To Spoil or Not to Spoil? Why Speculation Carried the Day for the Defense Against Plaintiff’s Spoliation Claims

This holiday season has been good to the asbestos defense bar.  On December 16, 2014, the Illinois Fourth District Appellate Court decided a case which emphasizes the need for a plaintiff to properly prove causation by non-speculative evidence.  In the process, the court rejected a “sham” spoliation of evidence claim, finding that defendant’s spoliation of evidence was immaterial in light of the witness testimony presented by the plaintiff.  This is the first published decision in this State pertaining to spoliation.

In Holloway v. Sprinkmann Sons Corp., 2014 IL App (4th) 131118, plaintiff Carol Holloway brought a negligence action against defendant Sprinkmann, an alleged asbestos insulation supplier, alleging that  defendant delivered and installed asbestos-containing insulation at plaintiff’s jobsite  while she worked as at the Eureka vacuum cleaner factory in Bloomington, IL.  As an alternative theory, plaintiff argued that Sprinkmann wrongfully destroyed evidence that plaintiff needed to prove her case.  Plaintiff specifically alleged that Sprinkmann destroyed records indicating the types of insulation it sold and to whom the insulation was sold.  Destroying this evidence, plaintiff argued, prevented her from demonstrating which specific asbestos-containing products were sold and delivered by Sprinkmann to her jobsites.

At trial, plaintiff called Arthur B. Kremers, Sprinkmann’s former owner.  When Kremers began working for Sprinkmann in 1969, old records dating back to the 1950s were kept in the basement of the company’s Peoria office.  These records showed the brand and manufacturer of each product defendant had sold and delivered, as well as which employees had installed each product.  Apparently, as early as 1957, Sprinkmann employees began making claims for asbestos-related disease, relying on the basement records to show which brands of insulation the employees had installed.Sometime in the 1980s, however, Kremers shipped the basement records to a recycling center because “defendant was running out of space.”  The destruction of the records, according to Kremers, was consistent with Sprinkmann’s document retention policy, under which sales contracts and invoices were to be retained for only three years.

Crying foul over the alleged “spoliation” of evidence, plaintiff called co-worker witness Ellis Carlton and read into evidence an affidavit of another deceased witness, Wesley Klein.  This evidence was uncontroverted, and – as the documents themselves would have done – established that asbestos-containing insulation supplied by defendant Sprinkmann was present at plaintiff’s jobsite and installed by it.

The jury nonetheless returned a general verdict in defendant’s favor, prompting plaintiff to file a motion for a new trial, which was denied by the trial court.  On appeal, plaintiff argued that the jury might have found for plaintiff if it had had the benefit of reviewing the destroyed records establishing that the products were present at plaintiff’s worksite.

The appellate court affirmed the trial court’s judgment.  In doing so, it focused on the fact that the uncontradicted evidence of Klein and Carlton already established that the products were present at the facility.  To the extent that the “spoliated” records would have done nothing more than supply the same information, the jury could have reasonably concluded that the destroyed records would have made no difference in plaintiff’s case.   Thus, the “spoliated” records were no consequence.  For this reason, the court found that plaintiff failed to meet her burden of proving that, but for the destruction of the records, she would have had a reasonable probability of prevailing. The court then expressly addressed the key issue in this case:  that “the real problem in plaintiff’s case was causation, which the records would not have addressed.”  Indeed, the court hammered home the fact that “all plaintiff offered in the trial was speculation that her asbestosis resulted from repair work on the pipe-covering insulation in the Eureka plan, although she never saw any repair work being done on the insulation and there was no other evidence placing her near any such repair work.”

Plaintiff attempted to substantiate her exposure using the testimony medical expert Dr. Arthur Frank in conjunction with her own testimony that she was “in all the different parts of the plant for one reason or another.”   Dr. Frank espoused the “re-entrainment” theory, testifying  that individuals who had never worked hands-on with an asbestos-containing product could still be exposed to asbestos fibers because these fibers drifted around the factory and could be carried a long way by air currents.  According to Dr. Frank, all asbestos-containing products, including steam pipe insulation, released such fibers.  In fact, simply the “passage of time” would release these fibers.  On the other hand, Frank also conceded that a person needed to cross a threshold of a certain amount of exposure before getting asbestosis; Frank could not clarify what the threshold was, though he insisted that, for someone with asbestosis, “each and every exposure to any asbestos product had to be regarded as a cause.”

