Spoliation of Evidence: Not just an adverse inference sometimes

A recent decision by the Kansas Supreme Court in Superior Boiler Works, Inc. v. Kimball, 259 P.3d 676 (Kan. 2011) [PDF] highlights the issue of whether or not a party can be held independently liable for the tort of spoliation.  As we all know, a court has the power to grant a wide range of sanctions and/or relief based on a spoliation charge — a charge that a party who had control over key evidence in a case lost or destroyed that evidence.  Indeed, a court can give a party a slap on the wrist, an adverse inference, or even dismiss the complaint of a plaintiff or strike the answer of a defendant.

However, some jurisdictions have adopted spoliation of evidence as an independent tort – a cause of action for spoliation.  Not all jurisdictions have done this – in fact, the Kimball Court held that Kansas has not adopted such a theory.

What’s the law in your state?  South Carolina doesn’t acknowledge spoliation as giving rise to independent actions, either.  Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001).  A good starting point for determining the law in your jurisdiction is ALR’s “Negligent Spoliation of Evidence, Interfering with Prospective Civil Action, as Actionable” by Benjamin J. Vernia, which can be found at 101 A.L.R.5th 61.

As for the spoliation we are all familiar with, some states have different rules about actionable spoliation depending on whether the destruction was negligent or willful.  A good source of information about the “Intentional spoliation of evidence, interfering with prospective civil action, as actionable” can be found at 70 A.L.R.4th 984.

It’s important to know that, when you or your client is responsible for the loss of evidence, the story may not end with a slap on the wrist–you may be facing an amended complaint or counterclaim that could open your client up to additioanl liability.

Ear Candler Presents Issue of Fact

“Your Honor, don’t let stupidity create an issue of fact.”

Surely, someone, somewhere has uttered this sentence. Perhaps counsel for one of the defendants in Danaher v. Wild Oats Markets, Inc., No. 08-22930-DJW, 2011 WL 903878 (D. Kan. March 14, 2011). In a case with multiple defendants, Wild Oats Markets could not reach summary judgment on the plaintiff’s products liability claims related to ear candling. I have to admit that I was gainfully employed in the early 2000s and had not heard of the ear candling fad. Prior to reading the remainder of the post, I would recommend that you visit the Wikipedia page on ear candling, which contains such unintentionally humorous sentences as “According to medical researchers, [ear candling] is both dangerous and ineffective.”

The immediate takeaway from the case is that retailers should honestly consider whether carrying certain products is worth the risk of litigation. The basic facts of the case are as follows: Plaintiff buys an ear candle at Wild Oats in 2003. For some reason, by 2006, she still possesses the ear candle and decides that she would like to use it. She calls Wild Oats for a recommendation of an ear candler, they refer her to another store, and she eventually finds a person to perform the ear candling procedure, during which, Plaintiff inexplicably suffers a burn to her ear drum, when wax from the candle rolls into her ear. Although the manufacturer promulgated warnings about ear candles in the packaging, Plaintiff did not remember any warnings. Without reciting the entirety of the case, Plaintiff was able to survive a motion for summary judgment on warning defect and breach of implied warranty.

We may be somewhat defendant-friendly here at the blog, so let me offer potential defendants some advice. Do not sell devices designed to combust in the middle ear. It is not worth the $2 you will generate in revenue. Sell something else. In all seriousness, this product is at the very least some homeopathic harmlessness, but there should be some thought (foreseeable use) about the economics of the business. Is it reasonable to anticipate someone being injured from using the product in a reasonable way? If so, how much money can you make, taking into account the likely cost of insurance/litigation? It’s hard for me to believe that the manufacturer/distributor/retailer of the candle sat down with a lawyer at the inception of the business and the selling of this absurdity was determined to be an economically rational choice. But lawyers are good at telling entrepreneurs why things won’t work, and, if all entrepreneurs listened, we would not have such grand creations as the ear candle, Ford Pinto, or the Hindenburg. Today’s lesson is to examine the inventory that you sell for $10 or less. It might not be worth it.

Another Victory for the Defense when Suit was Filed Against "Alternative" Defendants

We here at Abnormal Use recently became aware of another successful motion for summary judgement for the defense in a products liability case where the Plaintiffs pled defendants “in the alternative.” See our prior post Filing Suit Against “Alternative” Product Manufacturers is Not Enough on Summary Judgment. This decision was from the state court in Crawford County, Kansas and involved three separate actions involving the same facts. Cabrello v. All Star Fireworks, Inc., et al., No. 2007-CV-164; Robinson v. All Star Fireworks, Inc., No. 2007-CV-165; and Roberts v. All Star Fireworks, Inc., et. al., No. 2007-CV-159.

