ADDING INSULT TO INJURY - MADELINE KLOTZ IN NASSAU LAWYER
When the Product that Allegedly Injured the Plaintiff Has Been Destroyed Before Trial
April 5, 2011
Publication Source: Nassau Lawyer
Written By: Madeline Klotz
Spoliation of Product Evidence, Intentional or Negligent Destruction - Section 3216 of CPLR
The best evidence in a products liability case is almost always the product itself. The plaintiff uses it to prove that the defective product caused plaintiff’s injuries, and that it was manufactured by the defendant. The defendant uses the actual product to prove that it had not manufactured the product, or that the product was not defective. But what happens when the product has been destroyed before trial? Can the case proceed to trial without the most critical piece of evidence? As discussed below, court opinions vary widely based upon a variety of factors. This article will discuss cases involving a party’s intentional or negligent destruction of evidence, known as spoliation, as well as cases in which evidence was innocently destroyed, and suggest public policy reasons for allowing a case to proceed to trial despite the innocent destruction of the product in question.
The Status of the Law of Spoliation
When evidence is destroyed, it is usually destroyed by a party to the case. When this happens, the party who has not destroyed the evidence may seek sanctions against the destroyer. Sanctions for the destruction of evidence are provided under Section 3126 of the CPLR. They are also available under the common law doctrine of spoliation.
The CPLR: When a party has destroyed the product, it is unable to disclose the product as evidence. Section 3126 provides three possible remedies for the failure of a party to disclose evidence: first, that the issues will be resolved in favor of the party moving for sanctions; second, an order preventing the destroying party from supporting or defending claims or defenses, and from producing evidence; or, third, an order striking the pleadings, dismissing the action, or rendering a default judgment against the disobedient party. But, for a court to strike a party’s pleading pursuant to the statute, the failure to produce the evidence must be “willful, contumacious or in bad faith.” Foncette v. LA Express, 295 A.D.2d 471, 472 (2d Dep’t 2002).
Common Law: Common law sanctions for spoliation of evidence allow striking the destroying party’s pleading when the destroyed evidence is essential to the case and the non-destroying party is unable to defend itself with “incisive evidence.” However, if the destroyed evidence is not essential or its destruction does not prejudice the other party, a lesser sanction of preclusion from proving the evidence’s condition may be imposed. See Mylonas v. Town of Brookhaven, 305 A.D.2d 561, 562-63 (2d Dep’t 2003); Foncette, 295 A.D.2d at 472; Marro v. St. Vincent’s Hosp., 294 A.D.2d 341, 341 (2d Dep’t 2002).
While both the statute and common law allow the striking of a pleading, they have very different standards for imposing this drastic sanction. The distinctions are due to the different focuses of the two standards. The common law focuses its basis for sanctions on the prejudice to the party seeking sanctions, while the statute focuses on the intent or conduct of the party who caused the loss of evidence. See Favish v. Tepler, 294 A.D.2d 396 (2d Dep’t 2002). Regrettably, many court decisions do not differentiate between them resulting in conflicting opinions and confusing law.
For example, in Kirschen v. Marino, when considering whether to impose sanctions for spoliation, the court stated that
[a] party seeking a sanction pursuant to CPLR 3126 such as preclusion or dismissal is required to demonstrate that ‘a litigant, intentionally or negligently, dispose[d] of crucial items of evidence . . . before the adversary ha[d] an opportunity to inspect them’, thus depriving the party seeking a sanction of the means of proving his claim or defense. The gravamen of this burden is a showing of prejudice.
16 A.D.3d 555, 555 (2005). While the court in Kirschen referred to the statute, its analysis was based on the common law standard of prejudice, rather than the statutory requirement of willful, contumacious or bad faith conduct. Because courts sometimes confuse these standards, a practitioner should clearly state the sanctions sought and the proper standard required for the imposition of sanctions.
The Rarer Case When Spoliation Is Not Involved
Most case law involves situations where one of the parties, usually the plaintiff, has either intentionally or inadvertently destroyed evidence. Under these circumstances, the court may apply either a common law spoliation analysis determining the prejudice to the party seeking sanctions or a statutory analysis determining whether a party willfully destroyed the evidence. (more see pdf)