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Westover v. Leiserv7/25/2005
iation has been established, the judge has the discretion to craft a remedy addressing "the precise unfairness that would otherwise result." Ibid. The remedies may range from an instruction that the jury may draw an adverse inference against the party who destroyed the evidence to the exclusion of evidence related to that which was destroyed. See Gath v. M/A-Com, Inc., 440 Mass. 482, 488 (2003). The latter sanction may result in the end of the case because the party against whom the exclusionary order is made is prevented from making out a prima facie case. See Fletcher v. Dorchester Mut. Ins. Co., supra at 550-551. "As a general rule, a judge should impose the least severe sanction necessary to remedy the prejudice to the nonspoliating party." Keene v. Brigham and Women's Hosp., Inc., supra at 235. Here, the motion judge's order excluding any testimony regarding the condition or appearance of the accident chair imposed the ultimate sanction on Brunswick because, as a result, Brunswick could not make out a prima facie case against Regal.
In imposing the exclusionary order, the motion judge ruled that without such an order, Regal would be unfairly prejudiced by Brunswick's negligent destruction of the accident chair. On appeal, Brunswick argues that the sanction was too severe and, in the circumstances of this case, Regal was not unduly prejudiced.
Regal argues that it was prejudiced by the negligent destruction of the accident chair because its experts could not examine the chair to ascertain whether Regal did manufacture it and, if so, whether there was a design defect in the chair.
In the rather unusual circumstances present, there was evidence that the chairs set aside by Gaul were substantially similar to the accident chair. Indeed, Regal's president stated that the chairs were similar to chairs Regal had manufactured. Thus, Regal's experts could examine those chairs in order to determine whether Regal had manufactured the accident chair.
Further, we note that Brunswick is alleging a design defect in the entire product line of all of the chairs of the same make and model as the accident chair. In design defect cases, "a party's examination of the individual product at issue may be of lesser importance as the design defect alleged can be seen in other samples of the product." Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 29 (1st Cir. 1998). Thus, Regal would not be prejudiced by the negligent loss of the accident chair because its experts (as well as Brunswick experts) could examine the secured chairs and present their opinions as to an alleged design defect.
We hold, in the circumstances of this case, that the motion judge's exclusionary order as to the condition or appearance of the accident chair was too severe, especially where Brunswick is claiming a design defect in an entire line of certain chairs. Therefore, a less severe sanction such as instructing the jury as to the inferences that may be drawn against Brunswick for its negligent destruction of the accident chair may be sufficient. In any event, we leave the appropriate sanction to the trial judge provided that he or she does not totally exclude all evidence as to the appearance and condition of the chair.
Accordingly, we vacate the exclusionary order of the motion judge and reverse the order granting summary judgment.
So ordered.
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