Logan v. Cooper Tire and Rubber Company
Filing
322
OPINION & ORDER: 1) 203 / 204 Motion in limine to preclude evidence re missing or spoliated evidence is GRANTED. 2) Pla, her attys, and all witnesses are prohibited from referring to, commenting on or attempting to introduce at trial any evidence at issue in this motion. 3) 203 / 204 Motion for a jury instruction on missing or spoliated evidence is DENIED. Signed by Judge Karl S. Forester on 8/3/2011. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 10-3-KSF
KIM LOGAN, as Legal Guardian for
JAMES O. GUMM, JR.
PLAINTIFF
and
KENTUCKY CABINET FOR
HEALTH & HUMAN SERVICES,
THE UNIVERSITY OF KENTUCKY
AND KENTUCKY MEDICAL SERVICES
FOUNDATION
v.
INTERVENING PLAINTIFFS
OPINION & ORDER
COOPER TIRE & RUBBER COMPANY
DEFENDANT
**********
This matter is before the Court upon the motion in limine [DE #203/204] of the defendant,
Cooper Tire & Rubber Company (“Cooper Tire”), to preclude evidence relating to missing or
spoliated evidence and for a jury instruction on missing or spoliated evidence. This motion is fully
briefed and is ripe for review. For the reasons set forth below, Cooper Tire’s motion will be granted
in part and denied in part.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This civil action arises out of a one-vehicle automobile accident which occurred on Interstate
64 in Montgomery County, Kentucky on February 12, 2009. At the time of the accident, James O.
Gumm, Jr. was driving a 1994 Chevrolet C2500 pickup truck in the westbound lane when the left
rear tire of his truck failed. Gumm lost control of the vehicle, crashed, and was rendered a braininjured quadriplegic as a result of the accident. This products liability action was subsequently filed
by Kim Logan, Gumm’s legal guardian, on January 4, 2010 against Cooper Tire and Rubber
Company (“Cooper Tire”), the manufacturer of the failed tire. [DE #1].
Cooper Tire has filed this motion in limine based on the fact that the companion wheel and
other items relating to the accident are now missing. Photographs from the accident scene on
February 12, 2009 show the wheel. The vehicle, along with the wheel, was subsequently moved to
a salvage lot in Lexington, Kentucky by Safe Auto Insurance Company, the legal possessor of the
vehicle. On February 21, 2009, Kim Logan photographed the vehicle and these photographs also
show the wheel. On February 27, 2009, the vehicle was photographed by an investigator with Safe
Auto Insurance. The photographs indicate that the vehicle had been relocated on the salvage lot and
the wheel is not visible in these photographs.
On April 29, 2009, Logan contacted Richard Melton of the Newsome Law Office to discuss
the possibility of filing a lawsuit. Although Logan did not retain the Newsome Law Office at the
time, Melton sent a spoliation letter to Safe Auto on April 29, 2009, requesting that the vehicle and
its components be preserved. The vehicle and its components remained at a salvage lot in Lexington,
Kentucky until June 29, 2009, when it was mistakenly sold for parts and moved off the lot. On July
30, 2009, an investigator working for Melton went to the vehicle’s new location, Moyer Auto
Salvage Yard, to confirm the vehicle’s location. At that time, he discovered the subject wheel and
engine were no longer with the vehicle. On August 10, 2009, Logan retained the Newsome Law
Firm, who then purchased the vehicle and moved it to storage. On October 14, 2009, she was
appointed guardian for Gumm and began acting with legal authority for him. Cooper Tire was not
notified of the accident until the plaintiff’s complaint was filed on January 4, 2010, approximately
five months after the plaintiff learned that the wheel was missing.
In addition to the missing wheel and engine, Cooper Tire also complains that other evidence
is missing. For example, the Chevrolet Owner’s Manual is missing, and the plaintiff has never
produced the vehicle title, registration, and insurance information. Finally, Cooper Tire complains
that the plaintiff failed to maintain or measure the air pressure in the companion front tires at the
time of the accident.
