Vol. 5, No. 5, Pg. 28. There Is No Substitute: Spoliation of Evidence in Product Liability Suits.

• Author: By John F. Kuppens

South Carolina Lawyer

1994.

Vol. 5, No. 5, Pg. 28.

There Is No Substitute: Spoliation of Evidence in Product Liability Suits

28There Is No Substitute: Spoliation of Evidence in Product Liability SuitsBy John F. Kuppens"[A]n inspection of an automobile involved in an accident could yield information about: the angle of impact; the pre-impact speed of the vehicle(s); occupant movement; seat belt use; and occupant seating position. The inspection discloses physical facts that can be objectively analyzed to evaluate the allegations of defect. In many ways, this evidence is superior even to the testimony of an eyewitness, because the product is incapable of telling a lie to someone trained to interpret its witness marks."

Few lawyers would argue the difficulty of prosecuting a murder case without the corpus delicti or body of the crime. Yet civil suits frequently are brought and tried despite the absence of equally crucial evidence.

Sometimes the loss of evidence cannot be avoided, and courts have recognized this by admitting substitutes for lost or destroyed evidence under appropriate circumstances. See, e.g., Vaught v. Nationwide Mutual Ins. Co., 250 S.C. 65, 156 S.E.2d 627 (1967) (photographic or photostatic reproduction admissible when original cannot be produced).

However, in product liability suits--where the central issue in the case is whether the product itself was defective--there typically is no substitute for a lost or destroyed product. This article discusses the difficulties involved in trying a case without the allegedly defective product and the factors courts have considered when deciding whether to allow a lawsuit to proceed in the absence of the product.

As the number of product liability suits has continued to increase, courts have demonstrated a deeper understanding of the peculiar problems of proof inherent in these cases and have been more willing to punish spoliators. This willingness stems from a recognition that permitting claims of defective products to proceed despite the absence of the product itself encourages false claims and makes legitimate defense more difficult.

Allowing cases to proceed in the absence of the product puts the plaintiff (or its lawyer) in the position of deciding whether the case would be better with or without the product--often too great a temptation to resist. See Lee v. Boyle-Midway Household Products, 792 F. Supp. 1001, 1006 (W.D. Pa. 1992) (plaintiffs counsel had deprived manufacturer of its most direct defense by losing container of drain cleaner allegedly used; manufacturer would be entitled to summary judgment unless chain of custody of test sample could be established within two days). By sanctioningparties responsible for lost or destroyed evidence, courts promote the policy of trying cases on their merits.

Meeting the Plaintiff's Burden of Proof

The plaintiff has the burden of proving the existence of a defect in the product whether plaintiff is proceeding under strict liability, negligence or breach of warranty. See Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 335, 391 S.E.2d 868, 871 (Ct. App. 1990). Proving the defect often is quite difficult to do without the product, especially because in many cases the existence of a defect can only be shown with the assistance of an expert who has inspected the product. See Brown v. Ford Motor Co., 287 F. Supp. 906, 912...