Revisiting Dismissal as a Sanction for Spoliation of Evidence
 
September 14, 2006
 
Matthew Singer - Chicago

An article in the February 2006 Product Liability newsletter, Dismissal as a Sanction for Spoliation of Evidence, examined current judicial trends regarding dismissal of a product liability action as a sanction for destruction of the product. The 11th Circuit Court of Appeals continued that trend in Flury v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005) by vacating a jury verdict in the plaintiff’s favor and remanding for entry of judgment for the defendant as a sanction for spoliation of evidence. In this case, plaintiff Bryant Flury crashed his 1996 Dodge Ram pickup truck into a tree after falling asleep. The truck’s airbags failed to deploy and Mr. Flury suffered injuries. Following the accident and contact from the plaintiff’s counsel, the defendant, DaimlerChrysler Corporation, requested an opportunity to inspect the vehicle. The plaintiff’s counsel, however, never responded to DaimlerChrysler’s request and the vehicle was eventually sold for salvage.¹ Meanwhile, the plaintiff’s expert had examined the damage to the truck and testified that the truck was traveling in excess of 15 miles per hour when it struck the tree. The plaintiff’s expert also presented evidence that airbags do not “deploy when a vehicle collides at speeds less than 8 miles per hour; that airbags sometimes deploy at speeds between 8 and 14 miles per hour; and that airbags should always deploy at speeds of 15 miles per hour or greater.”²

DaimlerChrysler moved for summary judgment because destruction of the truck precluded its opportunity to inspect the vehicle. The Court denied the motion but later instructed the jury to “apply a rebuttable presumption that the evidence not preserved ... was unfavorable to the party responsible for spoliation.” Nevertheless, the jury found in favor of the plaintiff.

Despite noting “the broad discretion of the district court to impose sanctions” for spoliation of evidence, the 11th Circuit found that “[n]o lesser sanction [than dismissal] will suffice in this case.” The 11th Circuit noted that the plaintiff’s “failure to preserve the vehicle resulted in extreme prejudice to the defendant, and failure to respond to defendant’s letter displayed a clear dereliction of duty.” Importantly, the Court admonished the plaintiff, noting, “[e]ven absent defendant’s unambiguous request for [the vehicle’s] location, plaintiff should have known that the vehicle ... needed to be preserved and examined as evidence.”

The decision in Flury reminds attorneys to remain vigilant of the need to preserve crucial evidence, regardless of whether opposing counsel has formally requested access to such evidence.

For more information, e-mail Matt F. Singer at matthew.singer@hklaw.com or call toll free, 1-888-688-8500.

¹ The plaintiff’s counsel ignored DaimlerChrysler’s request despite the fact the vehicle was located at the home of the plaintiff’s parent.

² The trial court found the expert was unqualified to testify regarding airbag mechanics, and thus excluded the expert’s testimony on this subject under Federal Rule 702. However, the proffered expert opinions illustrate the importance to DaimlerChrysler of inspecting the vehicle in order to formulate a defense as such an inspection may have uncovered evidence that the vehicle was traveling less than the speed necessary for the airbag to deploy.