Cooper Tire contends that the plaintiff knew the vehicle and its contents would be relevant
to litigation, perhaps as early as late February 2009, but certainly by April 28, 2009 when she
contacted an attorney. This knowledge, according to Cooper Tire, triggered a duty to preserve and
not destroy evidence. According to Cooper Tire, this evidence is relevant to Cooper Tire’s defense
that the subject tire failed for reasons unrelated to a defect. Cooper Tire thus seeks to preclude the
plaintiff from referring to, commenting on, or otherwise attempting to introduce at trial any evidence
which the plaintiff has not properly preserved. Additionally, Cooper Tire seeks a jury instruction
on missing or spoliated evidence. While the plaintiff does not appear to oppose Cooper Tire’s
motion in limine to preclude evidence related to the missing items, the plaintiff does oppose a jury
instruction on missing or spoliated evidence.
II.
ANALYSIS
Because the plaintiff does not object to Cooper Tire’s motion in limine to preclude evidence
related to the missing items, the Court will grant Cooper Tire’s motion. The parties do disagree on
whether or not a jury instruction on missing or spoliated evidence is justified in this case. Cooper
Tire argues that based on Kentucky’s law on spoliation, it is entitled to a spoliation instruction. Until
the Sixth Circuit’s decision in Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009), courts in the Sixth
Circuit had a policy of applying the substantive law of the forum state as it pertained to exclusion
of evidence based on spoliation of evidence. See Welsh v. United States, 844 F.2d 1239, 1245 (6th
Cir. 1988), overruled by Adkins. Adkins, however, overruled the Welsh line of cases and held that
in cases litigated in federal court, federal law governs the issue of whether evidence should be
excluded based on spoliation. Adkins, 554 F.3d at 651. Adkins also granted district courts “broad
discretion in crafting a proper sanction for spoliation.” Adkins, 554 F.3d at 652.
In order to be entitled to an instruction on spoliation, the party seeking the adverse inference
instruction must establish the following: “(1) that the party having control over the evidence had an
obligation to preserve it at the time it was destroyed; (2) that the [evidence] was destroyed ‘with a
culpable state of mind;’ and (3) that the destroyed evidence was ‘relevant’ to the party’s claim or
defense such that a reasonable trier of fact could find that it would support that claim or defense.”
Beaven v. U.S. Dept. Of Justice, 622 F.3d 540, 553 (6th Cir. 2010) citing Residential Funding Corp.
v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2nd Cir. 2002). Even assuming, arguendo, that the first
and third prongs are met, Cooper Tire has failed to demonstrate a culpable state of mind.
A culpable state of mind can result if a party destroys evidence that the party “should have
known . . . may be relevant to future litigation,” if the evidence is destroyed “knowingly, even if
without intent to breach a duty to preserve it, or negligently.” Beaven, 622 U.S. at 553. Here,
however, there is simply no culpable state of mind. The plaintiff, even before being appointed as
Legal Guardian for Gumm, acted as a reasonable person in photographing the vehicle at the salvage
yard in February 2009 and in contacting an attorney and ultimately being appointed as his legal
guardian. At that time, the vehicle was in the legal possession of Safe Auto, and she had no authority
or responsibility to take any action at all. The law firm contacted by the plaintiff on April 28, 2009
took reasonable steps to ensure that the legal possessors of the vehicle maintained its integrity by
issuing the litigation hold letter on April 29, 2009. The fact that Safe Auto mistakenly sold the
vehicle for parts cannot be attributed to the plaintiff or her counsel. Accordingly, Cooper Tire is not
entitled to a spoliation instruction based on the missing wheel, engine, and other items.
Additionally, to the extent that Cooper Tire contends that it is entitled to a spoliation
instruction based on the missing owner’s manual, spare tire, vehicle title, registration, and insurance
information, Cooper Tire has failed to show how this evidence is relevant to its claims in this case.
Finally, the Court refuses to impose any affirmative duty on the plaintiff, a person with no authority
over the vehicle until she was appointed guardian in October 2009, or Gumm, an incapacitated
individual, to measure the air pressure in the companion front tires at the time of the accident.
Cooper Tire has not cited any authority which would justify a spoliation instruction based on these
facts.
III.
CONCLUSION
For the reasons set forth above, the Court, being fully and sufficiently advised, hereby
ORDERS as follows:
(1)
Cooper Tire’s motion in limine to preclude evidence relating to missing or spoliated
evidence [DE #203/204] is GRANTED;
(2)
the plaintiff, her attorneys, and all witnesses are prohibited from referring to,
commenting on, or otherwise attempting to introduce at trial any evidence at issue
in this motion; and
(2)
Cooper Tire’s motion for a jury instruction on missing or spoliated evidence [DE
#203/204] is DENIED.
This August 3, 2011.
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