Spoliation of Evidence in Pennsylvania Courts
Recent State Court decisions adopt federal court balancing test.
The loss or destruction of evidence, termed "spoliation of evidence" can significantly affect the outcome of litigation. This is especially true in a product liability case since the product itself is often the best evidence of what occurred during an accident. The loss or destruction can be so detrimental to a party that the case cannot proceed.
How a particular court will handle spoliation of evidence in a product liability case turns on the unique facts of that case. To what degree a party is culpable in losing or destroying the evidence at issue is often a significant factor. Additionally, the theory of liability advanced by the plaintiff can have a significant impact on the court's actions. If plaintiff is alleging a manufacturing defect unique to that product, its loss or destruction may prove fatal to plaintiff's claim, since replication of the defective product may not be possible. Alternatively, if the theory is a design defect, which presumably exists in any one of a particular product, the loss or destruction is not as critical.
Pennsylvania product liability law presents an additional issue by recognizing the malfunction theory of liability. The malfunction theory allows a plaintiff to prove the existence of a defect through circumstantial evidence. Under the malfunction theory, a plaintiff is permitted to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction. Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 565 A.2d 751 (1989). By utilizing the malfunction theory of recovery, in cases where the alleged defective product has been lost or destroyed, a plaintiff can avoid summary judgment and present the case to the jury.
To handle spoliation of evidence, courts have developed various sanctions. The most common sanction has been the adverse instruction to the jury. Another has been to limit or exclude evidence or testimony regarding the lost or destroyed item. Traditionally, the ultimate sanction of dismissal has been reserved for those circumstances when the destruction of evidence has severely prejudiced a defendant.
Until very recently, the issue of lost evidence was handled differently by Pennsylvania State Courts than by Pennsylvania Federal Courts. The approach adopted by Pennsylvania Federal courts has been to apply a balancing test where the trial judge is to consider the following factors in assessing what sanctions to impose:
- the degree of fault of the party who altered or destroyed the evidence;
- the degree of prejudice suffered by the opposing party; and
- whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.
Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3d Cir. 1994). Two recent decisions by the Pennsylvania Supreme Court have adopted the federal court approach; the Schmid test.Pennsylvania State Court decisions before the adoption of Schmid
In the early 1990's, spoliation of evidence could support outright dismissal, without considering a lessor sanction in Pennsylvania State Courts.
In Roselli v. General Electric Company, 410 Pa. Super. 223, 599A.2d 685 (1991), allocatur granted 607 A.2d at 255 (1991), the Pennsylvania Superior Court upheld a dismissal where plaintiff alleged a manufacturing defect in a coffee maker. Plaintiff inadvertently lost the physical evidence. The Court found that the examination of the broken fragments of the carafe was necessary to determine the validity of the plaintiff's claim and, without this opportunity, the defendant was severely prejudiced.
The holding in Roselli, which involved instances where the plaintiff lost the evidence, was expanded in DeWeese v. Anchor-Hocking, 427 Pa. Super. 47, 628 A.2d 421 (1993 ). In DeWeese, the Pennsylvania Superior Court upheld the dismissal of a case in which plaintiff was not responsible for the loss of the product; a glass pitcher. Following the subject accident, plaintiff's co-workers discarded the product. The Court held that where the plaintiff brings an action claiming an injury due to a defective product, his failure to produce the product for inspection by the defense renders summary judgement against him appropriate.
While Roselli and DeWeese appeared to represent a clear pronouncement by the Superior Court that loss of evidence in a products liability case warranted dismissal where the defendants were so prejudiced that they could not put forth the typical products liability defenses, this bright line test began to be eroded by subsequent Superior Court decisions.
In O'Donnell v. Big Yank, Inc., 696 A.2d 846 (Pa. Super. 1997). The plaintiff was injured when his pants caught on fire after coming in contact with electrical voltage. Plaintiff brought an action against the manufacturer of the pants, alleging they were defective as a result of their highly flammable nature. The defendant manufacturer countered that grease on the pants, and nothing to do with the pants themselves, caused the fire. Plaintiff was unable to produce the pants for inspection, and the trial court granted summary judgment. The Superior Court reversed the decision of the trial court finding that since plaintiff alleged the defect existed in all of the pants manufactured by the defendant, examination of the particular pair was not necessary.
In Long v. Yingling, 700 A.2d 508 (Pa. Super. 1997), the Superior Court again refused to uphold a motion for summary judgment based on spoliation of evidence. Long involved a car accident alleged to have been caused by faulty brakes. In this case however, the loss of evidence was attributed to actions by one of the defendants, the car dealership which owned the car. When plaintiff's experts attempted to examine the master cylinder, they were initially refused and later informed that the master cylinder was missing. The Long facts presented to the Superior Court the opportunity to point out that the harsh sanction of dismissal set forth in Roselli and DeWeese, was inappropriate where the defendant had exclusive control of the lost product.
While, the decisions in O'Donnell and Long questioned the holdings of Roselli and DeWeese, the Superior Court decision in Dansak v. Cameron County Coca Cola Bottling Co., Inc., 703 A.2d 489 (Pa. Super. 1997), alloc. denied, August 6, 1998 effectively reduced Roselli and DeWeese to their facts..
