Dismissal as a Sanction for Spoliation of Evidence
February 14, 2006
As it is often difficult to defend a product liability action when the product is no longer available for examination, manufacturer-defendants routinely look to the doctrine of spoliation of evidence for potential relief in such situations. The relief afforded for proving spoliation may be helpful although not dispositive, such as prompting a jury instruction adverse to the plaintiff, or monetary sanctions. However, many courts have imposed the ultimate sanction upon plaintiffs for spoliation of evidence – dismissal of the lawsuit. Federal Rule of Civil Procedure 37, as well as many of its state rule counterparts, allows for dismissal of an action as a discovery sanction, and a few states have even recognized spoliation of evidence as an independent tort. In certain situations, however, especially when the plaintiff is directly involved in the failure to preserve key evidence, some courts have dismissed cases in their entirety rather than force defendants to suffer the extreme prejudice caused by the unavailability of that evidence.
A product liability lawsuit, in its simplest form, involves an allegation of defect in the subject product. Without the alleged defective product, a defendant is deprived of the opportunity to examine the product for any purported defect, or to determine whether it actually manufactured or sold the product in the first place. Moreover, without the product, a defendant is unable to conduct testing or determine if the product had undergone modification or was in disrepair. In short, a plaintiff’s failure to preserve evidence will substantially jeopardize a defendant’s ability to defend itself and its product. Indeed, because of these concerns in product liability suits, one court noted that where a litigant disposes of critical evidence “before an opposing party has an opportunity to review and inspect [it], elementary fairness may require that the complaint be dismissed.” Abulhasan v. Uniroyal-Goodrich Tire Co., 14 A.D.3d 900, 903 (N.Y. App. Div. 2005).
Before imposing dismissal as a sanction, courts operating under both federal and state rules typically examine the availability and appropriateness of sanctions less severe than dismissal. Nevertheless, despite its severity, many courts have not hesitated to dismiss lawsuits as a sanction for spoliation of evidence. See, e.g., Story v. Raj Properties, Inc., 909 So.2d 797 (Ala. 2005) (affirming summary judgment as a sanction for spoliation of evidence when the plaintiff did not allow the manufacturer an opportunity to inspect the stucco product prior to destruction); Capitol Chevrolet, Inc. v. Smedley, 614 So.2d 439 (Ala. 1993) (reversing trial court and ordering dismissal where the vehicle was allowed to be destroyed before the defendant could inspect it); Torres v. Matsushita Elec. Corp., 762 So.2d 1014 (Fla. Dist. Ct. App. 2000) (affirming dismissal as to the manufacturer where the vacuum cleaner was discarded by the plaintiff’s counsel before the defendant could inspect it); Bloemendaal v. Town & Country Sports Ctr. Inc., 659 N.W.2d 684 (Mich. Ct. App. 2003) (affirming dismissal for spoliation where the plaintiffs disassembled motorcycle before the defendant could inspect it); Smothers v. Ins. Restoration Specialist, Inc., No. A04-1036, 2005 WL 624511, (Minn. Ct. App. March 17, 2005) (affirming exclusion of evidence of mold in the home due to spoliation of evidence, which resulted in dismissal of claim for lack of evidence); Abulhasan v. Uniroyal-Goodrich Tire Co., 14 A.D.3d 900 (N.Y. App. Div. 2005) (lower court’s denial of summary judgment for the defendant reversed due to the plaintiff’s failure to preserve the tire at issue); Thornhill v. A.B. Volvo, 304 A.D.2d 651 (N.Y. App. Div. 2003) (the plaintiff made no attempt to preserve the vehicle and summary judgment in favor of the manufacturer based on spoliation was affirmed); see also Chapman v. Auto Owners Ins. Co., 469 S.E.2d 783 (Ga. Ct. App. 1996) (dismissal for the plaintiff’s spoliation is a potential sanction; case remanded to trial court for determination of whether dismissal was warranted).1
The absence of a protective order does not necessarily preclude the possibility of dismissal. Further, if a product is lost or destroyed before a lawsuit is even filed, there still remains the possibility of dismissal for spoliation. In Stubli v. Big D International Trucks, Inc., 810 P.2d 785 (Nev. 1991), the Nevada Supreme Court affirmed the dismissal of a product liability case due to spoliation of evidence by the plaintiff’s counsel. There, Lawrence Stubli was injured in an accident in his tractor-trailer rig. Prior to the filing of a lawsuit, the plaintiff’s expert examined the rig, conducted destructive testing and prepared a report identifying an alleged defect. None of the potential defendants were invited to examine the trailer or advised that the trailer would not be preserved, despite the fact that it was clear a lawsuit would be filed. Thereafter, Stubli’s counsel concluded it was no longer necessary to retain the trailer, and he allowed it to be discarded as salvage. The lawsuit was filed a few months later against several parties, including Budd, the manufacturer of the trailer, and Big D, which had previously serviced the trailer.