The court, however, was unpersuaded by plaintiff’s interpretation of her own testimony.  Specifically, the court noted that saying that plaintiff was “in all the different parts of the plant for one reason or another” is not quite the same as saying she “worked all over the plant.”  For argument’s sake, the court assumed that Dr. Frank’s theories were correct, that when asbestos-containing insulation had to be repaired, it created asbestos dust, and that such dust stayed around for a long time and wafted through the air.  However, the court concluded that Frank’s testimony was ultimately irrelevant, as there was no evidence that the buildings in the Eureka plant shared the same air, nor was there any evidence presented suggesting that the buildings in the plant shared a common ventilation system.  Plaintiff could therefore not clearly connect the allegedlyomnipresent “asbestos dust”  to her own inhalation.  Even if she had, the court pointed out problems with the testimony of plaintiff’s “expert,” noting that Frank’s testimony provided no solid, non-speculative evidence that the amount of asbestos dust breathed in by plaintiff under such circumstances would be sufficient to cause asbestosis.

Holloway v. Sprinkmann places great importance on a plaintiff’s burden to show causation with non-speculative evidence.  For plaintiffs like Holloway, certain expert testimony may seem like a home run (eg., the “re-entrainment” theory), but, at the very heart of the matter, such evidence is nothing more than conjecture. In rejecting plaintiff’s spoliation argument, the Sprinkmann court further demonstrated that it will not permit “red herring” issues to distract the court from a lack of admissible evidence of causal links.  This decision from the Illinois appellate court provides further support for defendants seeking to attack speculative evidence, without fear that extrinsic issues that have no bearing on their ultimate liability will alter the result.

Plaintiff Spoliates Self And Her Case Dismissed

On August 7, 2012, the New York Law Journal reported that the lawsuit of a woman, who disobeyed three court orders directing her to undergo a physical examination by a defense medical expert in a personal injury lawsuit before she underwent spinal surgery, was dismissed due to spoliation of evidence.  The evidence that was spoliated was plaintiff’s pre-surgery physical condition!  The decision in Mangione v. Jacobs (2012 NY Slip Op 22211) is attached.

In a case of first impression in New York, the Hon. Charles Markey, Queens Supreme Court, held that the plaintiff’s failure to submit to a medical exam by her adversary’s examining physician could be found to be spoliation of evidence because the alleged damage resulting from her automobile accident was surgically corrected before the defendants’ examining physician could see her. 
The court distinguished the case at bar from a situation where a plaintiff needs to have life-saving surgery or any operation that would cure intense pain and alleviate injury. Under those circumstances, no spoliation would attach. That was hardly the case here, the court  ruled, where there was no medical reason why plaintiff could not have waited one more  week before having surgery to comply with the most recent of several court orders to submit to a physical examination. 

Although there were no New York cases directly on point, Judge Markey referenced a 2001 ruling in the Superior Court in Delaware in Clark v. E.I. DuPont de Nemours, WL 1482831, in which the court dismissed a suit brought by a plaintiff who underwent hip replacement surgery before defendants were allowed to conduct an independent medical examination. The Delaware Supreme Court affirmed the ruling in Clark and the U.S. Supreme Court denied a writ of certiorari in 2002 (537 U.S. 941). 

The court found that a jury instruction would not be sufficient to remedy what Judge Markey described as the “irreparable prejudice to defendants of the spoliation, where Mangione’s surgery has eviscerated the means of defense doctors and lawyers of tracing the causal connection of Mangione’s ailments to the most recent accident….” Contributing to the adverse outcome for the plaintiff was the court’s determination that plaintiff had intentionally thwarted three prior court orders. Plaintiff advised the New York Law Journal that they intend to appeal.  We do not predict success for plaintiffs in the Second Department on appeal.

