Decayette v. Goord et al

Filing 44

REPORT AND RECOMMENDATIONS that the 36 MOTION for Summary Judgment filed by Martin, Michael Allard, Volpe, Sgt. Berry, Suggs, Glenn S. Goord, Meeks be Granted in Part and Denied in Part. Objections to R&R due by 4/14/2009 Case Review Deadline 4/20/2009. Signed by Magistrate Judge George H. Lowe on 3/31/09. [Report Recommendation and electronically available only cases served on Plaintiff via regular mail]. (Attachments: # 1, # 2, # 3, # 4, # 5, # 6, # 7 )(rjb, )

Page 1 1 9 9 9 U.S. Dist. LEXIS 12285, *

L E X S E E 1999 U.S. DIST. LEXIS 12285

M A R K W . BEERS and JANET BEERS, Plaintiffs, -against- GENERAL M O T O R S C O R P O R A T I O N , Defendant. 9 7 - C V - 4 8 2 (NPM /D N H ) U N I T E D STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF N E W YORK 1 9 9 9 U.S. Dist. LEXIS 12285

M a y 17, 1999, Decided M a y 17, 1999, Filed DISPOSITION: [*1] GM's motion to dismiss p u r s u a n t to Fed. R. Civ. P. 37 GRANTED. Defendant's m o tio n for summary judgment GRANTED in entirety.

1 Fed. R. Civ. P. 37(b)(2) states: If a party . . . fails to obey an o r d e r to provide or permit d is c o v e r y . . . the court in which th e action is pending may make s u c h orders in regard to the failure a s are just, and among others the fo llo w i n g : . . . (C) An order s tr ik in g out pleadings or parts th e r e o f . . . or dismissing the a c t i o n or proceeding . . . or r e n d e r i n g a judgment by default a g a in s t the disobedient party[.]

COUNSEL: For Plaintiff: Diane V. Bruns, Esq., L o P in to , Schlather, Solomon & Salk, Ithaca, New York. F o r Defendant: Timothy S. Coon, Esq., Eckert Seamans C h e r in & Mellott, LLC, Pittsburgh, Pennsylvania. F o r Defendant: Margaret J. Fowler, Esq., Chernin & G o ld , LLP, Binghamton, New York. JUDGES: Neal P. McCurn, Senior United States District Judge. OPINION BY: Neal P. McCurn [*2] O P IN IO N M E M O R A N D U M - D E C I S I O N & ORDER INTRODUCTION Defendant General Motors ("GM") moves for d is m is s a l pursuant to Federal Rule of Civil Procedure 3 7 (b )(2 ), 1 or alternatively, for summary judgment. The m o tio n for dismissal is based on plaintiff's loss of crucial e v id e n c e . Plaintiff opposes the sanction of dismissal, and a r g u e s in part that summary judgment is inappropriate. 2 F o r the reasons that follow, the court grants GM's motion to dismiss, or in the alternative, grants summary j u d g m e n t.

Fed. R. Civ. P. 37(b)(2). 2 Although GM moves for summary judgment o n all of plaintiff's claims, including failure to w a r n , see Def. Mem. of Law at 18 n. 7, docket n o . 48 and Def. Response at 6-8, docket no. 67, p la in tiff fails to oppose summary judgment on the fa ilu r e to warn claim. BACKGROUND Plaintiff Mark Beers was injured in March of 1994 w h ile working on a friend's 1984 GM pickup truck. The tr u c k had a flexible engine cooling fan ("flex fan") in s ta lle d to cool the engine. It is undisputed that this flex fa n did not belong on the truck, and was installed by a th ir d party. 3 At some point, while the engine was

