Mayes v. Black & Decker CV-94-376-SD 07/16/96 P UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William M. Mayes; Patricia M. Mayes

v. Civil No. 94-376-SD

Black & Decker (U.S.), Inc.

O R D E R

In this diversity action, plaintiffs William and Patricia

Mayes1 assert claims of negligence and strict liability against

defendant Black & Decker (U.S.), Inc., for alleged inadeguacies

in the design and manufacture of an electric coffeemaker.2

Presently before the court is defendant's motion to dismiss

due to alleged spoliation of evidence or, in the alternative, to

1The court notes that on December 28, 1994, William and Patricia Mayes v. Black & Decker (U.S.), Inc., Civil No. 94-376- SD, was consolidated with Allstate Insurance Company v. Black & Decker (U.S.), Inc., Civil No. 94-534-SD. For the sake of clarity, and simply for the purposes of the instant order, the court will refer to all plaintiffs as either "plaintiffs" or "Mayes".

2The coffeemaker at issue bears a label of General Electric, whose Housewares Operation division was purchased by Black & Decker in April of 1984. See January 6, 1992, Letter from Gloria Fusco to William Mayes (attached to Plaintiffs' Objection as Exhibit B ) . exclude expert testimony. Plaintiffs object.3

Background

On or about November 24, 1991, plaintiffs resided in a

single-family dwelling in Windham, New Hampshire. Sometime

during the early morning hours of the 24th, a fire began inside

the home and partially destroyed the premises.

After the conflagration was abated by the Windham Fire

Department (WFD), an investigation was conducted by WF D 's fire

inspector, Ronald L. Hoegen, who determined that the epicenter of

the fire was located in the home's kitchen area. Specifically,

Inspector Hoegen focused on the countertop area to the left of

the kitchen sink. Appliances and items located in this area

included, inter alia, a scale, an under-cabinet toaster oven, an

automatic coffeemaker, the dishwasher, and an electric light

fixture.

Inspector Hoegen seized into evidence the scale, the toaster

oven, the coffeemaker, and the electric outlet assembly to which

3Defendant additionally moves to file a reply memorandum. Such motion (document 23) is herewith granted, over plaintiffs' objection. The memorandum is docketed as of the date of this order and has been considered by the court in making the rulings herein.

2 both appliances were connected.4 Although both the light fixture

and the dishwasher were examined. Inspector Hoegen dismissed both

items as the cause of the fire.

Numerous photographs and a videotape were taken of and at

the scene. Although a representative from Allstate was on-site

the day after the fire, no independent investigation of the

premises appears to have been conducted by the insurance company

to determine the cause of the fire. Rather, the evidence and

photographs taken by Inspector Hoegen were forwarded to an expert

retained by the insurance company for analysis.5 In both his

initial report, dated the day of the fire, and his final report,

dated August 7, 1992, Inspector Hoegen determined the cause of

the fire to be the electrical failure of the defendant's

coffeemaker.

On November 25, 1991, following Inspector Hoegen's initial

investigation, custody over the premises was released to the

plaintiffs. Some ten days later, a cleaning company packed

whatever of plaintiffs' property remained on the premises and

4Such assembly included the entire outlet as well as ten or twelve inches of the wall wiring and the cords for both the toaster and the coffeemaker. Deposition of Ronald L. Hoegen at 136-37 (attached to Plaintiffs' Objection as Exhibit C ) .

5No report subseguent to such analysis appears in any of the parties' filings to the court, but from all that is before the court it appears that plaintiffs' expert's conclusion is consistent with that of Inspector Hoegen.

3 moved it to plaintiffs' temporary housing. Actual demolition and

reconstruction of the premises did not begin until after the 25th

of December, one full month following the event at issue.

Discussion

The court notes at the outset that " [d]ismissal with

prejudice 'is a harsh sanction,'" Beniamin v. Aroostook Medical

Ctr., Inc.,

(1st Cir. 1995) (guoting Richman v.

General Motors Corp.,

(1st Cir. 1971)), "which

runs counter to [this Circuit's] 'strong policy favoring the

disposition of cases on the merits,'"

(guoting Zavala

Santiago v. Gonzalez Rivera,

(1st Cir. 1977)).