Litigation Tip: In personal injury actions where it is likely that the claimant will undergo surgery to correct the condition alleged in the complaint, it is good practice to place plaintiff on notice as soon as possible of defendants’  intention to perform a physical examination of the plaintiff. However, in Mangione, it is likely that the defendants would not have obtained so successful an outcome if plaintiffs had not flouted three court orders. In the absence of a violation of a court order, it is likely that the most relief the aggrieved defendant can obtain is an adverse inference. How effective would an adverse inference be, however, when plaintiff’s treating physician is still permitted to testify at trial concerning the plaintiff’s grievous physical condition prior to surgery?  Better to get a court order and hope the plaintiff ignores it and undergoes surgery instead.

This is not really a spoliation of evidence case in the traditional sense. Rather, it is a plaintiff’s effort to play fast and loose with her personal injury claims without providing the defendant a fair chance to independently evaluate those claims by a doctor of their choice. 
 

Breach Of Warranty & Product Liability Claims Dismissed Against Auto Service Provider

In 2008, the parents of Sean Reeps, brought suit against BMW, Martin Motor Sales and Hassel Motors ("Hassel"), alleging that Sean’s mother, Debra, was exposed to gasoline fumes in the family’s BMW during her pregancy, which resulted in Sean being born with birth defects. The Complaint alleged causes of action in (1) negligence; (2) strict products liability; (3) breach of express warranty; and (4) breach of implied warranty (merchantability) . The timeline of events is as follows:

1991-In March and again in November, Reeps bring their 1989 BMW 525i to Hassel Motors, a licensed BMW dealer, to fix an exhaust odor inside the car.  Dealer fails to identiify an exhaust odor in March, but later identifies problem as a split fuel hose and repairs it under warranty.

1992-In May, Sean Reeps is born with birth defects, including cerebral palsy, which plaintiffs  attribute to Debra’s  inhalation of gas fumes early in pregnancy.

1994-BMW recalls BMW525i vehicles due to safety defect that caused odor due to feed fuel hose. Car is no longer with plaintiffs at the time.

On summary judgment, BMW argued that plaintiff’s claims were barred by the doctrine of spoliation because plaintiff could not establish a prima facie case without the car or the fuel hose to show the actual alleged defect.  BMW’s expert testified by affidavit that the Reeps’ leakage was caused by a split in the fuel hose, not by the defect that was the subject of the recall.  Thus, in the absence of the actual fuel hose, BMW argued, plaintiff could not demonstrate a defect. 

The trial court rejected BMW’s spoliation argument, holding that there was no evidence of “willful or contumacious conduct” by plaintiff in disposing of the car. Remarkably, the Reeps’ BMW was actually found, but clearly not in the same condition as it was in 1991 and, not surprisingly, without the original fuel hose. The trial court held that plaintiff was not “barred from pursuing his claim, but rather he will have the onerous trial burden of proving his case solely by circumstantial evidence.”

New York law requires that to establish a prima facie case for strict product liability or design defect, a plaintiff must show that the manufacturer marketed a product that was not reasonably safe in its design; that it was feasible to design the product in a safer manner; and that the defective design was a substantial factor in causing the plaintiff’s injury. When the product at issue is no longer available, and the plaintiff seeks to prove a manufacturing defect by circumstantial evidence, the plaintiff must not only establish that the product did not perform as intended, but must also exclude all other causes of failure not attributable to the manufacturer.

The trial court denied Hassel’s motion for summary judgment. The gravamen for plaintiff’s claims against Hassel was that it was negligent in failing to find the split fuel hose when the Reeps first complained of fuel odor in March 1991. Plaintiffs argued that if Hassel had identified and repaired the problem, Mrs. Reeps would not have inhaled any fumes during her pregnancy. In denying the dealer’s motion for summary judgment, the court observed that there is a high bar for obtaining summary judgment in a negligence action. As the court noted, “Simply put, Hassel must prove that it was not negligent when it failed to find a source of the gas fumes complained of by the Reeps in March 1991. It has not done so.”

