Hauck v. Wabash National Corporation
Filing
122
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 34 MOTION to Dismiss for Spoliation. (cde)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LINDA HAUCK as personal representative
of the Estate of Deborah A. Chambers,
Plaintiff,
vs.
Civ. No. 18-471 KG/LF
WABASH NATIONAL CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Defendant’s Motion to Dismiss for Spoliation
and Supporting Brief (Motion to Dismiss), filed October 23, 2018. (Doc. 34). Plaintiff filed a
response on January 9, 2019, and Defendant filed a reply on January 23, 2019. (Docs. 71 and
74). On June 13, 2019, Plaintiff filed a surreply. (Doc. 106).
Defendant requests that the Court hold a hearing on the Motion to Dismiss. The Court,
however, has sufficient documentary evidence to decide the Motion to Dismiss without a
hearing. The Court, therefore, denies Defendant’s request for a hearing. Having considered the
Motion to Dismiss and the accompanying briefing, the Court also denies the Motion to Dismiss.
I. Background
A. The Complaint
On September 6, 2016, Deborah Chambers was driving a PT Cruiser that collided with a
semi-trailer, under-riding the side of the semi-trailer. (Doc. 1-1) at ¶¶ 19 and 22. Chambers died
as a result of the collision. Id. at ¶ 23. Plaintiff “originally pursued claims of negligence against
the truck driver and the trucking company involved in the collision (Spurlin Trucking).” 1 (Doc.
71) at 1. Plaintiff’s prior counsel settled those claims “outside the context of a lawsuit.” Id.
On April 6, 2018, Plaintiff filed her Complaint alleging that Defendant manufactured the
semi-trailer involved in the collision (the subject semi-trailer) and identifying the subject semitrailer as a 2000 Wabash DVCV semi-trailer, VIN 1JJV532W1YL629228. (Doc. 1-1) at ¶ 20.
Plaintiff alleged that the subject semi-trailer failed to have “any shield, guard or other device to
prevent vehicles … from under-riding the side of the” semi-trailer. Id. at ¶ 21. Consequently,
Plaintiff brought strict liability and negligence claims against Defendant for the defective and
unreasonably dangerous condition of the subject semi-trailer. Id. at ¶¶ 24-31.
The Court subsequently dismissed Plaintiff’s claims based on a 2000 Wabash DVCV
semi-trailer, VIN1JJV532W1YL629228, but allowed Plaintiff to amend her Complaint to allege
that a 2004 Wabash semi-trailer with a partial VIN of 876286 was the subject semi-trailer.
(Docs. 117-19, 121).
B. Facts Relevant to this Motion to Dismiss
1. The Spoliation
Following the collision, J & M Towing towed the PT Cruiser to Moriarty, New Mexico,
where the PT Cruiser was later transferred to Insurance Auto Auctions. (IAA). (Doc. 34-1) at 5.
IAA then sold the PT Cruiser to an auto parts company in El Paso, Texas, where is was
apparently demolished. Id. at 5-6. Plaintiff has no knowledge of the PT Cruiser’s current
whereabouts. Id. at 6.
On October 6, 2016, a month after the collision, Plaintiff’s attorney wrote a letter to
Spurlin Trucking requesting Spurlin Trucking to preserve the tractor and subject semi-trailer
1
“[I]t appears that Spurlin Trucking is no longer in business….” (Doc. 74) at 8.
2
because they would “be evidence in the Estate’s wrongful death claim” and Plaintiff’s expert
needed to inspect the tractor and subject semi-trailer. (Doc. 71-1) at 2.
At some point after the collision, McKinney Vehicle Services d/b/a McKinney Trailer
Rentals (McKinney) took possession of the subject semi-trailer and leased it to Elite Freight
Systems, Inc. (Elite). (Doc. 34-1) at 6. Elite, however, has not returned the subject semi-trailer
to McKinney. Id. Plaintiff has no knowledge of the current whereabouts of the subject semitrailer. Id.
Although the PT Cruiser and subject semi-trailer are unavailable, there are 35
photographs of the accident scene taken by a sheriff’s deputy, 3-D scans of the PT Cruiser
produced by Plaintiff’s accident reconstructionist, and 149 photographs of the PT Cruiser taken
by Plaintiff’s accident reconstructionist following the accident. (Docs. 71-3, 71-4, and 71-5).
Defendant maintains that Plaintiff’s accident reconstructionist also “had the opportunity to
inspect the trailer, although he apparently decided not to do so.” (Doc. 74) at 8.
2. Andrew Irwin’s Affidavit
Defendant retained an accident reconstructionist, Andrew Irwin, to reconstruct the
accident. According to Plaintiff, Irwin has not yet “undertaken the reconstruction of the
accident.” (Doc. 71) at 3. Nonetheless, Irwin provided an affidavit in support of this Motion to
Dismiss and Plaintiff deposed Irwin.