Page 2 1 9 9 9 U.S. Dist. LEXIS 12285, * r u n n in g , one of the flex fan blades broke off, penetrated th e plastic protective shroud, and struck plaintiff, injuring h im . 3 It appears the flex fan was from a 1974 GM tr u c k . Trucks designed with flex fans had metal p r o te c tiv e shrouds over the fans. The 1984 type o f truck involved in plaintiff's injury was not d e s ig n e d to have a flex fan, and had a plastic p r o te c tiv e shroud over the fan. [*3] Plaintiff retained legal counsel, and the flex f a n assembly was obtained from the owner of the truck. P la in tiff's expert, Robert W e h e , then examined the flex fa n assembly. See W e h e Dep. at 11. As part of the in s p e c tio n , he disassembled the flex fan assembly, which i r r e p a r a b ly altered it from its condition at the time of the a c c i d e n t. See GM's Supplemental Br. Ex. 1 at P 20, d o c k e t no. 62. Moreover, plaintiff's counsel never n o tifie d GM that the flex fan was to be taken apart, gave it the opportunity to be present, or allowed it to inspect th e flex fan first. See id. at PP 21-22. No video or photos w e r e taken at the time of disassembly. See id. at P 23. A lth o u g h W e h e now claims the fan blade broke because o f a design defect, he also noted the arm which held that b la d e was "severely bent." 4 W e h e Dep. at 11. W e h e r e c o g n iz e d that this damage could have caused the blade to come off. 5 See id. at 79-80. In response to the present m o tio n , W e h e now admits that he has misplaced most of th e flex fan assembly, and that it is lost. See W e h e Aff. at P 3, docket no. 56. 4 The possibility that the flex fan failed due to p r io r damage is a major reason GM moves for d is m is s a l. GM's primary defense theory is that the fa n was not defective, but failed because it had b e e n previously damaged. GM argues it is unable to present such a defense because the flex fan, e x c e p t for a few pieces, is now missing, and thus i t s expert is not capable of effectively rendering s u c h an opinion. [*4] 5 At a later portion of his deposition, W e h e m a in ta in e d that he had ruled out the flex fan's fa ilu r e due to the bent arm. See W e h e Dep. at 818 2 . He was unable to explain, however, what b a s is he had for ruling out the same. See id. GM a r g u e s that because its expert has not examined th e flex fan assembly, including the bent arm, he is unable to effectively refute W e h e . P l a i n tiff brought suit against GM in the New York S u p r e m e Court, Cortland County, on March 12, 1997. T h e action was removed to the United States District C o u r t for the Northern District of New York on the basis o f complete diversity. T h e file and record in this case are replete with e x a m p le s of discovery abuse by plaintiff. GM has sought to inspect the flex fan assembly for more than a year. On M a y 12, 1998, after application by GM, Magistrate Judge H u r d found that plaintiff failed to comply with the p r e tr ia l scheduling order (in part to supply the flex fan a s s e m b ly for inspection), failed to respond in opposition, a n d failed to participate in a telephone conference with th e court. He consequently granted GM permission [*5] to move before this court for dismissal under either F e d e r a l Rule of Civil Procedure 37 or 56. See Order of M a y 12, 1998, docket no. 14. GM then promptly moved fo r the same. I n opposition to the motion, plaintiff's counsel Diane B r u n s filed an affidavit with this court averring that "the fa n blades and housing are available for defendant's in s p e c tio n , should the court [deny GM's motion and] g r a n t plaintiffs' cross motion to reopen and extend the d is c o v e r y period." Bruns Aff. of June 17, 1998 at P8, d o c k e t no. 22. Plaintiff's statement of material facts in o p p o s itio n to this first motion stated that "the fan belt [ s ic ] assembly, which was in the custody of plaintiffs' e x p e r t witness and in storage during his absence, and the h o u s in g are now available for defendant's inspection." P l.'s Statement of Material Facts of June 17, 1998 at P6, d o c k e t no. 24. Finally, plaintiff's memorandum in o p p o s itio n argued that the action should not be dismissed fo r discovery abuse because "plaintiffs . . . have provided . . . access to the fan blade assembly now that it has b e c o m e possible to do so." 6 Pl.'s Mem. of Law of June 1 7 , 1998 at 5, docket no. 25. On August 18, 1998, this c o u r t denied [*6] GM's motion and granted plaintiff's c r o s s -m o tio n to reopen and extend the discovery period b e c a u s e counsel represented that plaintiff was now w illin g to comply with discovery orders and turn over the fle x fan assembly. 6 The reason plaintiff then claimed inability to c o m p ly with the discovery orders was an e x t e n d e d trip by W e h e . See Bruns Aff. of June 1 7 , 1998 at P3. W e h e apparently had the flex fan a s s e m b ly in storage during his trip. As GM then c o r r e c tly pointed out, however, "there is no in d ic a tio n . . . that any attempt was made [by p la in tiff's counsel] to contact Dr. W e h e during the p e r io d of his alleged 'unavailability[.]'" GM R e p ly of June 30, 1998 at 2, docket no. 27. F o llo w in g the court's denial of GM's first motion, p la in tiff continuously failed to turn over the flex fan a s s e m b ly , despite counsel's representations that she w o u ld do so. Consequently, on September 14, 1998, GM m o v e d by order to show cause to compel discovery. J u d g e Hurd granted the order to show cause. See Order to Show Cause [*7] of September 17, 1998, docket no. 3 5 . GM then withdrew the motion to compel when it a p p e a r e d plaintiff would finally turn over the flex fan a s s e m b ly . See Coon Letter to Judge Hurd of September

