Adverse Inferences and Adverse Presumptions as Remedies for Missing Evidence
This article discusses the use of adverse inferences and adverse presumptions, which are possible remedies in Florida civil cases, when evidence in the possession of one party to the action is lost, misplaced, or destroyed. First, two important Florida Supreme Court cases on the issue are discussed. Second, the circumstances warranting the imposition of an adverse inference or adverse presumption are discussed.
Third, the test the moving party must establish in order to obtain an adverse inference or adverse presumption is discussed, as well as, the difference between the two remedies. Finally, this article concludes with the form instructions, found in the Florida Standard Civil Jury Instructions, used to instruct juries on the significance of adverse inferences and adverse presumptions.
Florida Supreme Court Precedent
The current view on adverse inferences and adverse presumptions arose out of two Florida Supreme Court cases. In Pub. Health Tr. v. Valcin, 507 So. 2d 596, 599 (Fla. 1987), the Florida Supreme Court “adopted a rebuttable presumption of negligence in a medical malpractice action premised on a showing that missing documents hindered the plaintiff’s ‘ability to establish a prima facie case.’” Seaway Biltmore, Inc. v. Abuchaibe, 348 So. 3d 23, 26 (Fla. 3d DCA 2022).
“According to Valcin, where evidence necessary to prove a prima facie case is missing due to actions of a party, an essential element of a claim may be presumed, shifting the burden to the opposing party to dis-prove that element.” Seaway Biltmore, Inc., 348 So. 3d at 26–27. “In those extremely rare instances that the evidence establishes an intentional interference with a party’s access to critical … records, a wide range of sanctions is available to the trial court under Florida Rule of Civil Procedure 1.380(b)(2).” Id. at 27 (quoting Valcin, 507 So. 2d at 599).
“In Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346 (Fla. 2005), the Florida Supreme Court further explained that the presumption only applied when ‘the absence of the records hinders [the plaintiff’s] ability to establish a prima facie case.’” Seaway Biltmore, Inc., 348 So. 3d at 27. “This rebuttable presumption shifted the burden of proof under section 90.302(2) so that the presumption ‘is not overcome until the trier of fact believes that the presumed [negligence] has been overcome by whatever degree of persuasion is required by the substantive law of the case.’” Id. (alternation in original) (quoting Valcin, 507 So. 2d at 600–01).
Circumstances Warranting Adverse Inferences or Adverse Presumptions
“First-party spoliation occurs when a party to the action ‘lost, misplaced, or destroyed’ evidence.” Adamson v. R.J. Reynolds Tobacco Co., 325 So. 3d 887, 894 (Fla. 4th DCA 2021) (quoting Martino, 908 So. 2d at 345 n.2). “[W]hen a party fails to preserve evidence in its custody [the appropriate sanction] depends on the willfulness or bad faith, if any, of the party responsible for the loss of the evidence, the extent of prejudice suffered by the other party or parties, and what is required to cure the prejudice.” Pena v. Bi-Lo Holdings, LLC, 304 So. 3d 1254, 1257 (Fla. 3d DCA 2020) (alternation in original) (quotation omitted).
“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 under Florida Rule of Civil Procedure 1.380(b)(2).’” Adamson, 325 So. 3d at 894 (quoting Valcin, 507 So. 2d at 599). “Chief among these sanctions are the adverse evidentiary inferences and adverse presumptions found in the case law.” Pena, 304 So. 3d at 1257 (quoting Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251, 1256 (Fla. 4th DCA 2003)). “Because adverse inferences can invade the province of the jury, such instructions are reserved for circumstances where the normal discovery procedures have gone seriously awry.” Id. (quotation omitted).
The Test for Adverse Inferences or Adverse Presumptions
“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.” Adamson, 325 So. 3d at 894 (quoting Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006)). See also, Pena, 304 So. 3d at 1257 (same). “The first threshold question for the court before imposing a spoliation remedy is whether the evidence existed at one time.” Adamson, 325 So. 3d at 894.
