June 13, 2019 minnlawyer.com Vol. 93 No. 6 Discovery violations prompt adverse inference order By Barbara L. Jones amputation of his of the record is sealed. But public records [email protected] leg because it is im- include real estate documents verifying possible to pinpoint that Assist America founder and chairman A doctor who lost his leg after emergency when the leg could George W. Howard III and his wife live in a medical treatment in Mexico went badly no longer be saved condominium in Trump Tower in New York will have his case heard by a jury that may and that punitive purchased in 2007 for $11.5 million dollars. be assisted by the consequences of what the damages are not Assist America refused to participate in court saw as serious discovery violations. available without punitive damage discovery “and dragged The plaintiff will have the benefit of sev- Judge Donovan Frank an independent its feet every step of the way,” Rau noted in eral adverse inferences against defendant tort. April. “This Court warned Assist America Assist America as a sanction for its refusal It also argued that it did not have a duty that it would not tolerate its tactic of hi- to provide the plaintiffs with the company’s outside of the contract, an argument Frank jacking the discovery process as a means to operations manual from the time when the rejected because the existence of a contract mount a challenge to this Court’s decision accident occurred. does not preclude the existence of an inde- to permit pleading of a punitive damages The defendant claimed it could not locate pendent duty. claim,” he wrote. the manual. Summary judgment is inappropriate Nevertheless, Assist America failed to “Dr. Tholen looks forward to having his as to foreseeability and duty, Frank said. provide its operations manual that was in day in court to seek justice and proving his He said that “it is clear that Tholen has place at the time of the plaintiff’s accident. case against Assist America. Assist America alleged facts that could reasonably lead to The manual thus was not available during will now need to answer the allegations and the conclusion that Assist America owed depositions and the failure to produce it evidence to a jury at trial,” said his attor- the duty required of medical professionals, was intentional, knowing and part of its liti- ney, Patrick Arenz. [and] the scope of the duty owed remains gation strategy, Rau said. “More damning is The attorney for Assist America could not in question due to the expertise required to the fact that Assist America now admits its be reached for comment. resolve the issues related to the standard operations manual underwent changes in of care.” Frank noted that Assist America the months following Dr. Tholen’s incident Defendant’s ‘tactics’ said it made no medical judgments but also but failed to produce documents showing When a zip-lining expedition went wrong required the medical records for its perusal. what the changes were or why,” Rau said. and plaintiff Richard Tholen dislocated his Frank also said that the record at this The court determined that adverse in- knee, he asked Assist America to get him stage supports a conclusion that Assist ference orders would best remedy the back home for medical care. Assist America, America caused Tholen’s amputation and discovery obstruction and show that such an organization of which Tholen is a mem- other damages. a strategy is improper and unfitting for fed- ber, provides global emergency medical An order granted the addition of a pu- eral litigants. “This Court’s remedy best services, including evacuation. nitive damage claim in August 2018. addresses the improper conduct of Assist But not in this case. Assist America re- Frank said the punitive damage claim America as a litigant and the failures of fused assistance, saying the treatment he could proceed, determining that the record its counsel to educate and guide Assist was receiving was sufficient, forcing Tholen, provided evidence Assist America knew, America’s decision makers about the ne- himself a medical doctor, to get himself or should have known, that Tholen faced cessity of participating in an honest and home on a commercial flight. A month later, serious negative health outcomes by de- fair discovery processes,” Rau’s order states. his leg was amputated above the knee. laying proper care. The company claims its The adverse inferences are that the Tholen’s lawsuit sounds in both negli- obligation is limited to evacuation to the operations manuals provided insufficient gence and breach of contract. U.S. District nearest appropriate facility but it never information to properly decide whether to Court Judge Donovan Frank last week de- offered that assistance, Frank noted. The evacuate an Assist America member or to nied the defendant’s motion for summary Tholens believed that they would not re- decide whether a member was receiving judgment and upheld the sanctions ordered ceive any assistance with transport from appropriate care. by Magistrate Judge Steven Rau last April. Assist America, meaning that their choices The inferences also are that the manual Moving for summary judgment, Assist were to stay at the hospital where they be- was not sufficiently disseminated to the America argued that it should not be held lieved Tholen was receiving subpar care or employees to assist them in decisions about to a professional standard of care for neg- to take their chances with a commercial medical care and evacuation. ligence purposes. It also has maintained flight home, the judge said. The final inference is that Assist America that Tholen cannot establish that any ac- The evidence at the punitive damage has now altered its operations manual as a tion or inaction on its part resulted in the stage of the trial should be interesting. Much result of Dr. Tholen’s incident. Reprinted with permission of Minnesota Lawyer ©2019