On August 18, 2005, six individuals at Piedmont Display Fireworks and Fireworks Spectacular were tasked with loading a trailer full of boxes of pre-squibbed aerial fireworks shells. These shells were pre-squibbed with electric matches affixed to their fuses. As the boxes were being loaded, an explosion occurred and three of the six workers were killed. The Kansas Fire Marshal’s office concluded that the explosion was caused as a result of an ignition source inside the last box loaded into the trailer. Electric matches were identified as the source that ignited the fireworks shells. Plaintiffs, however, identified five different defendants that could have supplied the electric matches associated with the explosion.

Plaintiffs filed separate actions against these defendants for negligence, strict liability – product defect, and strict liability – failure to warn. Three defendants filed a motion for summary judgment arguing that Plaintiffs could not prove causation. Plaintiffs actually agreed that they could not prove which defendants’ product was involved but relied upon the theory of alternative liability in Section 433B of the Restatement (Second) of Torts that provides the following:

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

This Kansas court found no cases that indicated that Kansas had adopted this rule and found that even if a Kansas court had adopted this rule, Plaintiffs could not meet the elements required by the theory. To satisfy the elements of the theory, a plaintiff must still prove that the defendants were negligent before any liability can attach. In this case, there was no evidence establishing what products were in the box that initiated the disaster. Therefore, Plaintiffs could not prove which defendant was negligent, and the court granted summary judgment in favor of the defendants.

This opinion noted that 11 states had adopted the Restatement’s alternative liability theory. As in this case, even if a state has adopted the theory of alternative liability, plaintiff still might not survive a motion for summary judgment if he cannot identify what product caused the harm.

Bleeding Kansas? Not Any More!

No, today’s post is not a reference to Butler’s dismantling of my bracket when they defeated Kansas State to make this year’s Final Four. Furthermore, this post will not revisit the pre-Civil War conflict in the Kansas territory. Rather, today we will examine the recent decision handed down by United States District Court for the District of Kansas, Stephenson v. Honeywell Int’l, Inc., Nos. 07-2494-JWL, 07-2498-JWL, 07-2499-JWL, 07-2501-JWL, 2010 WL 1284469 (D. Kan. April 2, 2010).

The case arises out of a plane crash that occurred shortly after takeoff on January 21, 2005. Id. at *1. The crash resulted in the deaths of the pilot and all four passengers. Id. The Plaintiffs in this consolidated action were the heirs of the four deceased passengers. Id. The plane’s engines were manufactured by Honeywell’s predecessor-in-interest in 1979. Honeywell repaired the plane’s left engine in 2003 and subsequently declared that the engine was airworthy. Id. The Plaintiffs brought suit against Honeywell for wrongful death on three theories: (1) negligent repair of the left engine; (2) strict product liability; and (3) breach of implied warranty. Id.

The majority of the opinion dealt with each parties’ respective motions to exclude expert testimony. However, the most intriguing portion of the opinion was the court’s analysis of Honeywell’s Motion for Summary Judgment on the Plaintiffs’ strict liability and implied warranty claims. Honeywell argued that since it had only repaired the engine in 2003, Kansas law would not support a claim for strict product liability or breach of an implied warranty when there was not an accompanying sale of the product. Id. at *8.

The court began by recognizing the fact that the Plaintiffs had conceded that their claims for strict liability and breach of warranty were not based on an alleged defect in the engine when it was originally manufactured and sold in 1979. Id. The court then provided a brief summary of Kansas law with respect to strict liability and implied warranty claims. Specifically, the court stated that Kansas, with respect to strict liability claims, had adopted section 402A of the Second Restatement of Torts. Id. at *9. As such, liability attaches to one who sells a defective product. The court also reiterated that Kansas courts have required a plaintiff to show that the good’s defect was present when it left the manufacturer’s control and that an implied warranty arises out of a contract for the sale of goods. Id.

In response, the Plaintiffs argued that Honeywell’s repair of the left engine in 2003 was of such magnitude to have constituted a remanufacturing of the engine. Id. Nevertheless, the court stressed the fact that there was no evidence that the repair in 2003 constituted a sale: “[t]here is no evidence, however, that the title to the engine did not remain with the owner during repair or that the engine was re-sold by the defendant at that time.” Id. Furthermore, the court relied on Kansas law for the proposition that the term “manufacturer” includes one that remanufactures a product before its sale to a consumer. Id. Finally, the court held that under Kansas law, which is now in line with the majority of jurisdictions, a claim for strict liability or breach of an implied warranty will not extend to repair situations where there is not a sale of the product. Id.

Thus, in light of this opinion, it appears that the bleeding will now stop with regards to strict liability and breach of implied warranty claims arising out of a repair of a product that has already been sold.