Page 3 1 9 9 9 U.S. Dist. LEXIS 12285, * 2 3 , 1998, docket no. 37. Plaintiff's cooperation, however, p r o v e d short-lived. GM again moved for orders to show c a u s e and compel before Judge Hurd on October 7, 1998. J u d g e Hurd granted the order to show cause on the same d a te . See Order to Show Cause of October 7, 1998, d o c k e t no. 39. In opposition to the motion to compel, p la in tiff's counsel admitted that "defendant's counsel is c o r r e c t in stating that the complete fan assembly has not y e t been provided to defendant's expert." Rather, she s ta te d that W e h e "has moved twice and placed many of h is records and files in storage." Thus, although some fan b la d e s had been sent to GM, W e h e had yet to locate the r e m a in d e r of the fan assembly. See Bruns Aff. of O c to b e r 7, 1998 at P3-4, docket no. 40. O n October 26, 1998, Judge Hurd granted the m o tio n to compel, and specifically ordered plaintiff to tu r n over the flex fan assembly for inspection. ("Plaintiffs s h a ll produce the complete engine cooling fan to the a tto r n e y s for the defendant [*8] on or before November 6 , 1998. Failure to produce shall entitle defendant to m a k e a dispositive motion or preclusion motion to the D is tr ic t Judge."). Order of October 26, 1998, docket no. 4 2 . GM then moved for leave to file a summary j u d g m e n t motion on the merits of the case on November 3 , 1998. On the same day, this court denied the motion w ith o u t prejudice to renew. Moreover, it stated that "the p a r tie s are hereby ORDERED to comply in all respects w ith the aforementioned order of Magistrate Judge H u r d ." Order of November 3, 1998, docket no. 44. P la in tiff, as of present, has yet to turn over the flex fan a s s e m b ly . Pursuant to this court's Order of November 3, 1 9 9 8 , and Judge Hurd's Order of October 26, 1998, GM file d the present motion to dismiss, or alternatively m o v e s for summary judgment. In opposition to this p r e s e n t motion, plaintiff finally admits that the remainder o f the flex fan assembly has been lost, and can not be fo u n d . See Bruns Aff. of February 1, 1999 at P 4, docket n o . 55. A f te r motion papers were filed, the United States C o u r t of Appeals for the Second Circuit decided the case o f West v. Goodyear Tire and Rubber Co., 167 F.3d 776 (2 d Cir. 1999), [*9] which pertained to spoliation of e v id e n c e and the propriety of dismissal as a sanction p u r s u a n t to Federal Rule of Civil Procedure 37. The c o u r t then directed the parties to file supplemental briefs d is c u s s in g this new case and Rule 37, as each related to d is m is s a l for spoliation of evidence. O r a l argument was held in Syracuse, New York on M a r c h 24, 1999. There, the court questioned plaintiff's c o u n s e l to determine what fault, if any, plaintiff bore for t h e loss of the flex fan assembly. W h ile the court r e s e r v e d decision on the motions for dismissal or s u m m a r y judgment, it did make a finding of fact that c o u n s e l and W e h e had been, at minimum, negligent in fa ilin g to preserve the crucial evidence. A s id e from arguments as to spoliation of evidence, p la in tiff also raised a new theory of liability. 7 Defendant a r g u e d that plaintiff should not be permitted to assert a n e w claim so late in case and only in response to s u m m a r y judgment. 7 "Although the 1984 Chevrolet p ic k -u p was designed with a [ s a fe r ] clutch fan as original e q u ip m e n t, it was also designed in s u c h a way that the clutch fan c o u l d be readily and easily r e p la c e d with the more dangerous fle x fan, resulting in the hazardous c o m b in a tio n of a flex fan with an in s u ffic ie n tly protective plastic shro ud , and no warnings c o n c e r n in g the hazards."