Although the Circuit "'wholeheartedly endorse[s] the use of stiff

sanctions, including dismissal [with prejudice], where

appropriate,'" id. at 108 (guoting Velazguez-Rivera v. Sea-Land

Serv., Inc.,

(1st Cir. 1990)) (alteration in

Benj amin), "such an option should be employed only when a

plaintiff's misconduct is particularly egregious or extreme,"

at 107 (citing Estate of Solis-Rivera v. United States,

(1st Cir. 1993) )

(other citation omitted); see also Northern Assurance Co. v.

Ware.

, 282 n.2 (D. Me. 1993) (Gene Carter, C.J.)

(noting "that the most severe sanction of dismissal should be

reserved for cases where a party has maliciously destroyed

4 relevant evidence with the sole purpose of precluding an

adversary from examining that relevant evidence")-

In the view of the court, there has been no showing of

willfulness or that the allegedly relevant evidence--namely, the

dishwasher and oversink light fixture--was destroyed out of a

specific malicious intent to put same beyond the reach and

inguiry of defendants' experts. Accordingly, the court herewith

denies defendant's motion insofar as it seeks the dismissal of

plaintiffs' claims.

The more pertinent inguiry, therefore, is whether

plaintiffs6 should bear an evidentiary sanction for their conduct

following the completion of Inspector Hoegen's investigation.

See Northern Assurance Co., supra,

; Headley v.

Chrysler Motor Corp.,

(D. Mass. 1991). Such

inguiry is controlled by federal, rather than state, law. See,

e.g.. Chambers v. NASCO, Inc.,

(1991)

(district court possessed of inherent power to sanction parties

in appropriate cases); accord Allstate Ins. Co. v. Sunbeam Corp.,

(7th Cir. 1995) ("the federal rules of procedure

and evidence always apply in federal litigation, whether or not

6Both the Mayeses and Allstate face the imposition of sanctions under the circumstances stated herein. See Baliotis v. McNeil,

(M.D. Pa. 1994) ("Since [the insurance company] authorized the destruction of indisputably relevant evidence, it and its insureds . . . are subject to sanctions.") .

5 they determine the outcome" (citations omitted)); Northern

Assurance C o ., supra,

n.3;

("To the extent that defendant seeks preclusion of

evidence, the admissibility [or, conversely, inadmissibility] of

evidence is governed by the Federal Rules of Evidence, even in

diversity cases." (Footnote omitted; brackets in original.)).

A five-factor test has been developed as an aid in

undertaking such inguiry:

(1) whether the defendant was prejudiced as a result of [the destruction of the evidence]; (2) whether the prejudice can be cured; (3) the practical importance of the evidence; (4) whether the plaintiff was in good faith or bad faith; and (5) the potential for abuse if the evidence is not excluded.'"

Northern Assurance Co., supra,

(guoting

) (guoting Lewis v. Darce Towing

Co.,

(W.D. La. 1982))). Although

"prejudice vel non inuring to the adversary,"

(footnote omitted), is a threshold reguirement, a

showing of actual prejudice is not reguired in order to obtain

the reguested evidentiary sanction, see

at 365 n.ll.

What perhaps most distinguishes the instant case from the

wealth of reported decisions weighing the spoliation issue--both

within and without this circuit--is the fact that, unlike here,

the piece of evidence destroyed in the other cases is the

putative defective product or item. See

(collecting

6 cases). Here, however, defendants' experts had access to and

based their reports upon inspection of not only the accused

coffeemaker, but also upon photographs and a videotape of the

scene, the toaster, the electrical receptacle, the mechanical

scale, x-rays of the coffeemaker, and plaintiffs' expert's

report. See Affidavit of John J. Ferrara 55 3-4 (attached to

Defendant's Motion as Exhibit I); Affidavit of Patrick J.

McGinley 55 5-6 (attached to Defendant's Motion as Exhibit J).

Thus, defendant's chief complaint is not that it is unable

to inspect the plaintiffs' principal piece of evidence, but

rather that plaintiffs' destruction of the scene and other

appliances has deprived it of the opportunity to posit other

ignition sources. See Ferrara Affidavit 5 10 ("It is my opinion

that the coffeemaker was not a cause of the fire. However, it is

also my opinion that given the insufficient investigation by the

local fire inspector, and the lack of preserved evidence, there

is inadeguate information from which to determine the precise

cause of the fire. Although the coffeemaker may be eliminated as

a cause, it is not possible to identify, with certainty, the

actual cause of the fire given the inadeguate documentation of

the scene."); McGinley Affidavit 5 12 ("Based on the information

available, it is my opinion that the fluorescent light fixture

was the most probable cause of the fire. However, the lack of

access to the light fixture, dishwasher, and/or photographs of

7 each prevents me from making a fully informed conclusion as to

the cause of this fire.").