In its decision, dated April 5, 2012, the Appellate Division, First Department, weighed in on both the spoliation issue and the motion for summary judgment by Hassel. On the spoliation issue, the Appellate Division held that the defendants “failed to demonstrate that the parents disposed of the vehicle with knowledge of its potential evidentiary value.” Moreover, the court discussed the existence of other available evidence, including BMW’s Recall Bulletin and Hassel Motors-service records for the relevant period, which served to mitigate the loss of the vehicle. Basically, the court examined two of the key factors in evaluating spoliation sanctions – prejudice and intent – and determined that the movants had failed to establish either element in seeking sanctions.

As to plaintiff’s claims against Hassel, the Appellate Division held that the product liability and breach of implied and express warranty claims should be dismissed because the service provider did not design, manufacture, distribute or sell the vehicle. This holding may be the most important in the case because it clarifies that service providers, as opposed to product sellers, can not be held liable under strict product liability or breach of warranty theories of liability. Therefore, the only remaining claim against Hassel sounds in negligence, which may be difficult for plaintiff to establish at trial after a twenty year hiatus.

Apart from its other burdens, plaintiff will have to demonstrate general causation at trial, that is, whether exposure to chemical components in gasoline fumes have been associated in the scientific literature with the specific teratogenic effects alleged, including cerebral palsy. If plaintiff is able to prove general causation, he will then have to prove specific causation, that is, whether the dose of the purported teratogen was high enough, and lasted for a sufficient duration, to cause the specific birth defect.

The plaintiff attributes his injury to Debra Reeps’ inhalation of gas fumes during the first couple of months of her pregnancy between August 1991 and November 1991, when the problem with the vehicle was fixed. Are the alleged teratogenic effects associated with a toxic exposure early in pregnancy? How often did Debra Reeps ride in the automobile during those first couple of months? If the odor problem was significant, is it likely that the Reeps would not have returned their BMW 525i, which was under warranty, to the dealership before November? Because there is no expert deposition discovery under New York state practice, we will have to await trial to learn how these issues plays out.
 

 

 

Remedies For Spoliation Of Evidence

New York state courts are increasingly turning to federal Zubulake standards when confronted with spoliation of electronic evidence issues. However, in dealing with garden variety spoliation of evidence scenarios, not involving ESI, New York courts have generally engineered their own solutions without turning to federal common law for guidance. We previously addressed how New York courts address ESI spoliation.

Pursuant to the common law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned. There may be circumstances where the destruction is so egregious that the offending party’s pleading may be stricken where no other remedy will achieve a fundamentally fair outcome.

In their article, “Remedies for Spoliation of Evidence,” published in the New York Law Journal on March 27, 2012, Plaintiff lawyers Robert S. Kelner and Gail S. Kelner provide a good overview of how state courts address spoliation of evidence and the circumstances under which a court will impose the “ultimate sanction.”

Unlike some states, New York does not recognize an independent tort claim for third-party negligent spoliation of evidence. In a 2007 Court of Appeals case, Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773 (2007), the City of New York was under a court order to preserve an impounded vehicle so that the cause of a vehicular fire could be determined by forensic analysis. Due to negligence, the City of New York failed to preserve the vehicle. Despite this negligent destruction, the court declined to establish an independent tort of spoliation of evidence, pursuant to which a tort action against the City of New York might have been pursued. In declining to establish a spoliation tort, the court explained that there was “no way of ascertaining to what extent the proof would have benefited either the plaintiff or defendant in the underlying lawsuit and it is therefore impossible to identify which party, if any, was actually harmed.” Applying this logic, the Ortega court stated that an independent cause of action was not viable because it would recognize a claim that, by definition, could not be proved without resort to speculation. However, speculative the damages that might have resulted from spoliation in Ortega,  New York courts have not hesitated to levy sanctions when a party has destroyed evidence.

