Observations on Spoliation of Evidence in Pennsylvania Law

The law in Pennsylvania is well settled as to defining and sanctioning spoliation of evidence.  “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Pyeritz v. Com., 613 Pa. 80, 88 n.4, 32 A.3d 687, 692 n.4 (2011), quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999), citing in turn Black’s Law Dictionary 1401 (6th ed.1990).  “A plaintiff has a general duty to preserve relevant evidence where: (1) the plaintiff knows that litigation against the defendants is pending or likely; and (2) it is foreseeable that discarding the evidence would be prejudicial to the defendants.”  Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1270-71 (Pa.Super.,2001), citing Baliotis v. McNeil, 870 F.Supp. 1285, 1290 (M.D.Pa.1994).  See also, Pennsylvania Trust Co. v. Dorel Juvenile Group, Inc. 2011 WL 2789336, at 5 (E.D.Pa., 2011) (“A duty to preserve evidence arises when the party knows that litigation is pending or likely, and it is foreseeable that discarding the evidence would be prejudicial to the other party”, citing Creazzo v Medtronic. Inc., 903 A.2d 24, 29 (Pa.Super. 2006)).

Importantly, the duty of the plaintiff need not be defined in every instance as a necessity strictly to preserve the evidence; rather, “[a]t a minimum, if the plaintiff knows that a particular party is potentially responsible, in the absence of exigent circumstances the plaintiff should provide this party with the opportunity to inspect the evidence.” Mount Olivet Tabernacle Church, 781 A.2d at 1271, citing Baliotis, 870 F.Supp. at 1290.  “A party suffers some measure of prejudice if it is precluded from conducting its own independent investigation of the evidence to determine alternative causes.”  Thompson v. Lau, 2011 WL 8908211 (Phila. Cty., 2011), citing Mount Olivet Tabernacle Church, 781 A.2d at 1272.  The spoliation of evidence doctrine is intended to further the public policy of protecting defendants who may be unable to prepare a defense after the destruction or loss of an allegedly defective product.  Brotech Corp. v. Delmarva Chemicals, Inc., 831 A.2d 613 (Pa. Super., 2003).

In the event of spoliation, “[t]he decision whether to sanction a party, and if so the severity of such sanction, is vested in the sound discretion of the trial court.”  Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa.Super.1997).   In Schroeder v Com., Dept. of Transp., 551 Pa. 243, 710 A.2d 23 (1998), the Supreme Court adopted three factors the court must weigh in determining the appropriate sanction for spoliation: “(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.”  551 Pa. at 250, 710 A.2d at 27, citing Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3d Cir.1994).  “Appropriate sanctions include summary judgment on or the outright dismissal of claims, the exclusion of countervailing evidence, or a jury instruction on the spoliation inference.”  Walters ex rel. Walters v. Gen. Motors Corp., 209 F. Supp.2d 481, 490 (W.D.Pa., 2002) (emphasis added).

The nature of the claim is relevant to considering both the extent of spoliation, and the sanction to follow.  For example, while spoliation claims frequently arise in the context of design defect claims in products liability, courts typically assign a lesser sanction because prejudice to the opposing party is comparatively slight where the design defect can be assessed by examining an identical product.  See, e.g., Schroeder, 551 Pa. 243, 710 A.2d 23 (prejudice to defendants was not great, as defendants could comparably test and examine other trucks for the alleged design defect); Schmid, 13 F.3d at 80 (“We do suggest, however, that the potential for prejudice is much less in a design defect case.”).

On the other hand, if the spoliated evidence represents a unique, unreproducible condition, such as a manufacturing defect in a product (see, e.g., Creazzo, 903 A.2d 24), then the evidence loss is deemed highly prejudicial, generally resorting to summary judgment or dismissal of claims.  As to manufacturing defect claims, see, Lee v. Boyle-Midway Household Products, Inc., 792 F.Supp. 1001, 1005 (W.D.Pa.1992) (“Under Pennsylvania law, in a case in which plaintiff does not allege a defect in all of the defendant’s products, a defendant in a products liability case is entitled to summary judgment when loss or destruction of evidence deprives the defense of the most direct means of countering plaintiff’s allegations”), quoted in, Schmid, 13 F.3d at 80 (emphasis added by Schmid).  Similarly, the Walters case, involving a claim for a manufacturing defect of a lost Chevy Blazer, surveyed Pennsylvania law:

