the accidents does not rectify the destruction of
IME evidence because Gillon’s reasonable effort to proffer objective evidence remains
frustrated. Therefore, Kang’s failure to preserve evidence by way of undergoing a permanently

disruptive procedure — while on notice that such evidence was demanded for discovery —
constitutes, at a minimum, simple negligence sufficient to show a culpable state of mind. See
Tomassini, 2020 WL 1938834, at *3–4 (holding that plaintiff’s removal of a failing car part
constituted negligence consistent with a culpable state of mind because plaintiff “acted with the
purpose of removing [the failing part] from the vehicle,” knew that “they were the entire basis of
[the] lawsuit,” and “the evidence was, at a minimum, materially altered”); Martinez v. Nelson,
101 N.Y.S.3d 580, 584 (Sup. Ct. 2019) (holding that, in an action based on cervical spine
injuries, plaintiff’s election of non-emergency surgery without affording a defendant, who sent
notice for a pre-surgery IME, an opportunity to have the IME performed before the surgery
constitutes an act with a culpable state of mind).

2. Relevance to Gillon’s defense
Kang objects to Judge Kuo’s finding that evidence of Kang’s pre-operative cervical spine
condition is relevant to Gillon’s defense on the issue of causation. (Pl.’s Obj. 4–5.) Kang argues
that the R&R did not consider that the IME Report is “arbitrary, inconsistent[,] and overbroad for
imposition of sanctions.” (Id. at 4.) In support, Kang contends that the R&R overlooked several
flaws with Dr. Kim’s findings: (1) his conclusion that he was unable to “determine Plaintiff[’s]
. . . complaints of ongoing neck pain immediately following the subject accident due to the
cervical spine surgery” was arbitrary and inconsistent, (2) his finding as to “the causation of the
cervical spine injuries” contradicted MRI findings, and (3) his conclusion “that cervical spine
surgery has undermined his ability to determine the causation of the cervical spine injuries is
overbroad.” (Id. at 4.) First, Kang contends that Dr. Kim’s findings are contradictory because
on one hand, he states that “due to the cervical spine surgery[] he is unable to evaluate Plaintiff’s
ongoing neck pain,” but on the other hand “he gives his evaluation regarding ongoing neck pain

by opining that, upon his review of the MRI film of the cervical spine, Plaintiff Kang’s cervical
spine complaint is not correlated to his MRI findings.” (Id. at 5.) Next, Kang contends that Dr.
Kim’s conclusion that he is unable to reach a conclusion as to the causation of Kang’s injury
contradicts “his findings from his own review of the MRI film of the cervical spine” wherein he
stated that any abnormalities “to the C5-6 level (where the cervical spine [surgery] was
performed) are degenerative, rather than trauma related.” (Id. at 5.) Finally, Kang argues that
Dr. Kim’s finding that the “cervical spine surgery . . . undermined his ability to determine” the
cause of Kang’s cervical spine injuries is overbroad because Kang also sustained injuries to other
levels of the cervical spine which were not affected by the surgery. (Id. at 6.)
A party moving for spoliation sanctions must show that the “destroyed evidence was

relevant to the party’s claim or defense such that a reasonable trier of fact could find that it
would support th[eir] claim or defense.” Klipsch Grp., Inc., 880 F.3d at 628 (quoting Chin., 685
F.3d at 162); see also ComLab, Corp. v. Tire, 815 F. App’x 597, 600 (2d Cir. 2020) (quoting
Klipsch Grp., Inc., 880 F.3d at 628). “‘[R]elevant’ in this context means something more than
sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.”2 Residential
Funding Corp., 306 F.3d at 108–09; Warren v. City of N.Y. Dep’t of Corr. Med. Staff, No. 17-

2 Rule 401 of the Federal Rules of Evidence defines “relevant evidence” as evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence.
Fed. R. Evid. 401; see also Omega SA v. 375 Canal, LLC, 984 F.3d 244, 257 (2d Cir. 2021)
(quoting Fed. R. Evid. 401(a)).
CV-1125, 2021 WL 1163105, at *15 (E.D.N.Y. Mar. 26, 2021) (quoting Residential Funding
Corp., 306 F.3d at 108–09). “Rather, the party seeking an adverse inference must adduce
sufficient evidence from which a reasonable trier of fact could infer that ‘the destroyed [or
unavailable] evidence would have been of the nature alleged by the party affected by its

destruction.’” Residential Funding Corp., 306 F.3d at 109 (alteration in original) (quoting
Kronisch, 150 F.3d at 127); Lekomtsev v. City of New York, No. 16-CV-4530, 2020 WL
5878258, at *4 (E.D.N.Y. Oct. 2, 2020) (quoting Residential Funding Corp., 306 F.3d at 109).
“Courts must take care not to ‘hold[] the prejudiced party to too strict a standard of proof
regarding the likely contents of the destroyed [or unavailable] evidence,’ because doing so
‘would subvert the . . . purposes of the adverse inference, and would allow parties who have . . .
destroyed evidence to profit from that destruction.’” Residential Funding Corp., 306 F.3d at 109
(quoting Kronisch, 150 F.3d at 128); Herman v. City of New York, 334 F.R.D. 377, 389
(E.D.N.Y. 2020) (same).
The Court finds that the evidence as to Kang’s pre-operative cervical spine condition is