New York courts have been willing to strike an offending party’s pleading when it can be shown that a party destroyed key evidence which deprived the adversary of its ability to prove its claim or defense. The court may also, in its discretion, apply any number of remedies short of striking the pleading. These remedies include an “adverse inference” (where the jury is instructed that it may infer that the missing evidence, if available, would tend to inculpate the spoliating party), or preclusion of testimony at trial. Generally, in crafting an appropriate sanction, the trial court will consider two factors first and foremost: (1) whether the destruction was willful; and (2) the resultant prejudice.  Prior to bringing a spoliation issue to the court’s attention, the practitioner should document by every means possible the intentional nature, if appropriate, of the spoliation at issue through investigation and discovery. 
 

Spoliation Defeats Innocent Landowner’s CERCLA Claim

Innis Arden Country Club is a well-run country club located on beautiful acreage in Old Greenwich, CT. that has operated for over 100 years. Close friends of mine are members–the food is good, the golfers congenial, and laughing children run barefoot across the pool deck in good weather.  Club members had been stunned to learn in 2004 that PCB contamination had been discovered on the golf course property, not far from where an industrial company, Pitney Bowes, had once conducted operations on an adjacent parcel in Stamford.  The country club’s environmental consultants determined that Pitney Bowes was the source of the contamination, which Pitney Bowes denied, and that PCBs from the Pitney Bowes property had migrated by way of storm water and surface water runoff to Innis Arden.  What no one could dispute was that the country club had not placed the PCBs on the golf course–it was what CERCLA characterizes as an "innocent landowner". On June 26, 2009, the federal district court in Connecticut dismissed Innis Arden’s complaint prior to trial and affirmed a prior sanctions award against the country club. Innis Arden Golf Club v. Pitney Bowes, Inc. et al. Case No. 3:06 cv 1352 (JBA), 2009 U.S. Dist. LEXIS 54135.  Something had gone terribly wrong!  But what?

Pitney Bowes retained Hunton and Williams, a law firm with a strong reputation in environmental litigation to defend the case.  In a July 2009 Client Alert, the law firm attributed Innis Arden’s dismissal to its consultant having destroyed the key evidence that allegedly linked the PCB’s at the country club to their client.  Without being able to perform tests on the actual soil samples the consultant had taken, Pitney Bowes would be unable to refute the consultant’s claim that the PCB’s on the golf course were identical to PCB’s identified on the Pitney Bowes’ site, it alleged.  As the Alert points out, the Court’s spoliation ruling is a strong reminder of the obligations of parties and their experts to impose a litigation hold and to ensure that tangible evidence, such as as a soil sample taken to the lab for testing, is preserved.  Central to the court’s ruling was that the soil sampling in question had been undertaken in preparation for litigation.  As the Magistrate Judge had earlier ruled "……counsel was actively involved in the investigation and analysis of the samples in preparation for legal action……"  Sanctions were awarded even though the Court concluded that Innis Arden had not intended to destroy evidence or to disadvantage Pitney Bowes.  In the Bow Tie Law Blog, the author opines that Innis Arden’s "toxic mess" was created in part by deposition testimony that made it clear to the Court that plaintiff had taken no steps to prevent the destruction of electronic and tangible evidence as early as 2005, by which time it was clear that plaintiff recognized the importance of that evidence in its future litigation. 

By the time  the spoliation sanctions issue came before Judge Atherton on a motion for reconsideration, Innis Arden was in even deeper trouble.  The Magistrate Judge had also awarded sanctions against Innis Arden for discovery abuses–the most egregious that the Magistrate Judge had seen during over twenty years on the federal bench.  Worse, Judge Atherton concluded after hearing Daubert motions that Innis Arden’s trial experts were not sufficiently reliable to be permitted to testify at trial.  On the basis of that ruling, she granted summary judgment to the defendants and dismissed the plaintiff’s complaint.  At the end of the day, the Court did not have to reconsider the Magistrate Judge’s spoliation ruling because the issue was now moot!  Still the "innocent landowner", Innis Arden’s complaint has been dismissed and may yet have to pay the defendants’ sanctions for discovery abuses.