Irwin attests in his affidavit that reconstruction of the accident includes “determining the
speed and angle at which Ms. Chambers’ vehicle contacted the subject trailer.” (Doc. 34-2) at 2,
¶ 3. To calculate the speed of the PT Cruiser when it struck the subject semi-trailer, Irwin must
determine the “total amount of energy involved in the collision.” Id. at 3, ¶ 7. To make that
energy determination, Irwin typically “inspect[s] the trailer to determine what portions of it were
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deformed as a result of the collision.” Id. at ¶ 4. In addition, Irwin typically “inspect[s] the car
to determine which part of it initially contacted the trailer, and to make [his] own measurements
of the extent to which the vehicle was deformed as a result of the collision.” Id. at ¶ 5.
In this case, Plaintiff’s accident reconstructionist provided Irwin with “crush data” from
the PT Cruiser, “which is informative with regard to the amount of energy absorbed by the car
during the collision.” Id. at ¶ 6. Irwin, however, has not seen any “information that would be
informative with regard to the amount of energy absorbed by the trailer….” Id.
Irwin would also calculate the PT Cruiser’s “crash pulse,” “the amount of time between
the initial contact and the point at which Ms. Chambers’ car was brought to a stop.” Id. at ¶ 8.
Irwin states that “[t]he crash pulse is important in understanding the forces exerted on Ms.
Chambers’ body, which is important in determining the cause of injuries in cases such as this.”
Id. at 3-4, ¶ 8. Irwin, however, notes that “[w]ithout knowing the speed of Ms. Chambers’ car, a
crash pulse cannot be calculated with precision.” Id. at 3, ¶ 8.
Although Irwin has photographic evidence from which to determine the angle of impact,
“[a] physical inspection of the trailer would have provided more accurate information regarding
the location of the initial contact, how far Ms. Chambers’ car moved along the side of the trailer,
and the amount of deformation of the trailer along the path of impact.” Id. at 4, ¶ 9.
Irwin notes that the data Plaintiff’s accident reconstructionist downloaded from the
computer of the PT Cruiser, i.e., the black box, did not record any events, which “is unusual.”
Id. at ¶ 10. Irwin further notes that generally, “the inability to examine the car and the trailer
places [him] at a great disadvantage by requiring [him] to rely on data from one party, and not an
independent source.” Id. at ¶ 11.
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3. Andrew Irwin’s Deposition Testimony
Irwin testified at his deposition that he received the sheriff’s deputy’s photographs of the
accident scene and a copy of the sheriff’s accident report. (Doc. 71-2) at 3. Irwin also received
the sheriff’s deputy’s body cam footage, including audio recordings, taken at the scene of the
accident. Id. at 4. In addition, Irwin received the 3-D scans of the PT Cruiser created by
Plaintiff’s accident reconstructionist, video files based on the scans, and “the raw data that is
created as a process of creating that 3-D scan.” Id. at 4-6. The scanned data did not include a
scan of the undercarriage of the PT Cruiser. Id. at 5. Plaintiff further produced to Defendant the
149 photographs of the PT Cruiser taken by Plaintiff’s accident reconstructionist, although Irwin
testified he did not believe he had those photographs. Id. at 6.
a. Damage to the Undercarriage of the PT Cruiser
Irwin testified that, except for the undercarriage of the PT Cruiser, he could observe the
crush damage to the PT Cruiser by examining the 3-D scans. Id. at 7. Irwin would expect
damage to the undercarriage of the PT Cruiser considering the amount of “underride of the
vehicle” and would have preferred to look at the undercarriage to quantify that damage. Id. at 78. Irwin explained that any energy absorbed by damage to the undercarriage “would add to the
amount of energy brought into the crash by the PT Cruiser which would mean mathematically
that the car’s going faster as opposed to slower at impact.” Id. at 8. Without an opportunity to
examine the PT Cruiser, Irwin could not “put a number on how many foot-pounds of energy
might have gone into” the undercarriage components. Id. at 9. Irwin, however, acknowledged
that, even without information on the damage to the undercarriage of the PT Cruiser, the wreck
could be reconstructed but he would “definitely [be] shorthanded in terms of not being able to
see it and quantify it” and in defending his speed estimate on cross-examination. Id. at 9.
