Products liability.

• Author: Goetsch, Scott D.

RECENT cases in several jurisdictions have examined the consequences of the destruction of evidence in a products liability case. The issue of destruction usually arises when the plaintiff destroys the allegedly defective product before the defendant has had an opportunity to examine it. Depending on the circumstances of the destruction, courts have imposed sanctions, including jury instructions favorable to the defense and exclusion of the plaintiff's experts.

When the plaintiff has acted in bad faith in destroying the allegedly defective product, the courts allow an inference that the product was not defective and exclude the plaintiff's expert witness.(9)

Bad faith equals sanctions

In Dillon, the Eighth Circuit outlined the general rule: Where the plaintiff acts in bad faith and the defendant is thereby prejudiced, then the trial court may impose sanctions for the destruction of the product. The case arose from an accident allegedly caused by a defective seat restraint system in an automobile. The plaintiff's expert inspected the vehicle but destroyed the vehicle before the defendants had an opportunity to perform their own inspection.

Although the trial court found that the plaintiff had not acted in bad faith, the Eighth Circuit proceeded with its own analysis under an abuse of discretion standard and found that the plaintiff and its experts knew or should have known that the evidence was important to imminent litigation; therefore, the trial court did not abuse its discretion. The court disallowed the testimony of the plaintiff's expert and also granted a jury instruction that the destroyed evidence would be unfavorable to the plaintiffs.

In several instances, courts have dealt with situations in which the plaintiff did not act in had faith in destroying the evidence.(10) However, the absence of bad faith does not prevent a court from imposing sanctions as a result of the plaintiff's actions.(11)

In Unigard, the Ninth Circuit held that the district court did not abuse its discretion in excluding the plaintiff's expert witness. The plaintiff conducted an investigation of an allegedly defective space heater located on a boat destroyed by fire. The insurer, believing that it did not have a valid subrogation action, disposed of the evidence. Two years later, the insurance company hired new counsel, who then determined that the company had a valid claim.

The court found that the district court had broad discretion to impose sanctions on a...