relevant to Gillon’s defense on the issue of causation. Kang brings a negligence claim against
Gillon, (see Compl. ¶¶ 1–26), and “[u]nder New York law, . . . a plaintiff must establish three
elements to prevail on a negligence claim: (1) the existence of a duty on defendant’s part as to
plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof,” Comba v.
United States, No. --- F. Supp.3d ---, ---, 2021 WL 1601157, at *3 (E.D.N.Y. Apr. 23, 2021)
(quoting Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 177 (2d Cir. 2013)).
Because Kang must prove causation of injury, evidence concerning Kang’s condition prior to
remedial surgery is relevant to Gillon’s defense. See id. at *10 (“[C]ontemporaneous findings of
injury are highly relevant to causation.” (quoting Crawford-Reese v. Woodard, 944 N.Y.S.2d
333, 336 (2012))).
Kang’s argument that the IME Report was deficient because it was replete with
inconsistencies or contradictions is unpersuasive. The alleged inconsistencies in the IME Report

are not true inconsistencies as to Dr. Kim’s ability to examine Kang. Dr. Kim states that he does
not see trauma-related injuries on examination of Plaintiff on April 12, 2021, but does see
degenerative disease-related injuries on MRI scans which were provided to him in medical
records. (See IME Report 8–10.) Dr. Kim notes from his own examination of Kang consistently
state that on the examination day, he was “unable to determine or evaluate the [Kang’s]
complaints of ongoing neck pain and right upper extremity symptoms that reportedly developed
immediate[ly] following the subject motor vehicle accident . . . , as the claimant has undergone a
percutaneous surgical procedure at the C5-6 level, with reported significant resolution of his
symptoms.” (Id. at 10.) Dr. Kim further stated that “the fact that [Kang] has undergone a
percutaneous surgical procedure to the C5-6 level prior to . . . examination, . . . undermines my

ability to accurately determine any causally-related issues with respect to the claimant’s cervical
spine.” (Id.)
Moreover, any inconsistencies in the IME Report do not negate Dr. Kim’s finding that an
examination of Kang’s condition pre-surgery was relevant to establish causation of his injury.
To the contrary, courts that have considered the issue have found that a plaintiff undergoing
surgery and depriving the defendants’ IME of the opportunity to examine them prior to surgery,
when the plaintiff was on notice of defendants’ desire to conduct an IME, constitutes spoliation
of relevant evidence. See Mangione v. Jacobs, 950 N.Y.S.2d 457, 467 (Sup. Ct. 2012) (“The
undersigned . . . 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.”), aff’d, 995 N.Y.S.2d 137 (2014); see also Rogers v. Averitt Express,
Inc., 215 F. Supp. 3d 510, 519 (M.D. La. 2017) (stating on motion for sanctions in personal
injury suit based on spoliation of evidence that “there is no doubt that . . . the evidence was

clearly relevant” when the plaintiff did not allow the defendant’s IME to examine him prior to
spine surgery); Baskerville v. Albertson’s, LLC, No. 15-CV-902, 2016 WL 7030446, at *2 (D.
Nev. Jan. 7, 2016) (“The court finds that [the plaintiff’s] pre-surgery spinal condition is relevant
to [the defendant’s] defense that the surgery was not the result of the incident that gave rise to the
instant action.”).
Accordingly, the Court finds that Judge Kuo correctly concluded that the now
unavailable evidence was relevant to Gillon’s defense.3

3 Kang states that he objects to Judge Kuo’s recommendation that an adverse inference
sanction should be imposed. (Pl.’s Obj. 6–7.) Kang argues that an “adverse inference
instruction is inappropriate” because he did not “have a culpable state of mind” and that Gillon,
“through submission of Dr. Kim’s [IME] Report, failed to establish that the condition of the
cervical spine before the cervical spine surgery is relevant to [his] defense.” (Id. at 7.) Because
Kang’s arguments as to why an adverse inference instruction sanction should not be imposed
reiterate the arguments already addressed in this Memorandum and Order, the Court does not
separately address these arguments. In addition, the Court finds that the imposition of an adverse
inference instruction is appropriate here to remedy the evidentiary imbalance created by
Defendant. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir.
2002) (“It makes little difference to the party victimized by the destruction of evidence whether
that act was done willfully or negligently. The adverse inference provides the necessary
mechanism for restoring the evidentiary balance.”).
III. Conclusion
For the foregoing reasons, the Court adopts the R&R in its entirety and grants
Defendants’ motion to for sanctions.
Dated: September 30, 2021
Brooklyn, New York
SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306974. Public record. Not legal advice.