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Irwin also noted that he could use EDCRASH software to reconstruct the accident but it
may not capture evidence of additional energy absorbed through the movement of the PT
Cruiser’s power train. (Doc. 74-7) at 5, depo. at 32. To determine if the PT Cruiser’s power
train moved, Irwin would look underneath the PT Cruiser. Id. Irwin would also want to check
under the PT Cruiser to determine if engine and transmission mounts became deformed, or rear
axle assemblies shifted due to the absorption of energy at the time of the accident. Id. at 5, depo.
at 33. Irwin further testified that, other than the undercarriage and suspension of the PT Cruiser,
the 3-D scans and photographs would allow him to identify and evaluate damage to the entire PT
Cruiser. (Doc. 71-2) at 10.
b. Damage to the Front of the PT Cruiser
Even so, Irwin admitted that he could not ascertain from the 3-D scans the precise extent
of the damage to the front structures of the PT Cruiser. Id. at 10. In other words, he could see
damage to the surface of the front of the PT Cruiser but the superficial damage could be
“masking some structural damage behind that…” Id. Irwin indicated that he could use
EDCRASH to “quantify the amount of energy absorbed by the crush on the front of the vehicle
and also to quantify the force that was involved in creating that crush profile.” Id. at 15. Those
measurements aid in determining a “closing speed.” Id. Irwin also testified that depending on
the quality of the 149 photographs of the PT Cruiser, he might be able to determine “all of the
energy in the front structures of the car…” Id. at 16. If the quality of the photographs is not
good, Irwin would want to inspect the vehicle. Id.
c. Damage to the Greenhouse Structure of the PT Cruiser: the Trejo
Method
In addition to determining energy absorption by the PT Cruiser’s undercarriage and
front, Irwin would calculate the extent of the deformation of the pillars inside the PT Cruiser to
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see if the greenhouse structure of the PT Cruiser transmitted energy. Id. at 6, depo. at 34. Irwin
testified that one accepted method for determining the energies involved or absorbed by the PT
Cruiser’s greenhouse structure is based on an SAE 2003 paper, “A Scientific Approach to
Tractor-Trailer Side Underride Analysis,” written by Angela Trego and others. (Doc. 71-2) at
17; (Doc. 71-6). With the materials Irwin has, Irwin testified that he could use the Trego method
to estimate the energies involved or absorbed by the greenhouse structure of the PT Cruiser.
(Doc. 71-2) at 18-19. Nonetheless, Irwin noted that because the Trego method relied on older
vehicles with weaker roofs and “[t]o the extent that there’s other damage to either the PT Cruiser
or the trailer, it will most definitely underestimate the speed.” Id. at 25.
When asked about applying the Trego method in this case, Irwin testified that he believed
he had enough information to determine the angle of the impact, a factor in the Trego method.
Id. at 27-28. Irwin believed he could also determine the crush pattern and crush area of the PT
Cruiser’s roof and the deformation of the vehicle pillars to the extent he can see them in the
scanned data and photographs, other Trego method factors. Id. at 28.
To analyze the trailer interaction factors in the Trego method, Irwin testified he believed
he could determine whether the PT Cruiser struck the subject semi-trailer’s dollies and whether
the spare tire on the subject semi-trailer was involved in the crash. Id. at 29-30. Irwin testified
that although he is not sure that he could determine whether the PT Cruiser struck a spare tire
hanger, he could probably approximate “how many foot-pounds of energy it took to create some
hypothetical amount of hanger deformation.” Id. at 30. He believed that such an approximation
would satisfy Daubert. Id. at 31. Based on the accident scene photographs, Irwin ruled out the
involvement of any type of toolbox along the trailer. Id. at 31. Irwin further testified that
quantifying the interaction between the PT Cruiser and the subject semi-trailer would be “pretty
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tough to do” without the subject semi-trailer to inspect. Id. at 32. However, Irwin could obtain
from Defendant other information like the spacing between the floor joists of the semi-trailer and
the floor joists material, from which he could “generally” determine the type of forces necessary
to deform the floor joists. Id. at 33. Without seeing the subject semi-trailer, Irwin could not
determine “[e]xactly how much force it might take to create a particular amount of deformation”
to the floor joists. Id.
d. Other Reconstruction Methods
(1) SIMON Computer Simulation
In addition to the Trego method, Irwin explained that he would compare accident scene
photographs, post-accident photographs, and the 3-D scans with various SIMON computer
simulations using different speeds of the vehicles. Id. at 21. Irwin testified that he believed the
SIMON simulation “would provide a fair and reasonable reconstruction of this crash[.]” Id.
Irwin, however, was concerned that because he did not see the PT Cruiser, he would “potentially
[be] handicap[ped] when it comes to cross-examination….” Id. Irwin noted that without
measurements of the damage to the undercarriage of the PT Cruiser the SIMON analysis would
be hypothetical. (Doc. 74-7) at 7, depo. at 41. “[O]therwise, SIMON is a method with the right
amount of information that I think could be employed in this case to provide a reliable result.”
