What is Spoliation?
Legal Advice from Cohen, Placitella & Roth, Attorneys at Law
Whenever you think you may have a legal case, it is very important that you preserve the evidence to avoid what is known as ‘spoliation of the evidence.’ Spoliation is defined as the destruction of material evidence. This can arise when evidence is intentionally or unintentionally lost, altered, negligently withheld or destroyed by a party who has or should have had control over it. Spoliation can occur intentionally or as a by-product of circumstance or daily routine.
Spoliation can occur with regard to:
- a device (such as a medical device used in a medical malpractice case)
- a product (such as food items or other consumer products that cause significant injury, vehicles in product liability and auto accident cases, prescription drug in pharmaceutical liability and injury cases)
- the scene where the harm occurred (from alteration, destruction or contamination before an investigation can occur or failure to record where a duty to do so exists)
- documentation (lost, altered or discarded)
Where the plaintiff in a case causes the spoliation of the evidence, it can be seriously detrimental to their ability to recover from a products liability action. Spoliation is often an issue in the context where a person claims he has been injured by a defective product which he then discarded or lost. For example, in Roselli v. General Electric Company, plaintiffs filed suit after a coffee maker carafe exploded causing severe burns. It took the case three years before ensuing litigation began and in the course of that time the Plaintiffs and their prior counsel lost the glass fragments from the carafe. Summary judgment was consequently ruled in favor of the defendants, eliminating the plaintiff’s case. According to the courts, the plaintiff’s loss of the evidence deprived the defense of the most direct means of countering Plaintiffs’ allegations that the coffee maker was defective. [1]
In another case, Tenaglia v. Proctor and Gamble, Inc., plaintiff was injured while opening a cardboard box containing diapers. She injured her arm, applied ice and finished her shift. Later, the plaintiff reexamined the box to see why she had a problem opening it and discovered excessive glue on the box. She did not ask anyone in the office to keep the box, and later in the day, she knew the box was to be destroyed, in the normal course of work. The failure to keep the box resulted in her not having a legal case because she had a chance to keep the box but failed to do so. [2]
Spoliation can give rise to disastrous consequences because courts try to remedy spoliation by imposing sanctions on the spoliator. When deciding the severity of penalty for spoliation the Pennsylvania courts have adopted a three prong test weighing (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party, and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct. [3]
While the sanctions vary, they may include:
- Outright dismissal of the case
- An adverse inference jury instruction at the trial
- Summary Judgment to throw the case out early in the litigation
- Preclusion of evidence or expert testimony
The consequences are not always limited to sanctions within the primary lawsuit; increasingly, the courts are allowing the aggrieved parties to pursue an independent civil cause of action. There have been several cases throughout the years in which persons who were severely injured have been unable to receive justice in the courts, due to spoliation or lack of evidence. This is why it is important to preserve the evidence to give all parties a chance to assess liability. Some practical tips in the course of your investigation:
- If in doubt if the item will be needed, do not throw it out (including all documents, manuals, contracts, and such)
- Videotape and use a tape measure to document any scene investigation
- Think like the third party target (what would you want to consider your liability if you were in their shoes?)
- Keep a sample from the accident scene (where applicable)
- Keep the defective product
Working together with counsel can help you with the liability investigation and increase your potential recovery. Contacting an attorney as soon as the incident occurs is very important. An attorney will be able to provide services needed to help collect the evidence needed and help preserve the evidence you have access to today that will be needed tomorrow. Cohen, Placitella & Roth has years of experience, working successfully to litigate major complex civil litigation cases involving injury. If you believe you may have a case, or would like to learn more about our practice, please contact us at (888) 375-7600 or visit us on our website of www.cprlaw.com. We look forward to working with you!
References:
- Roselli v. General Electric Company 410 Pa. Super. 223, 599 A.2d 685 (Pa. Super. 1991).
- Tenaglia v. Proctor and Gamble, Inc. 737 A.2d 306 (Pa.Super. 1999). .
- Schroeder v. Commonwealth Department of Transportation, 710 A.2d 23 (Pa. 1998).
