Anyone who has worked in products liability for any period of time is familiar with the pitfalls awaiting a claim tainted by spoliation. Less common, however, is familiarity with how to handle spoliation when it happens. What is the correct way to handle a case when the expert you hired destroys the evidence central to your case? How do you handle a situation when your client takes it upon himself to “inspect” the faulty product and damages it in such a way that any inspection by an expert is impossible? What do you do if an insurance company claims a vehicle for salvage, and the vehicle is a central piece of evidence? Is there any hope for your client’s case in any of the scenarios above? In order to answer that question, there are many factors that you must examine.
Of course, the first step is to locate and secure the product. In the ideal situation, the product would be found and then stored in such a fashion as to preserve its state at the time of the incident. As evident in the cases cited subsequently, the stars rarely line up so well. Car insurance companies will often classify a vehicle as totaled and then sell it for salvage or scrap, thereby destroying the vehicle. Hand-sized products are thrown out or lost before a lawsuit is even considered or the importance of the object realized. In order for an attorney to evaluate the merit of a claim in light of the loss of some piece of evidence, he or she must be well versed with the case law surrounding spoliation of evidence.
The term “spoliation” used in the context of evidence only recently came into use in Virginia. The earliest case was in 1996. In Gentry v. Toyota Motor Corp,[1] Mrs. Gentry, the plaintiff, was injured when she lost control of her truck. The expert hired by Mrs. Gentry used a hacksaw to remove the control cable that he determined to be the cause of accident. When Mrs. Gentry and her husband brought a negligence suit against Toyota for the defect, the car manufacturer moved to dismiss for spoliation of the evidence. Not surprisingly, Toyota’s motion was based on the theory that its own ability to conduct an independent investigation into the cause of the accident had been so compromised as to prevent it from establishing a defense. The Gentrys filed a motion for a stay, which the court granted, so they could have the vehicle inspected by another expert. The new expert identified a separate engine component as the cause of the accident. Despite this, the trial court granted Toyota’s spoliation motion and dismissed with prejudice, citing the conduct of the first expert. On appeal, the Virginia Court of Appeals reversed the decision, finding that the lower court had abused its discretion.
The court of appeals concludes that the plaintiffs had not acted in bad faith and the actions of the first expert, appalling as they were, did not prevent Toyota from mounting a defense to the findings of the second expert.[2]
Not long after Gentry, the Virginia Supreme Court addressed spoliation as it arrived in the form of a certified question of law from West Virginia’s federal court. The case, Austin v. Consolidation Coal Co[3], involved an employee who was injured when the hose that he was using exploded in his hands. The employee, Mr. Austin, filed a products liability action against both the manufacturer and distributor of the hose. The employer, Consolidation Coal Co [“Coal’], refused to reveal the identity of the manufacturer of the hose and destroyed the hose. Mr. Austin then proceeded to file a lawsuit against Coal for spoliation of evidence. The court in Austin set out five elements that it determined must be present in order to proceed with a cause of action based in spoliation. There must be (1) pending or probable litigation involving the plaintiff, (2) knowledge on the defendant’s part that litigation has been filed or is probable, (3) willful destruction of evidence designed to disrupt the plaintiff’s case, (4) actual disruption of the plaintiff’s case, and (5) damage to the plaintiff.[4] Examining Virginia case law, the court further found that whether or not a tortious obligation was owed by the employer to an employee depended on whether or not Coal, the employer, owed a duty to Austin, the employee, to preserve the hose.
The Virginia Supreme Court, while holding that such a question was indeed a matter of first impression in Virginia, held that there existed no cause of action for the tort in Virginia that would provide remedy to Austin based on the specific facts of that case. The court based its conclusion on two grounds. First, there was no order from the court mandating the preservation of the hose[5]. Secondly, the employer had no duty to preserve the hose when it was intended for use by a third party[6]. When Austin argued otherwise, the court stated that there were no state or federal safety rules creating such a duty and that the employee-employer relationship between Austin and Coal did not give rise to such a duty.
The most recent decision on spoliation in Virginia was decided by the Virginia Court of Appeals in 2003. In Wolfe v Virginia Birth-Related Neurological Injury Compensation Program[7] , the issue presented was the application of the evidentiary rule when a party fails to produce evidence, which last existed in that party’s sole possession, and whether such failure gives rise to an inference that the party considered the evidence to be unfavorable to its claim. The plaintiff, a mother, claimed that the doctor who had delivered her daughter had destroyed the records of tests that would show the umbilical cord blood gases measured during the delivery of her daughter, who was diagnosed with cerebral palsy shortly after birth. The gas tests were normally completed as a standard procedure in delivery, but were missing from the medical records provided by the doctor. The plaintiff argued that this omission constituted spoliation of the evidence, giving rise to an adverse inference. The court agreed, finding that Virginia law recognizes such an adverse inference.[8] The court further explored the definition of “spoliation.” The textbook definition of “spoliation’” is the intentional destruction of evidence. However, spoliation issues also arise when evidence is lost, altered, or cannot be produced. Spoliation encompasses conduct that is either intentional or negligent. A spoliation inference may be applied to an existing action if, at the time the evidence was lost or destroyed, a reasonable person in the defendant’s position should have seen that the evidence was material to a potential civil action.[9] The appellate court agreed with the plaintiff and held that she was entitled to an inference that the omitted evidence would have been highly favorable to her case. Accordingly, the court remanded the case for hearing under that inference
As illustrated by the cases above, the current law on spoliation of evidence in Virginia is that an adverse evidentiary inference may apply against the party responsible for the loss or destruction of some piece of material evidence. However, there must be some degree of culpability with regard to the missing evidence in order for the sanction to apply. However, no independent tort for spoliation will stand in the absence of a breach of some legally cognizable duty to preserve the evidence.
While Virginia courts undoubtedly recognize the concept of spoliation, the decisions governing treatment of the spoliation issue are not entirely reconcilable. However, it seems safe to conclude that in order for a court to even entertain allowing an adverse evidentiary inference against a party, there must be some showing of intent or willfulness in the failure to preserve or present material evidence. For a court to dismiss a case on the grounds of spoliation the willful failure to preserve evidence must be such that it severely prejudices the opposition from forming the basis of a claim or defense. No independent tort exists for spoliation, though equity seems to require that one be implemented.
[1] 252 Va. 30, 471 S.E.2d 485 (1996)
[2] Id. at 34, 471 S.E.2d at 488
[3] 256 Va. 78, 501 S.E.2d 161 (1998)
[4] Id. at 81-82, 501 S.E.2d at 162
[5] Id. at 83, 501 S.E.2d at 163
[6] . Id. at 84, 501 S.E.2d at 164
[7] 40 Va. App. 565, 580 S.E.2d 467 (2003)
[8] Id. at 580-581, 580 S.E.2d at 579
[9] Id. at 581, 580 S.E.2d at 579
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