(Doc. 71-2) at 21-22. In other words, Irwin thought the SIMON simulation “would be
scientifically reliable and fulfill the strictures of Daubert or any other type of evidentiary rules.”
Id. at 22.
(2) Movement of Center of Gravity
Irwin further testified that he could employ a movement of center of gravity analysis to
reconstruct the accident. To use that method, an accident reconstructionist examines the
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accident scene photographs to map out the physical evidence to “figure out how the two vehicles
moved during the crash sequence or during the times relevant to the crash sequence….” Id. at
23. From that information, Irwin would measure the movement of the center of gravity and the
PT Cruiser. Id. Irwin testified that he thought he could utilize that method with the information
he had to reconstruct the accident. Id. Irwin further stated that a movement of the center of
gravity analysis “would be scientifically reliable and provide a fair and accurate reconstruction
of this crash[.]” Id. Moreover, Irwin testified that although a black box from the PT Cruiser
would have been helpful to an accident reconstructionist, he can still reach scientifically reliable
opinions without one. Id. at 44.
e. Calculating Force of the Subject Semi-Trailer
Irwin testified that he had not asked the owner of the subject semi-trailer for repair
records resulting from the crash. Id. at 39. Irwin was also unaware of any testimony by the
sheriff’s deputy or paramedic at the scene of the accident regarding the damage to the underside
of the subject semi-trailer nor did he seek that information from those individuals. Id. at 39-40.
If the subject semi-trailer was available, Irwin would look “at the overall shape of the
trailer” and inspect it for “minor deformation[s] that visually might not show up in the police
officer’s photographs which otherwise might show up if [he] scanned it and compared it to a
scan model of an undamaged trailer.” (Doc. 74-7) at 12, depo. at 75. Irwin would also look at
the subject semi-trailer’s suspension components. Id. at 12, depo. at 76. Irwin further testified
that at the time of his deposition, he could not quantify the amount of force the subject semitrailer contributed to the accident in order to calculate the ultimate speed of the PT Cruiser.
(Doc. 71-2) at 41. Even if Irwin could have seen the subject semi-trailer, calculating that force
would be “hard.” Id. at 41-42.
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f. Calculation of Crash Pulse
Irwin also admitted that he could not provide a precise crash pulse calculation. Id. at 42.
A “crash pulse is sometimes of interest to a biomechanical expert….” Id. Irwin did not know
whether his crash pulse calculation would be precise enough for a biomechanical expert. Id.
Nevertheless, Irwin testified that he believed he had enough information that he “would probably
be in a position at some point to quantify the approximate duration of the time of collision and
maybe the average rates of deceleration that are consistent with the evidence in the case.” Id. at
43.
g. Experience in Reconstructing Accidents Without a Passenger Vehicle
or Semi-Trailer
Irwin testified that he was retained in a separate case, Baker v. Lufkin, to reconstruct a
passenger vehicle/semi-trailer accident. Id. at 34. Like this case, Irwin did not have an
opportunity to inspect either the passenger vehicle or the semi-trailer. Id. Nonetheless, Irwin
offered accident reconstruction opinions that he believed were scientifically reliable by using (1)
EDCRASH “to determine energy absorption by the vehicle’s front bumper” and to determine
“damage to the spring hanger on the trailer,” (2) the Trego method to determine “energy
absorbed by the roof” of the passenger vehicle, and (3) EDSMAC, another reconstruction
software program, to analyze “how the vehicles moved post impact….” Id. at 34-35. In Baker,
Irwin relied on accident scene photographs and post-accident photographs of the passenger
vehicle to reconstruct the accident. Id. at 37-38. Irwin did not have any 3-D scans of the
passenger vehicle. Id. at 38. Irwin noted that the semi-trailer in Baker was similarly angled to
the subject semi-trailer in this case so the crush patterns between the passenger vehicle in Baker
and the PT Cruiser here are similar. Id. at 35. In fact, Irwin testified that in his 21-year career as
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an accident reconstructionist he has reconstructed accidents without being able to inspect one or
more of the vehicles on “many occasions.” Id. at 43-44.
II. The Motion to Dismiss for Spoliation
Defendant contends first that Plaintiff breached her duty to preserve the PT Cruiser and
the subject semi-trailer. Second, Defendant contends that Plaintiff’s failure to preserve the PT
Cruiser and the subject semi-trailer prejudices Defendant’s ability to defend the case. Finally,
Defendant contends that Plaintiff’s culpability and the nature of the prejudice to Defendant
warrant a dismissal of the case. Should the Court decide not to dismiss the case, Defendant,
alternatively, seeks “a jury instruction that the missing evidence would have been favorable to”
Defendant and an order precluding Plaintiff “from eliciting expert testimony regarding the trailer
or the car.” (Doc. 34) at 10. Plaintiff opposes the Motion to Dismiss in its entirety.
