Morrison Mahoney New York Partners Nicole Battisti and Arthur Liederman obtained a dismissal of an action in Florida state court against our client, a global medical device manufacturer based in Germany, in an action for personal injuries arising during a surgical procedure in Florida.  It was alleged that the tip of a pair surgical scissors broke causing serious injuries to the plaintiff.  The action asserted both product liability claims against the client and malpractice/negligence claims against the hospital.  During the period after the incident, the scissors had been sent by the hospital to the client for evaluation and repair.  The scissors were never repaired but were replaced by the hospital.  Subsequently they were destroyed by the client.  The plaintiff argued that the destruction of the scissors constituted spoilation. However, given that the hospital had confirmed the years that it had possession of the scissors, the claim against the manufacturer was barred by Florida’s statute of repose.  Physical possession of the scissors was unnecessary nor prejudicial to the plaintiff in addressing the statute of repose bar.  The plaintiff argued that the destruction of the scissors was prejudicial to plaintiff’s action against the hospital.  In opposition we argued that the finding that the statute applied as a matter of law would establish that the hospital was using the product beyond its useful life and that plaintiff would have a viable claim notwithstanding access to the scissors.  The court denied plaintiff’s request for sanctions (including dismissal) based on alleged spoilation, agreeing that the presence was immaterial to the primary defense to the product liability claim.  Consequently, the court granted the motion for summary judgment dismissing the claim against the client.  Arthur Liederman and Nicole Battisti of the New York office acted as counsel for the device manufacturer and prepared and argued the motion.