In the view of the court, although defendant has been

prejudiced to a certain degree by the acts of plaintiffs in

permitting the fire scene and certain appliances located therein

to be destroyed without affording the defendant any opportunity

to inspect same first-hand,

,

("a manufacturer of a product that is allegedly

responsible for causing a fire is prejudiced if it cannot have

its own cause and origin expert inspect a fire scene for other

potential causes" (citation omitted)), such prejudice does not

rise to the level which would warrant either dismissal of the

case in its entirety or the preclusion of plaintiffs' expert from

testifying as to the cause of the fire. But see Northern

Assurance C o ., supra,

("If, in a single case,

one party is permitted, without sanction, to selectively

determine what relevant evidence is worthy of being preserved for

use in a possible suit and to destroy, without notice to a

potential adversary, other evidence, knowing of its potential

adverse relevance to the issues to be generated by the assertion

of claims, it will guickly become the routine practice that

important evidence will be destroyed for the sake of convenience and self-interest.")7

The court further finds and rules that the preservation of

the coffeemaker and defendant's experts' opportunity to inspect

same permits defendant to mount an able challenge to plaintiffs'

main trial theory--that an electrical failure of the coffeemaker

caused plaintiffs' damages. Dismissal or preclusion under these

circumstances would thus constitute reversible error. See Schmid

v. Milwaukee Elec. Tool Corp.,

(3d Cir. 1994);

c f . Northern Assurance Co., supra,

("the

appropriate remedy for Plaintiff's decision to allow destruction

of the burned dwelling without any reasonable effort to preserve

relevant evidence therein, or to afford reasonable notice to

likely adversaries that such was about to occur, is to prevent

Plaintiff from presenting in its case-in-chief the testimony or

conclusions of its expert").

This court would be remiss, however, if it were to merely

stand idly by and ignore--and effectively sanction--plaintiffs'

actions altogether. Under the circumstances of this case, there

remains the possibility that, upon establishment of an adeguate

foundation, "the trier of fact . . . may infer that the party who

7Although Northern Assurance Co. discusses the spoliation issue, it is factually inapposite to the case at bar because in that case the premises were ordered destroyed after the insurance company's expert and the local fire marshal each identified different causes of the fire, but the insurance company retained only the evidence pertaining to its own source theory.

9 [destroyed an item arguably relevant to an issue in a case] did

so out of a realization that the [evidence was] unfavorable."

Blinzler v. Marriott Int'l, Inc.,

(1st Cir.

1996) (citations omitted). "Before such an inference may be

drawn, there must be a sufficient foundational showing that the

party who destroyed the [evidence] had notice both of the

potential claim and of the [item's] potential relevance."

at

1159 (citing Nation-Wide Check Corp. v. Forest Hills Distribs.,

Inc.,

(1st Cir. 1982)).

Moreover, "[a]n adverse inference about a party's

consciousness of the weakness of his case . . . cannot be drawn

merely from his negligent loss or destruction of evidence; the

inference reguires a showing that the party knew the evidence was

relevant to some issue at trial and that his willful conduct

resulted in its loss or destruction." Vodusek v. Bayliner Marine

Corp.,

(4th Cir. 1995) (citing

). "Even then, the adverse inference is

permissive, not mandatory. If, for example, the factfinder

believes that the [evidence was] destroyed accidentally or for an

innocent reason, then the factfinder is free to reject the

inference."

(citing Jackson v.

Harvard Univ.,

(1st Cir.), cert, denied,

(1990); Anderson v. Cryovac, Inc.,

(1st Cir. 1988)).

10 Accordingly, defendant's alternative motion in limine to

preclude expert testimony must be and herewith is denied.

Whether the lesser sanction of a "spoliation inference" will be

imposed awaits the development of further testimony during the

course of the trial.

Conclusion

For the reasons set forth herein, defendant's motion to

dismiss or, in the alternative, motion in limine to preclude

expert testimony (document 21) is denied. Trial remains

scheduled for the two-week period commencing August 13, 1996.

SO ORDERED.

Shane Devine, Senior Judge United States District Court July 15, 1996

cc: Robert A. Backus, Esg. John E. Friberg, Esg. James S. Harrington, Esg.

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