III. Discussion
As an initial matter, Defendant states that it “moved to dismiss this case for spoliation
under the assumption that the VIN identified in the [original] Complaint actually corresponded to
the subject trailer….” (Doc. 74) at 5. As noted, the Court dismissed the claims based on that
VIN. This Motion to Dismiss is not moot, however, because the Court allowed Plaintiff to
amend her Complaint to allege that another Wabash semi-trailer was the subject semi-trailer.
It is well-established that “[p]utative litigants are under an ‘obligation to preserve
evidence ... when the party has notice that the evidence is relevant to litigation or when a party
should have known that the evidence may be relevant to future litigation.’” Browder v. City of
Albuquerque, 209 F. Supp. 3d 1236, 1243 (D.N.M. 2016) (citation omitted). “Spoliation
sanctions are proper when ‘(1) a party has a duty to preserve evidence because it knew, or should
have known, that litigation was imminent, and (2) the adverse party was prejudiced by the
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destruction of the evidence.’” Turner v. Pub. Serv. Co. of Colorado, 563 F.3d 1136, 1149 (10th
Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir.
2007)). Furthermore, the “court has discretion to fashion an appropriate remedy depending on
the culpability of the responsible party and whether the evidence was relevant to proof of an
issue at trial.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 862 (10th Cir.
2005).
A. Duty to Preserve Evidence
“[A] party’s duty to preserve arises when it has notice that the [evidence] might be
relevant to a reasonably-defined future litigation.” Zbylski v. Douglas Cty. Sch. Dist., 154 F.
Supp. 3d 1146, 1164 (D. Colo. 2015). Plaintiff contends that neither she nor her counsel played
a role in the spoliation of the PT Cruiser and the subject semi-trailer. Plaintiff also contends that
she did not own, possess, or control the subject semi-trailer and that on October 6, 2016, her
attorney actually requested that Spurlin Trucking preserve the subject semi-trailer.
As a matter of law, the PT Cruiser became a property of Chambers’ estate. See “Estate,”
Black's Law Dictionary (11th ed. 2019) (defining “estate” as “property that one leaves after
death; the collective assets and liabilities of a dead person”). Upon Chambers’ death, Plaintiff,
as the personal representative of the estate, had a right to possess or control the PT Cruiser. See
NMSA 1978, § 45-3-709 (2014 Repl. Pamp.) (stating that “every personal representative has a
right to, and shall take possession or control of, the decedent’s property”); see also, e.g., AXIS
Ins. Co. v. Terry, 2018 WL 9943825, at *6 (N.D. Ala.) (acknowledging that “a party only has a
duty to preserve evidence within its custody, possession, or control, as that is the only sort of
evidence a party can preserve”). Moreover, Plaintiff contemplated litigation over the accident
prior to October 6, 2016, the date of her attorney’s letter to Spurlin Trucking. Consequently,
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Plaintiff had a duty to preserve the PT Cruiser at that time. Even after Plaintiff settled with the
truck driver and Spurlin Trucking, future litigation against the manufacturer of the subject semitrailer was reasonably foreseeable considering the PT Cruiser under-rode the side of the subject
semi-trailer. Cf. Edwards v. Hearst Commc'ns, Inc., 2017 WL 6458612, at *4 (S.D.N.Y.)
(finding no duty to preserve evidence when second lawsuit not reasonably foreseeable). Under
those facts, Plaintiff had both the right to possess the PT Cruiser and a duty to preserve the PT
Cruiser. Plaintiff, however, did not exercise that right to possess the PT Cruiser and, failing to
do so, breached her duty to preserve the PT Cruiser.
On the other hand, Plaintiff did not have custody, possession, or control over the subject
semi-trailer, which Spurlin Trucking or McKinney owned. Without custody, possession, or
control over the subject semi-trailer, Plaintiff did not have a duty to preserve the subject semitrailer. See, e.g., Barnes v. Harling, 368 F. Supp. 3d 573, 609 (W.D.N.Y. 2019) (citations
omitted) (noting that “obligation to preserve is attendant only upon ‘the party having control over
the evidence ... at the time it was destroyed’”); Smith v. Norcold, Inc., 2014 WL 5817258, at *6
(E.D. Mich.) (also noting that “duty to preserve evidence does not extend to evidence which is
not in a litigant's possession or custody and over which the litigant has no control”). Plaintiff’s
duty to preserve extends only to the PT Cruiser. Therefore, the Court will analyze the remaining
spoliation factors as they pertain to that particular duty.
