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Abraham v. Great Western Energy11/24/2004
nference, and the jury may infer that the fact would have helped prove negligence; a court's refusal may be an abuse of discretion. Indeed, some courts have held that such destruction creates a presumption that shifts the burden of production, or even persuasion, to the party responsible for the destruction.
Where the evidence, rather than being destroyed, has been tampered with in bad faith, a court also has the option of excluding it to deny the tampering party any use of it. Where the alteration is not in bad faith and the alteration is not so egregious, however, the evidence itself should be admitted, together with information relating to how it was altered, and counsel may argue the issue to the jury.
Where the loss or destruction of evidence is not intentional or reckless, by contrast, some courts give the trial court discretion to admit or exclude testimony relating to the missing evidence, and discretion to give or withhold a "missing evidence" instruction. And, a court should refuse to give such instruction if the nonproduced evidence is cumulative or of marginal relevance.
2 Jones on Evidence Civil and Criminal , § 13:12 (1994 7th ed. and Supp. 2000) (footnotes omitted).
[ ] An annotation of this subject provides this guidance:
The cases collected in this annotation reveal that the effect of the loss or destruction of a product, or a critical component of a product, on the subsequent products liability claim depends on a number of varying circumstances. In making its determination whether to sanction the spoliating party, the court will consider the following: (1) whether the innocent party was prejudiced by loss of the evidence; (2) whether this prejudice can be cured; (3) the practical importance of the lost evidence; (4) the fault of the spoliator; and (5) what is the least onerous sanction that will effectively deter the offending conduct.
In a case in which the innocent party is in no way prejudiced by loss or destruction of the product, and circumstantial evidence of the claim is sufficient to make out a prima facie case, the court may choose not to impose any sanctions, . nor will sanctions be imposed if the person or party benefited by the spoliation was not at fault in any way with regard to the loss of the evidence and did not act intentionally or in bad faith. . A court may also hold that a sanction is inappropriate in a case in which the plaintiff contends that a design defect, as opposed to a manufacturing defect, caused the injury . In such a case, sufficient proof of the defect may be obtained from examining any one of the defendant's products, not merely the injury-causing product.
In a case in which one or more of the factors under consideration warrants imposition of a sanction against the spoliating party, the court may choose to instruct the jury on the "spoliation inference," i.e., inform the jury that the lost evidence is to be presumed unfavorable to that party; preclude the spoliating party from introducing expert testimony concerning testing on the missing product or other evidence concerning the product; or dismiss the plaintiff's claim or the defendant's defense or grant summary judgment to the innocent party.
Richard E. Kaye, Annotation, Effect of Spoliation of Evidence in Products Liability Action, 102 A.L.R.5th 99-100 (2002); also see Joseph Schneider and Edward M. Swartz, Liquefied Petroleum (LP) Gas Fires and Explosions, 14 Am.Jur. Trials 343, esp. §§ 6 (failure to test or inspect), 7 (failure to warn), 8 (failure to comply with safety standard or code), and 23 (odorization procedures) (1968 and Supp. 2001); Hay v. Peterson, 6 Wyo. 419, 432-41, 45 P. 1073 (Wyo. 1896).
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