Dismissal for Spoliation to Thwart Causation Defense
Kaplan, Alan D., Defense Counsel Journal
Writing in the December issue of the newsletter of the Products Liability Committee, Alan D. Kaplan of Gallagher Gosseen Faller Kaplan & Crowley, Garden City, New York, notes dismissal for spoliation of causation evidence and updates case information:
As more and more courts have shown a readiness to impose sanctions for intentional or negligent spoliation of evidence, the sanction of dismissal has been granted with greater frequency. Moreover, this particular sanction has been recently granted in cases that did not involve spoliation of the actual product deemed defective by the plaintiffs, but rather an item of evidence cited by the defendants that would have helped to prove a causation defense.
The Seventh Circuit has affirmed such a dismissal in Allstate Insurance Co. v. Sunbeam Corp., 53 F.3d 804 (7th Cir. 1995). The Second Circuit, faced a similar issue in West v. Goodyear Tire & Rubber Co., 1999 WL 65629, recently remanded to the district court but suggested the imposition of other severe sanctions. A few state courts also have addressed this issue.
Spoliation dismissals generally
The sanction of dismissal in federal court may be imposed under Rule 37 after a showing of willfulness, bad faith or any fault on the part of the offending party or its counsel. Jones v. MFTA, 836 F.2d 731 (2d Cir. 1987); Hogan v. Dow Chemical Co., 818 F.2d 210 (2d Cir. 1987).
In the spoliation context, federal courts have found "fault," or non-intentional conduct, worthy of dismissal where key items of evidence were repossessed by mistake and unavailable as a result (Brancaccio v. Mitsubishi Motors Co., 1992 WL 189937, 90 Civ. 7852 (S.D. N.Y. 1992)), and where counsel, "failed to take simple, reasonable steps to secure evidence." Jackson v. Nissan Motor Corp., 121 F.R.D. 311 (M.D. Tenn. 1988). "Fault" is the equivalent of lack of reasonable care and is not dependent on intentional acts. Marrocco v. General Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992).
The sanction of dismissal has been imposed increasingly against parties who have lost or destroyed evidence that prejudices another party's ability to prosecute or defend the suit. See, e.g., Jordan F. Miller Corp. v. Mid-Continent Aircraft Service, 139 F.3d 912 (lOth Cir. 1998); Brancaccio, supra.
The causation defense
Although many of the earlier spoliation decisions involve the destruction of the socalled "crown jewels," recent decisions indicate that the destruction of evidence necessary for the establishment of a causation defense also will result in the most drastic of sanctions. Typically, such a causation defense revolves around the use of additional equipment or component parts together with the item alleged to be defective by a plaintiff. It might also involve the examination of the allegedly defective product itself, not for purposes of challenging a design defect claim, but rather to support a claim of lack of maintenance or misuse of the subject product.
In the Allstate case, originally decided by the Northern District of Illinois in 1994 (865 F.Supp. 1267), a product liability claim against Sunbeam Corp. was pursued based on an allegation that a propane-fueled outdoor gas grill manufactured by Sunbeam was defective and responsible for a fire. The plaintiff alleged that a leak occurred somewhere in the gas train, causing the grill's fire to grow until it overheated the propane tank, causing it to vent a large quantity of gas. It was alleged that a thermal shutoff or safety disconnect device should have been installed.
Sunbeam contended that the fire was more likely started by a spare tank of propane that had been stored beneath or directly behind the grill, and that the spare tank had been overfilled with liquid propane. Rather than accepting the plaintiff's theories, Sunbeam alleged that an entirely different piece of evidence was involved and that the mechanism causing the fire was totally different from that claimed by the plaintiff. …