B. Prejudice
The moving party carries the burden “to establish a reasonable possibility, based on
concrete evidence rather than a fertile imagination, that access to the lost material would have
produced evidence favorable to his cause.” Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167
F.R.D. 90, 104 (D. Colo. 1996). In other words, “[i]t is not enough for a party seeking spoliation
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sanctions … to raise an issue of theoretical prejudice—that prejudice cannot be known because
the documents and information no longer exist,” i.e., the “party seeking spoliation sanctions must
present evidence that it was actually prejudiced.” Linnebur v. United Tel. Ass'n, Inc., 2012 WL
2370110, at *3 (D. Kan.). “At the same time, courts must be careful that the application of this
burden is not too onerous, otherwise the spoliating party might be allowed to profit from its own
misconduct.” Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772, 801 (N.D. Tex. 2011).
Defendant concedes that neither it “nor Mr. Irwin contended that a reconstruction could
not be performed at all.” (Doc. 74) at 5, n. 9. Defendant argues that it is prejudiced because
Irwin would have to rely on incomplete and “unverified data from Plaintiff’s expert … without
the benefit of information regarding energy absorbed … by certain areas of the car.” (Doc. 74)
at 8. For instance, without any data on damage to the PT Cruiser’s undercarriage, Irwin
acknowledged that he could not “put a number on how many foot-pounds of energy might have
gone into” the undercarriage components. (Doc. 71-2) at 9. Without that kind of information,
Defendant asserts the energy calculation will be lower, thereby indicating that Chambers was
driving slower than she was.
Defendant cites Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001), for the
proposition that “a defendant should not be expected to rely upon its adversary’s data simply
because the party in control of the evidence made the decision to destroy it.” (Doc. 74) at 8. In
Silvestri, the plaintiff filed a products liability action against the defendant alleging that the
airbag in the vehicle he was driving did not deploy as warranted when he crashed into a utility
pole. Silvestri, 271 F.3d at 585. The plaintiff failed to give the defendant notice of his claim and
an opportunity to inspect the vehicle before he had the vehicle repaired. Id. Prior to repairing
the vehicle, the plaintiff’s attorney retained two accident reconstructionists, Carlsson and
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Godfrey, to inspect the damaged vehicle, visit the accident scene, and, then, “render expert
opinions regarding the circumstances of the crash.” Id. at 586.
Carlsson examined the vehicle and took photographs. However, he took only one
measurement of the vehicle and conducted no inspection of its undercarriage. While the
one measurement he took was a “crush” measurement, he made no note of the
measurement. At his deposition several years later, he “seem[ed] to recall” that the
“crush” measurement was 18 inches, but he could not definitely remember the
measurement. Similarly, Godfrey failed to make notes of any measurements that he may
have taken during his inspection. He did, however, photograph a ruler on the hood of the
vehicle to measure the extent to which the front of the hood was bent off centerline.
When inspecting the site of the accident, Godfrey failed to measure the skid marks left by
the vehicle, confessing that he formed his initial opinion about Silvestri's speed at the
time of the accident by “eyeball[ing]” the skid marks.
Id.
The Fourth Circuit agreed with the district court that the spoliation was “highly
prejudicial” to the defendant because the spoliation denied the defendant “access to the only
evidence from which it could develop its defenses adequately.” Id. at 594. The Fourth Circuit
noted that Defendant “could not develop a ‘crush’ model to prove that the airbag properly failed
to deploy” without “crush measurements taken at several places on the automobile.” Id. The
Fourth Circuit concluded that “the one crush measurement available was unreliable” because
Carlsson did not write it down. Id. The Fourth Circuit further observed that the defendant
“could not resolve the critical question of how [Plaintiff] injured his head” without examining
the vehicle. Id. Notably, the plaintiff’s experts inconsistently opined where the plaintiff hit his
head in the cabin of the vehicle and supported those opinions “on changed recollections about
the vehicle’s condition.” Id. The Fourth Circuit determined that
not only was the evidence lost to [the defendant], but the evidence that was preserved was
incomplete and indefinite. To require [the defendant] to rely on the evidence collected by
[the plaintiff’s] experts in lieu of what it could have collected would result in irreparable
prejudice.
Id.
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Plaintiff distinguishes Silvestre from this case by noting that in Silvestre there was only
one unreliable crush measurement. Plaintiff here provided Defendant extensive evidence
including a 3-D scan of the PT Cruiser as well as over one hundred photographs of the PT
Cruiser and the accident scene from which Irwin can calculate crush measurements. Plaintiff
further asserts, that unlike in Silvestre, “each of the innumerable crush measurements can be
independently calculated from the materials available, which include precise measurements from
the 3D[] scan.” (Doc. 71) at 12.
Defendant rejects these distinctions on the ground that it should not be expected to rely
on data created by Plaintiff’s accident reconstructionist which Defendant cannot verify. (Doc.