“The second threshold question for the court is whether the spoliator had a duty to preserve the evidence.” Adamson, 325 So. 3d at 895. “Because a duty to preserve evidence does not exist at common law, the duty must originate either in a contract, a statute, or a discovery request.’” Pena, 304 So. 3d at 1257 (quotation omitted). Courts have also held that “[a] duty to preserve evidence exists in ‘circumstances when a party should reasonably foresee litigation.’” Adamson, 325 So. 3d at 895 (quoting Detzner, 172 So. 3d at 391 (Fla. 2015)).
The Third District has stated that if the moving party is alleging a duty based on a discovery request, “[w]here a party has never been instructed by the court to comply with any discovery request, sanctions for noncompliance are inappropriate.” Pena, 304 So. 3d at 1257 (quotation omitted). “This is because, ‘[t]he essential reason for a spoliation claim is its deterrent effect on miscreant defendants. This purpose is served only when an actual duty owed by a defendant to a plaintiff has been willfully or recklessly disregarded.’” Id. (quotation omitted).
If there was a duty to preserve the evidence and the party negligently destroyed that evidence, an adverse presumption is available, which creates a rebuttable presumption of liability against that party. “[W]hen essential evidence is unavailable due to a party’s negligence, a rebuttable presumption arises in favor of the other party.” Adamson, 325 So. 3d at 894. See also, Seaway Biltmore, Inc., 348 So. 3d at 27 (citing League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 391 (Fla. 2015) (“If the evidence was negligently destroyed, a rebuttable presumption of liability may arise.”).
If there was no duty to preserve the evidence and the party negligently destroyed the evidence, an adverse presumption would be unavailable against that party but an adverse inference may still be available. “Significantly, the Florida Supreme Court stated that ‘[e]ven 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.’” Adamson, 325 So. 3d at 895 (quoting Detzner, 172 So. 3d at 391). See also, Seaway Biltmore, Inc., 348 So. 3d at 27 (same).
“Under Detzner and Golden Yachts, an adverse inference may arise even in the absence of a duty to preserve evidence.” Adamson, 325 So. 3d at 895. “Unlike an adverse presumption instruction, where the court must find the spoliator was duty-bound to preserve the evidence, 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.” Id. (quotation omitted). See also, Golden Yachts, Inc., 920 So. 2d at 781 (“[A]n 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.”).
At this point, “[t]he distinction between the two instructions is important.” Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 394 (Fla. 2d DCA 2012). “A presumption differs from an inference.” Palmas Y Bambu, S.A. v. E.I. Dupont De Nemours & Co., 881 So. 2d 565, 582 (Fla. 3d DCA 2004). “An inference is a logical deduction of fact that the trier of fact draws from existence of another fact or group of facts. Whether the inferred fact is found to exist will be decided by the trier of fact.” Id. (quotation omitted) (emphasis added).
“A presumption is stronger; it compels the trier of fact to find the presumed fact if it finds certain basic facts to be present. Even if a court finds that a presumption is not present in a particular situation, an inference of the same fact can be drawn if it is supported logically by the evidence.” Palmas Y Bambu, S.A., 881 So. 2d at 582 (quotation omitted) (emphasis added). Thus, from the moving party’s perspective, an adverse presumption is better than an adverse inference.
“A ‘Valcin presumption shifts the burden of proof to ensure that a jury decides the issue of negligence’ thereby ‘suppl[ying] an essential element of the case.’” Osmulski, 93 So. 3d at 394 (quotation omitted). Conversely, “‘[t]he adverse inference instruction does not relieve a party from its burden of proof.’” Pena, 304 So. 3d at 1257 (quoting Golden Yachts, Inc., 920 So. 2d at 780). “The adverse inference merely allows counsel to argue to the jury the inference that the evidence was lost because it was damaging to the opposing party’s case. The jury may accept or reject the inference as it sees fit.” Palmas Y Bambu, S.A., 881 So. 2d at 582.
