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Oliver v. Stimson Lumber Co.12/22/1999
he third party's harmful conduct must be balanced in determining the standard of proof for causation in an independent cause of action for negligent or intentional spoliation of evidence. Balancing of such interests requires the plaintiff to show a nexus between the destroyed evidence and the impairment of proving the underlying suit.
While we agree that bringing an action for the underlying tort with the action for spoliation would be the most efficient approach, to require a plaintiff to either pursue and lose the underlying claim or demonstrate that the underlying claim is precluded is too harsh. Requiring plaintiffs to pursue futile lawsuits or to withhold relief from plaintiffs whose lawsuits have been severely hampered, but not precluded, by spoliation of evidence ignores the plaintiffs' interest in securing a reasonable recovery for a lost or impaired expectancy. Therefore, we hold that in order to prove causation, a plaintiff must show that: (1) the underlying claim was significantly impaired due to the spoliation of evidence; (2) a causal relationship exists between the projected failure of success in the underlying action and the unavailability of the destroyed evidence; and (3) the underlying action would enjoy a significant possibility of success if the spoliated evidence still existed. See Holmes, 710 A.2d at 851-52.
With respect to the third prong of causation, the standard of "significant possibility of success," is lower than the standard of "preponderance of the evidence." As such, a plaintiff must demonstrate a substantial and realistic possibility of succeeding, but need not demonstrate that such success was more likely than not. See Holmes, 710 A.2d at 852.
C. Damages
Generally, a plaintiff is required to prove damages with reasonable certainty. See Smith v. Zepp (1977), 173 Mont. 358, 370, 567 P.2d 923, 930. However, we have previously stated that when there is strong evidence of the fact of damage, a defendant should not escape liability because the amount of damage cannot be proven with precision. See Johnson v. Murray (1982), 201 Mont. 495, 506, 656 P.2d 170, 175 (citation omitted). In this regard, the United States Supreme Court noted early on that the speculative nature of damages should not bar recovery: Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his act. Story Parchment Co. v. Paterson Parchment Paper (1931), 282 U.S. 555, 563, 51 S. Ct. 248, 250, 75 L. Ed. 544, 548.
The speculative nature of damages is inherent in the uncertainties of proof relevant to the tort of spoliation of evidence. Thus, the interest of the plaintiff to recover the entire amount of damages that he would have received if the underlying action had been pursued successfully must be balanced with the defendant's interest in not providing the plaintiff with a windfall. The plaintiff should not be allowed to benefit more from the spoliation than he would have in the underlying suit. On the other hand, the defendant should be adequately punished for his offending conduct and should be required to adequately compensate the plaintiff for the loss of his ability to pursue the underlying suit. See Holmes, 710 A.2d at 853.
In taking these interests into consideration, it is necessary for the damages to be discounted to account for the uncertainties. Therefore, we hold that damages arrived at through reasonable estimation based on relevant data should be multiplied by the significant possibility that the plainti
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