74) at 9. Silvestre, however, does not stand for such a general proposal. Rather, the Fourth
Circuit held that the defendant’s experts need not rely on scant unreliable evidence produced by
the plaintiff’s experts. In contrast to Silvestre, Defendant here does not specifically assert how
the photographs of the PT Cruiser and the 3-D scan produced by Plaintiff’s accident
reconstructionist are in themselves unreliable. In further contrast to Silvestre, Irwin testified that
he could reliably reconstruct the accident without those photographs and the 3-D scan by using
the movement of center of gravity method, which relies on the photographs taken by the sheriff’s
deputy at the scene of the accident, not on any data produced by Plaintiff’s accident
reconstructionist. Silvestre, therefore, is factually distinguishable from this case.
Defendant also cites Jordan F. Miller Corp. v. Mid-Continent Aircraft Serv., Inc., for the
proposition that prejudice necessarily occurs when the plaintiff’s expert had an opportunity to
inspect the vehicle prior to its spoliation while the defendant’s expert did not have such an
opportunity. 1998 WL 68879 (10th Cir.). In Jordan F. Miller, an airplane’s “left landing gear
collapsed, causing major damage to the airplane….” Id. at *1. “An FAA investigator inspected
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the airplane shortly after the crash and reported” on the cause of the landing gear collapse. Id.
Plaintiff Miller subsequently notified his insurance carrier about “the incident and made a claim
against his policy.” Id. The insurer retained counsel “to inspect the aircraft and adjust Miller’s
claim.” Id. Miller’s insurer then paid to repair the aircraft. Id. After the aircraft was repaired,
Miller sued the defendants for, among other things, “products liability, based on the collapse of
the left landing gear and various other alleged defects in the plane.” Id. “[A]ll but one of the
component parts of the left landing gear had been lost or destroyed.” Id. at *2. Notably, even
the plaintiffs’ “own experts had not had an opportunity to inspect or test the landing gear
components.” Id. Two experts retained by the defendants attested in affidavits “why a visual
inspection of all the components of the landing gear, as well as testing was critical to the
defense.” Id. at *6.
The Tenth Circuit affirmed the district court’s conclusion “that ‘hands-on inspection and
testing is critical to a fair trial and due process for the Defendants.” Id. The Tenth Circuit
observed that “without visual inspection and testing, the testimony of [the defendants’] experts
would be speculative at best.” Id. The Tenth Circuit also determined that “[g]iven that
plaintiffs’ agents had the opportunity to visually inspect the landing gear components and,
presumably, would testify that their observations supported a finding of liability on the part of
[the defendant], we cannot say that the district court erred in rejecting plaintiffs’ ‘level playing
field’ argument,” i.e., that the plaintiffs’ experts, like the defendants’ experts, did not have an
opportunity to inspect the landing gear components. Id.
Plaintiff argues that Jordan F. Miller is also distinguishable from this case in several
ways. First, Plaintiff notes “that Jordan F. Miller does not hold that hands-on inspection and
testing is always critical to a fair trial and due process.” (Doc. 71) at 13. Second, Plaintiff
17
contends that the defendants’ experts in Jordan F. Miller “asserted and explained why inspection
and testing were necessary without ever being impeached on those assertions.” Id. Plaintiff
observes that “Irwin’s conclusory statements in his Affidavit clearly conflict with his deposition
testimony acknowledging that hands-on inspection and testing is not required here.” Id. Third,
Plaintiff asserts that, unlike in this case, the defendants’ experts in Jordan F. Miller did not have
access to photographs or a 3-D scan.
Moreover, Plaintiff cites two cases in which courts found no prejudice when the
defendant’s experts had access to photographs and reports documenting the spoliated evidence.
In Sinclair Wyoming Ref. Co. v. Pro-Inspect Inc., a pipe at a refinery ruptured causing a fire.
2014 WL 12768466, *1 (D. Wyo.). OSHA took possession of the ruptured portion of the pipe
and had the plaintiff send the pipe to an independent lab for examination. Id. Relevant portions
of the pipe were subsequently spoliated. Id. at *1-2. However, “[m]any, many photographs
were taken of the fire site and pipe….” Id. The district court found the ruling in Jordan F.
Miller was not persuasive because “none of the experts for any party opined that the
photographic evidence or reports were insufficient to permit them to reach certain opinions.” Id.
at *4.
In Burlington N. & Santa Fe Ry. Co. v. Grant, the Tenth Circuit concluded that the
defendant was not “meaningfully prejudiced” by the “removal and destruction of portions of the
[tar-like material] on [the plaintiff’s] property” when the plaintiff “generated extensive
documentation of the condition of the land before and during remediation….” 505 F.3d 1013,
1032 (10th Cir. 2007). The Tenth Circuit noted the lack of “meaningful evidence that [the
defendant] has been actually, rather than merely theoretically, prejudiced….” Id. at 1032-33.