In O’Donnell v. Big Yank, Inc., 696 A.2d 846 (Pa.Super.1997), the court emphasized that the prejudice to a defendant in a single defect case generally is much more severe than in a design defect case because the spoiled product is forever lost and there is no way to test the particular product for the alleged defects. Nor is there any way to test for evidence reflecting abnormal use or reasonable secondary causes.  In such circumstances Pennsylvania case law generally recognizes that summary judgment is appropriate under the circumstances. See Roselli [v. General Electric Co., 410 Pa.Super. 223, 599 A.2d 685, 687 (1991)] (destruction of glass carafe precluded manufacturing defect claim because the plaintiff could not prove that the malfunction occurred in the absence of abnormal use or reasonable secondary causes and the defendant was materially hampered due to the inability to conduct examination and expert testing on the particular carafe in question); Tenaglia v. Proctor & Gamble, Inc., 737 A.2d 306, 309 (Pa.Super.1999) (destruction of cardboard box forming the basis for a manufacturing defect warranted summary judgment for the defendant because “[w]hen pursuing a cause of action for a manufacturing defect, the preservation of the product is even more critical than when pursuing an action on the basis of a design defect” and the defendant was prejudiced severely by the inability to examine the product in order to determine the cause, nature, and extent of the alleged defect).

Walters, 209 F.Supp.2d at 491-92 (emphasis added).

The foregoing review applies particularly in product liability cases, but spoliation issues also arise in negligence claims, such as slip-and-fall cases or other tort actions, where one party claims that the other party’s failure to produce certain evidence prejudices the seeking party.  In a products case, usually the defendant asserts spoliation defenses if the plaintiff cannot produce the subject product.  In a tort claim, the plaintiff may claim spoliation prejudice if the defendant cannot produce regularly-maintained records such as log sheets or surveillance video, any of which would have been produced in the regular course of business.  In any event, spoliation is a very fact-and-circumstance driven analysis that requires careful review of the evidence, and especially why certain evidence may not be available.  A recent case from federal court in Philadelphia shows just how fact specific the inquiry has to be.

In Breen v Millard Group, a slip-and-fall case at a mall involving claimed spilled soda, the federal court’s November 2016 opinion considered whether the Mall Defendants’ negligence could be shown by their failure (1) to record on the regular inspection records, either the liquid on the floor, or plaintiff’s fall; (2) to produce any incident report, or (3) to retain and produce video surveillance of plaintiff’s alleged fall.  In short, plaintiff raised a question as to whether the floors were inspected on schedule.  The issue was not strictly of spoliation, but very comparable to one, insofar as the plaintiff was trying to use evidence that wasn’t there, like the dog that didn’t bark, to claim defendants were negligent.

The Court rejected the argument, observing there was no evidence that the floor was not inspected as scheduled (every half-hour); there was no evidence that the Mall Defendants had incident reports or video footage in their control at a time that litigation was foreseeable, or that they destroyed or withheld evidence to prevent its use in litigation. Without such evidence, the Court concluded, there can be no spoliation.  Moreover, there was no evidence that plaintiff even reported her fall to the Mall Defendants (she may have spoken to a security representative, but that service was not a party to her case).  On this record, the Court wrote, it could not conclude that there was an open question as to whether relevant evidence was lost, withheld, or destroyed by Mall Defendants to avoid its use in foreseeable litigation. Thus, plaintiff’s argument that the lack of documentation permits an inference of negligence was rejected.

In a property damage subrogation claim, Liberty Mutual v Sanders, also decided in November 2016, the Pennsylvania Superior Court in its slip opinion (at docket 1570 WDA 2015) affirmed the trial court’s grant of summary judgment for the defendant, a student in a dorm who was cooking on a school-supplied stove when a fire started.  The school had disposed of the stove without permitting Sanders to inspect or test it, and even the school conceded they had never inspected it.  Plaintiff conceded most facts of disposal, but contended that Sanders had had a chance to inspect the stove, claiming that the stove was repaired and put back in service before it was replaced.  The trouble was, there was absolutely no evidence that that history was true, and in fact the appellate court concluded that plaintiffs “are misrepresenting the record.”  Much of the remainder of the opinion addressed what sanction should be imposed, and whether outright dismissal (versus a lesser sanction such as a jury charge) was warranted.  Due principally to missteps by plaintiff counsel in the defense of the summary judgment motion, the appellate court concluded that lesser spoliation sanctions had been waived by plaintiff.  Candidly, Liberty Mutual v Sanders stands as much as a reminder on how not to prosecute a fire subro case, where ensuring the opportunity to inspect a fire scene so as to avoid spoliation defenses, is probably the cardinal rule.