Three decisions by the Pennsylvania Superior Court dealing with spoliation of evidence and the admissibility of evidence in products liability cases may be of interest to manufacturers and their insurers.
Negligent Spoilation
In Elias v. Lancaster General Hospital, 710 A.2d 65 (Pa. Super. 1998), the court considered whether Pennsylvania law recognized a separate cause of action for spoliation of evidence. The plaintiff, Aziz Elias, fell while wearing a cardiac pacemaker. As a result of the fall, the pacemaker's lead wires were severed and became lodged in his heart. He was immediately taken to Lancaster General Hospital, where surgeons successfully removed the wires and replaced them with new wires. Nearly two years later, Elias asked the hospital to produce the wires so he could use them as evidence in a products liability action against the manufacturer, Pacesetter Systems, Inc. By that time, however, the hospital had discarded them. Elias never filed suit against Pacesetter because the physical evidence was not available, resulting in problems in proving a defect. He did, however, bring an action against Lancaster General, alleging negligent spoliation of evidence. The trial court sustained the hospital's preliminary objections and Elias appealed.
Generally, it is an adverse party that is accused of the spoliation. In Elias, the alleged "spoiling party" was not an adverse party, i.e., Pacesetter, but was instead a third-party. The Superior Court was unwilling to create a separate cause of action for spoliation of evidence. It said:
... we do not find it necessary to create an entirely new and separate cause of action for a third party's negligent spoliation of evidence because traditional negligence principles are available and adequate remedies exist under those principles to redress the negligent destruction of potential evidence. 710 A.2d at 68.
Applying traditional negligence doctrine, the court held that the critical question was whether a third party, i.e., one not involved in the underlying litigation (in this case, Lancaster General) had a duty to one of the parties to preserve the evidence relevant to that litigation. Id. Generally the law does not impose such affirmative duties absent the existence of a special relationship, be it contractual or otherwise. Id.
The court ultimately concluded that hospitals have no such duty to patients to preserve such evidence. The court reasoned:
Hospitals are in the business of providing health care; they are not in the business of warehousing artificial items extracted from their patient's bodies. Id. at 69. Nor are hospitals under a duty to protect a patient's "financial interests" by preserving evidence for subsequent litigation. Id. (citing Stupka v. Peoples Cab Company, 264 A.2d 373 (Pa.1970)).
Duty to Preserve Evidence
While the Elias case rejected a distinct cause of action for spoliation, the reference to traditional tort concepts based on "duty" arguably opens the door in cases where the parties are in some legally recognized relationship. Under Pennsylvania law, defendant manufacturers are generally entitled to various remedies where the plaintiff has failed to preserve an allegedly defective product, ranging from an adverse inference charge at trial to, on rare occasions, a grant of summary judgment dismissing plaintiff's case. Under Elias, such manufacturers may, provided they can establish that a duty to preserve the evidence exists, assert a spoliation claim against third-parties, or perhaps even plaintiffs, who may be responsible for the destruction of critical evidence. Such claims would be based on traditional negligence principles of duty, and breach of that duty, rather than upon any distinct cause of action for spoliation.
In Madonna v. Harley Davidson, Inc., 708 A.2d 507 (Pa. Super. 1998), the court considered whether evidence of plaintiff's intoxication would be admissible in a strict liability action brought under the Restatement (Second) of Torts § 402A. In Madonna, both parties agreed that an upper mounting bolt on the brake caliper of the front wheel was defective, subject to recall, and if it broke during operation, could cause the driver to lose control of the motorcycle. Defendant contended that the accident occurred solely as a result of driver error. To support this claim, Harley Davidson offered evidence that the driver, Charles Madonna, was intoxicated at the time of the accident. Id. at 508. Following a defense verdict at trial, the plaintiffs appealed, contending that the trial court erred in allowing evidence of Madonna's intoxication.
The court recognized the principle that negligence concepts are inapplicable in a strict liability case. "Evidence of a user's negligence cannot be introduced to excuse a defective product, nor can negligence be used to reduce recovery by comparing fault." Id. (citing Kimco Development v. Michael D's Carpet, 637 A.2d 603 (Pa. 1993)). In Madonna, however, the court held that evidence of plaintiff's intoxication was admissible because it was offered to prove that the accident occurred solely due to the condition of the driver, and not because of any defect in the product:
[A] user's negligence is not relevant if the product defect contributed in any way to the harm. However, where the defense offers evidence to establish that the accident was solely the result of the user's conduct, and not related in any way with a product defect, it is relevant and admissible for the purpose of proving causation.
Admissibility of Unread Warnings
In Duchess v. Langston Corporation, 709 A.2d 410 (Pa. Super. 1998), the court considered the admissibility of an operator's manual when the plaintiff testified he had never read it. Plaintiff, Donald Duchess, lost two fingers and part of a third while working on a Langston Saturn III Flexo-Folder Gluer, which fabricates corrugated boxes. In order to clean dry ink from the printer section of the machine, Duchess pressed a button that was designed to stop the machine. He was unaware, however, that the wiper roller would continue to run. While adjusting the spray nozzle, Duchess' gloved hand touched the wiper roller and was drawn into the nip point of the machine.
At trial, plaintiff's counsel sought to introduce the operator's manual into evidence since it incorrectly indicated that the entire machine would stop when the stop button was depressed. Id. at 411. The trial court ruled the manual inadmissible as irrelevant, since Duchess testified that he had never read it.
On cross-examination, Duchess was shown a picture of a warning label on the Saturn III which advised users to read the owner's manual. Duchess was then asked whether he was concerned by the fact that his employer never gave him the manual to read. He was also cross-examined as to whether he paid attention to warnings. Plaintiffs again moved for admission of the owner's manual to show that it would not have prevented the accident since it incorrectly indicated that the entire machine would be shut down when the stop button was depressed. Id. at 412. This motion was denied by the trial court.
On appeal, the Superior Court reversed, holding that defendant had opened the door for the admission of the owner's manual by virtue of the cross-examination of the plaintiff. The Superior Court held that the cross-examination created the implication that the warning or instructions in the owner's manual rendered the machine safe:
Since Mr. Duchess had not read the manual, the manual was not relevant to this accident. By suggesting that the manual would have prevented these injuries, appellee opened the door to evidence, which was not otherwise admissible, that the manual would not have prevented the accident. Id. (citing Jamison v. Ardes, 182 A.2d 497 (Pa. 1962); Gigliotiv v. Machuca, 597 A.2d 655 (Pa. Super. 1991)).