In Dansak, the plaintiff, Wilma Dansak, an employee at a 24 hour Convenience Store was injured while removing glass bottles of soda from a plastic six pack container. As Ms. Dansak was twisting one of the soda bottles free from the plastic container, it spontaneously exploded, causing glass to cut her right hand. Ms. Dansak immediately attended to her injured hand. She later learned that the store manager threw the plastic 6 pack holder, the broken bottle and all the broken glass away. Hence, neither the plaintiff nor any of the defendants were responsible for losing the evidence. The defendants, however, still argued that they were prejudiced by the inability to examine the glass to determine the cause of the breakage. Defendant, Cameron Coca Cola Bottling Co. filed a motion for summary judgment alleging the plaintiff could not prove her case because she could not produce the product that injured her and that she could not proceed on a malfunction theory because she could not establish a defect in the product or eliminate reasonable secondary causes for a product malfunction. The trial judge granted the motion for summary judgment.
The Superior Court used the facts of Dansak to review the differing opinions from Pennsylvania courts, State and Federal, which addressed spoliation of evidence. The Court distinguished the facts in Dansak from the facts presented in Roselli by pointing out that plaintiff was not responsible for the loss of the evidence. The Court distinguished the facts in Dansak from those in DeWeese by finding that there was not a majority opinion on the spoliation issue in DeWeese, and its ultimate decision rested on other grounds. The Court concluded that there was "no controlling Pennsylvania authority which mandated summary judgment whenever the plaintiff fails to preserve the defective product." Instead, the Court relied upon the more recent Pennsylvania Superior Court decisions in O'Donnell v. Big Yank, and Long v. Yingling, to conclude that as long as plaintiff could establish the defect through circumstantial evidence, even though the product had been destroyed, plaintiff would still have her day in court. To reach this conclusion, the Court applied the three part test set forth in the Third Circuit Court of Appeals decision in Schmid v. Milwalkee Electric Tool Corp., 13 F.3d 76 (3d Cir. 1994).
After concluding that the loss of evidence was not fatal to plaintiff's claim, the Court turned to the contention that plaintiff could not prove a products liability action under the malfunction theory, i.e. through circumstantial evidence. The Court's analysis revealed that the malfunction theory was perfectly suited for cases in which evidence has been lost. Without commenting on the strength of the plaintiff's circumstantial case, the Court reaffirmed the right of the plaintiff to reach a jury and prove that a defect existed in the bottle through circumstantial evidence.
While the Superior Court was clearly moving away from the harsh sanction of dismissal, the Pennsylvania Commonwealth Court continued to apply the reasoning of Roselli and DeWeese.
In Schroeder v. Department of Transp. of Commw of PA, 676A.2d 727 (Commwlth. Ct 1996). In Schroeder, the Pennsylvania Commonwealth Court, which handles cases involving state entities, determined that the prejudice created by lost evidence was so great summary judgment should be granted. Schroeder involved an automobile accident in which plaintiff, Gary Schroeder, was driving his truck southbound on a state road when he lost control of the vehicle. The truck crossed into the northbound lane of the roadway, struck an embankment and turned over. At the time of the accident the Pennsylvania Department of Transportation ("Penndot") was performing construction work on the road which involved cutting away berm alongside of the road.
The spoliation issue in Schroeder arose when Penndot sought to examine the remains of the cab of the truck and learned that the salvage company where the truck had been stored had sold off the parts. The theory against Penndot alleged by decedent's widow was creation of a dangerous road condition and failure to warn of its existence. Additionally, the decedent's widow asserted claims of negligence, strict liability and breach of warranty against the (manufacturer of the seller of the truck) alleging that it was not crash worthy. It was alleged by Penndot, as well as the truck manufacturer and seller that the plaintiff had failed to meet the obligation to preserve the truck for purposes of litigation.
On appeal, the facts of Schroeder provided the Supreme Court an opportunity to address the conflicting opinions among different Superior Court panels and with the Commonwealth Court, at least insofar as it pertained to design defect cases.
After an extensive review of the above identified cases, the Supreme Court formally adopted the Federal Court approach to handling the spoliation of evidence as set forth in Schmid.
The Court's reasoned that "[f]ashioning a sanction for the spoliation of evidence based on fault, prejudice and other available sanctions, will discourage intentional destruction. The plaintiff's burden of proof at trial to establish that a defective product caused his injury, will protect defendants in cases where it is determined that summary judgment is not warranted based upon spoliation." The Supreme Court's decision appears to rest on the belief that a plaintiff is entitled to their day in court. Interestingly, two justices dissented from the opinion on the basis that although they concurred in the adoption of the Schmid test, when the test was applied to the facts in Schroeder, dismissal of plaintiff's case was still appropriate.
Schroeder, relying on the premise that a design defects case can still be proven by the use of exemplar products which presumably bears the same defect, resolved how to handle spoliation cases in design defect cases. The question which remained open was whether the Supreme Court would extend the holding in Schroeder; to the much more difficult question of a manufacturing defect where the plaintiff alleges that the defect existed only in the product that caused the injury and when that product is gone, the prejudice for the defendant is even greater. The answer to this question came on August 6, 1998. The Supreme Court denied allocatur to the Superior Court's decision in Dansak which applied the Schmid test to a manufacturing defect case.CONCLUSION
Emerging from the recent Pennsylvania Supreme Court decisions addressing loss or destruction of evidence is the adoption of a balancing test already utilized by federal courts to determine the appropriate sanction to apply, if any. As a practical matter, the adoption of this balancing test lessens the likelihood that a case will be dismissed because the actual product cannot be produced for inspection.