More on spoliation.

Everything in the Nov. 2005 article "The Wild and Wooly World of Inferences and Presumptions--When Silence is Deafening" is essentially moot or stale based upon the recent Supreme Court ruling, Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005). RICHARD J. DIAZ, Coral Gables

Author's Response:

The Florida Supreme Court's recent decision in Martino v. Wal-Mart Stores, Inc., stands primarily for the proposition that an independent spoliation cause of action will not lie against a first party defendant. It does not address situtions where a party merely fails to come forward with available physical evidence. There is language in Martino stating that a Valcin presumption and sanctions are available remedies in the case of spoliation as opposed to an independent cause of action for spoliation. The recent article should be read with this case in mind when dealing with situations involving the destruction of physical evidence.

DANIEL MORMAN, Tampa