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Defendant responds to Plaintiff’s argument that Jordan F. Miller is distinguishable from
this case by first asserting that “[w]hat remains missing from Plaintiff’s analysis, of course, is
any explanation why [Defendant] should be forced to rely upon Plaintiff’s expert’s incomplete
and unverified work product when it should have been provided an opportunity to undertake its
own inspection.” (Doc. 74) at 9. Defendant also argues that Irwin’s deposition testimony does
not impeach his affidavit. Defendant notes that Irwin does not state in his affidavit that he could
not reconstruct the accident. Defendant also asserts that “[t]he difference between this case and
other cases to which Plaintiff attempts to draw a comparison is that the evidence in this case was
destroyed after Plaintiff took the opportunity to retain an expert.” Id.
The Court gleans from Jordan F. Miller, Sinclair Wyoming Ref. Co., and Burlington N. &
Santa Fe Ry. Co. the following principle: if either the plaintiff, the plaintiff’s agents, or the
plaintiff’s expert viewed the spoliated evidence prior to its spoliation, prejudice to the defendant
occurs if the photographic/documentary evidence related to the spoliated evidence fails to
capture the relevant characteristics of the spoliated evidence so that a defendant’s expert relying
on that photographic/documentary evidence can only render a speculative opinion. As an initial
matter, the Court agrees with Defendant that Irwin’s deposition testimony does not impeach his
affidavit. That being said, except for the movement of center of gravity reconstruction method,
Irwin testified that EDCRASH, SIMON, and the Trego method, all reliable tools, would not
produce precise results because of the lack of information pertaining to the PT Cruiser. For
example, an EDCRASH analysis may not capture energy that might have been absorbed through
the movement of the PT Cruiser’s power train. With respect to the SIMON simulation, Irwin
was concerned that the SIMON analysis would be hypothetical without measurements of the
damage to the undercarriage of the PT Cruiser. Irwin also testified that the Trego method would
19
only produce an estimate of the energies absorbed by the greenhouse structure of the PT Cruiser,
because, for example, other damage to the PT Cruiser could lead to an underestimated speed for
the PT Cruiser.2 In other words, the photographic/3-D scan evidence Irwin had at the time of his
deposition did not capture all of the relevant characteristics of the PT Cruiser required for precise
energy calculations under EDCRASH, SIMON, and the Trego method. Even if those
reconstruction methods would produce reliable approximations,3 Irwin’s reliance on those
approximations would necessarily result in a speculative opinion.4
On the other hand, when discussing the movement of center of gravity reconstruction
method, Irwin testified that he could use the accident scene photographs taken by the sheriff’s
deputy to calculate the movement of the vehicles and to reconstruct the accident. Irwin did not
testify that he needed to inspect either the PT Cruiser or the subject semi-trailer to apply this
reconstruction method. Irwin further testified that the movement of the center of gravity analysis
“would be scientifically reliable and provide a fair and accurate reconstruction of this crash[.]”
(Doc. 71-2) at 23. In other words, the accident scene photographs capture the relevant
characteristics of the PT Cruiser to allow Irwin to reliably and accurately reconstruct the accident
using the movement of center of gravity method. Additionally, the Court notes that this method
2
Irwin further testified in his explanation of the Trego method that he could determine the
deformation of the PT Cruiser’s pillars only to the extent he could see them in the scanned data
and accident scene photographs. The deformation of the pillars, however, might be more clearly
visible in the photographs of the PT Cruiser taken by Plaintiff’s accident reconstructionist,
photographs Irwin did not have at the time of his deposition.
3
Irwin also testified that he could only approximate the crash pulse.
4
Plaintiff points out that Irwin has on many occasions reconstructed accidents without the
benefit of vehicles to inspect, citing the Baker case. Irwin, however, does not describe the extent
of the photographic evidence he had available to him in Baker to reconstruct the accident using
EDCRASH, the Trego method, and EDSMAC.
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does not require Irwin to rely on data created by Plaintiff’s accident reconstructionist, thus
alleviating Defendant’s concern about its inability to verify that data.
In sum, Defendant has not carried its burden to demonstrating that the spoliation of the
PT Cruiser actually prejudices Defendant’s ability to defend this case. Consequently, the Court
denies the Motion to Dismiss.
IT IS ORDERED that
1. Defendant’s request for a hearing is denied; and
2. Defendant’s Motion to Dismiss for Spoliation and Supporting Brief (Doc. 34) is
denied.
_______________________________
UNITED STATES DISTRICT JUDGE
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