Both Budd and Big D moved to dismiss the plaintiff’s claims pursuant to Nevada Rule of Civil Procedure 37 (which resembles FRCP 37), arguing that their inability to examine the trailer severely prejudiced their defenses. The trial court dismissed the case based on the destruction of the evidence and the Supreme Court of Nevada affirmed. Importantly, the Court explicitly rejected the argument that the lack of a discovery order precluded dismissal, and cited the language of an Illinois case as support:
[A]lthough it is correct that the plaintiffs did not violate court orders, the fact remains that the [product] was destroyed by plaintiffs at [third party’s] suggestion. The plaintiffs are not free to destroy crucial evidence simply because a court order was not issued to preserve the evidence. Further the [product] was destroyed by the plaintiffs after their expert had examined it and before the suit was filed, thus, the court could not have issued a preservation order.
Id. at 788, quoting Graves v. Daley, 172 Ill. App. 3d 35, 38, 526 N.E.2d 679, 681 (1988). The Court further recognized that the imposition of the sanction of dismissal was severe, but necessary in this instance:
Although dismissal precludes adjudication on the merits and penalizes Stubli for the misconduct of his attorney and expert, such consequences are unavoidable and are outweighed by the need to remedy the unfair litigation practices employed in this case, and the benefit of deterring similar abuses in future cases.
Id. at 788. Accordingly, the Nevada Supreme Court concluded that the sanction imposed was no more severe than the discovery abuse committed by the plaintiff and his agents, and affirmed the dismissal.
Other sanctions besides dismissal are potentially available when a defendant is faced with spoliation by a plaintiff. Depending upon the jurisdiction, courts may prohibit parties’ experts from testifying as to any purported defect in the destroyed product/evidence, strike portions of the pleadings, or refuse to allow the party who destroyed the evidence to oppose designated claims or defenses. Many times the practical implication of these additional sanctions is similar to that of dismissal. For instance, without expert testimony, a plaintiff may be without any evidence to prove a product defect. See, e.g., Torres, 762 So.2d at 1017 (“[t]herefore, even if the court should have merely stricken the expert witness … rather than dismiss the action as it did, the effect is the same.”).
Courts are often reluctant to deny a plaintiff any remedy at all by
imposing the sanction of dismissal for spoliation of evidence. Nevertheless,
there is ample support for the notion that a product manufacturer is denied
of the ability to defend itself if the product is not available, thus making
dismissal a fair and appropriate sanction.
For more information, e-mail Matthew Singer at
matthew.singer@hklaw.com or call toll free, 1-888-688-8500.
1 Defendants should also be aware that they are subject to the same scrutiny and potential sanctions by courts. In Keene v. Brigham & Women’s Hospital, 439 Mass. 223, 786 N.E.2d 824 (2003), the Court entered a default sanction against the defendant hospital for failure to preserve and produce medical records relevant to plaintiff’s claim.
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