“The third threshold question is whether the missing evidence was material to the other party’s claim or defense.” Adamson, 325 So. 3d at 895. “The task is unavoidably imperfect, inasmuch as, in the absence of the destroyed evidence, we can only venture guesses with varying degrees of confidence as to what that missing evidence may have revealed.” Id. (quotation omitted).
“Still, before a court will permit an adverse inference to be drawn, there must be ‘some showing indicating that the destroyed evidence would have been relevant to the contested issue.’” Adamson, 325 So. 3d at 895 (quotation omitted). “When evidence is destroyed in bad faith (i.e., intentionally or willfully), that fact alone is sufficient to demonstrate relevance.” Id. at 896 (quotation omitted). “By contrast, when the destruction is negligent, relevance must be proven by the party seeking the sanctions.” Id.
“The trial court should determine ‘whether there is any likelihood that the destroyed evidence would have been of the nature alleged by the party affected by its destruction.’” Adamson, 325 So. 3d at 896 (quotation omitted). “Where ‘a party loses the opportunity to identify such a particular document or documents likely to contain critical evidence,’ the prejudiced party ‘may be permitted an inference in his favor so long as he has produced some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.’” Id. (quotation omitted).
“Courts should take care ‘not to require too specific a level of proof,’ because ‘holding the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed evidence would subvert the prophylactic and punitive purposes of the adverse inference ….” Adamson, 325 So. 3d at 896 (quotation omitted).
Florida Standard Civil Jury Instructions
Florida Standard Civil Jury Instructions contain form instructions for instructing juries on the significance of adverse inferences and adverse presumptions.
“Instruction 301.11(a) … is the standard adverse inference instruction.” Adamson, 325 So. 3d at 895. “This instruction informs the jurors that they may, but are not required to, infer that missing evidence would be unfavorable to a party if the jury finds the following: (1) a party; (2) lost, destroyed, or otherwise made unavailable evidence while it was within that party’s possession, custody, or control; and (3) the evidence would have been material in deciding the disputed issues in this case.” Id. (quoting Fla. Std. Jury Instr. (Civ.) 301.11(a)).
“Instruction 301.11(a) is consistent with the notion that an adverse inference may arise even in the absence of a duty on the part of the spoliating party to preserve the missing evidence.” Adamson, 325 So. 3d at 895. “Entitlement to this instruction [301.11(a)] requires a factual proffer of three things: (1) a party; (2) destroyed or lost evidence within his possession or control; and (3) the evidence would have been material in deciding a disputed issue in the case.” Id. at 896.
The notes to Instruction 301.11(a) state, “[t]his instruction is not intended to limit the trial court’s discretion to impose additional or other sanctions or remedies against a party for either inadvertent or intentional conduct in the loss, destruction, mutilation, alteration, concealment, or other disposition of evidence material to a case.” Fla. Std. Jury Instr. (Civ.) 301.11(a), n.1.
Florida Standard Civil Jury Instruction 301.11(b) is the standard instruction for adverse presumptions. It reads, “[t]he court has determined that (name of party) had a duty to [maintain (describe missing evidence)] [keep a record of (describe subject matter as to which party had record keeping duty)]. (Name of party) did not [maintain (describe missing evidence)] [or] [keep a record of (describe subject matter as to which party had recordkeeping duty)].” Fla. Std. Jury Instr. (Civ.) 301.11(b).
Instruction 301.11(b) concludes, “[b]ecause (name of party) did not [maintain (describe missing evidence)] [or] [keep a record of (describe subject matter as to which party had a record keeping duty)], you should find that (name of invoking party) established [his/her] (describe applicable claim or defense) unless (name of party) proves otherwise by the greater weight of the evidence.” Fla. Std. Jury Instr. (Civ.) 301.11(b).
Citing Valcin, the notes to Instruction 301.11(b) state it, “applies only when the court has determined that there was a duty to maintain or preserve the missing evidence at issue and the party invoking the presumption has established to the satisfaction of the court that the absence of the missing evidence hinders the other party’s ability to establish its claim or defense.” Fla. Std. Jury Instr. (Civ.) 301.11(b), n.1.