The law in Pennsylvania is well settled as to defining and sanctioning 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.” Pyeritz v. Com., 613 Pa. 80, 88 n.4, 32 A.3d 687, 692 n.4 (2011), quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999), citing in turn Black’s Law Dictionary 1401 (6th ed.1990). “A plaintiff has a general duty to preserve relevant evidence where: (1) the plaintiff knows that litigation against the defendants is pending or likely; and (2) it is foreseeable that discarding the evidence would be prejudicial to the defendants.” Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1270-71 (Pa.Super.,2001), citing Baliotis v. McNeil, 870 F.Supp. 1285, 1290 (M.D.Pa.1994). See also, Pennsylvania Trust Co. v. Dorel Juvenile Group, Inc. 2011 WL 2789336, at 5 (E.D.Pa., 2011) (“A duty to preserve evidence arises when the party knows that litigation is pending or likely, and it is foreseeable that discarding the evidence would be prejudicial to the other party”, citing Creazzo v Medtronic. Inc., 903 A.2d 24, 29 (Pa.Super. 2006)).
In a number of recent cases we’ve defended where the cost of future medical care was an item of claimed damages by the plaintiff, there were proposals by some enterprising defendants to argue at trial that the costs of future care (such as plaintiffs’ very expensive Life Care Plans) could be reduced by the terms of the federal Affordable Care Act, the effect of which could dramatically lower that typically-high item of special damages. Because (at least generally speaking) (1) the application of the ACA is federally mandated, (2) the ACA carries a wide array of mandated benefits, and (3) its costs to a user are both relatively predictable, and lower than the charged expenses for medical and ongoing care, the thinking was that the expense of the ACA benefits to the plaintiff could be shown to be far lower than the anticipated expense the medical provider or Life Care Planner would describe. Such an approach was attempted at trial by defendants in the Philadelphia County Court of Common Pleas case of Deeds v. University of Pennsylvania, 110 A.3d 1009 (Pa.Super. 2015), a medical malpractice action alleging a failure to diagnose that culminated in severe birth defects of the minor plaintiff. At trial, the court permitted the defendant to “inform the jury that [the minor plaintiff’s] substantial medical needs were all being attended to at little to no cost to [the] legal guardian due to the existence of state and federal education and medical benefits programs,” in the form of Medicaid and the ACA.