Pl.'s Statement of Design Defect at 2, docket no. 66. [*10] The court noted that discovery and motions w e r e closed, and that it would not allow plaintiff to a m e n d the complaint. The court did, however, instruct p la in tiff to file a statement setting forth his new claim, w ith any references in the record supporting its existence, w ith in seven days. Thereafter, defendant was ordered to file its opposition within ten days. Finally, the court o r d e r e d plaintiff to file a reply within an additional ten d a ys. 8 8 Plaintiff filed his statement of the new theory a n d defendant responded in opposition. Plaintiff, h o w e v e r , then failed to file a reply as directed by th e court. F o r the reasons that follow, GM's motion to dismiss u n d e r Rule 37 is granted. Alternatively, the court grants s u m m a r y judgment for defendant. D IS C U S S IO N I. Dismissal GM argues that this matter should be dismissed as a s a n c tio n for spoliation of evidence. Spoliation of e v i d e n c e , as recently defined by the Second Circuit, c o n s is ts of "the destruction or significant alteration of e v id e n c e , [*11] or the failure to preserve property for a n o th e r 's use as evidence in pending or reasonably fo r e s e e a b le litigation." West, 167 F.3d at 779 (citation o m it t e d ) . A federal court may impose sanctions upon a p a r ty who engages in spoliation in derogation of court o r d e r . See Fed. R. Civ. P. 37(b)(2); West, 167 F.3d at

Page 4 1 9 9 9 U.S. Dist. LEXIS 12285, * 7 7 9 ; John B. Hull, Inc. v. Waterbury Petroleum Prods., I n c ., 845 F.2d 1172, 1176 (2d Cir. 1988). Even in the a b s e n c e of a discovery order, the court "may impose s a n c tio n s for spoliation, exercising its inherent power to c o n tr o l litigation." West, 167 F.3d at 779; accord C h a m b e r s v. NASCO, Inc., 501 U.S. 32, 43-45, 111 S. Ct. 2 1 2 3 , 115 L. Ed. 2d 27 (1991); Sassower v. Field, 973 F .2 d 75, 80-81 (2d Cir. 1992), cert. denied, 507 U.S. 1 0 4 3 , 113 S. Ct. 1879, 123 L. Ed. 2d 497 (1993). S a n c tio n s for spoliation, including dismissal, are r e v ie w e d by the Circuit for abuse of discretion. See West, 1 6 7 F.3d at 779 (citing Complaint of Consolidation Coal C o ., 123 F.3d 126, 131 (3d Cir. 1997), cert. denied, 523 U .S . 1054, 118 S. Ct. 1380, 140 L. Ed. 2d 526 (1998)); [ * 1 2 ] Sieck v. Russo, 869 F.2d 131, 134 (2d Cir. 1989). T h e Circuit "will reject the district court's factual fin d in g s in support of its imposition of sanctions only if th e y are clearly erroneous." West, 167 F.3d at 779 (citing F r ie n d s of Animals, Inc. v. United States Surgical Corp., 1 3 1 F.3d 332, 334 (2d Cir. 1997) (per curiam)). T h e district court possesses "broad discretion in c r a ftin g a proper sanction for spoliation" but such s a n c tio n is to "serve the prophylactic, punitive, and r e m e d ia l rationales underlying the spoliation doctrine." I d . This sanction is fashioned to: "(1) deter parties from e n g a g in g in spoliation; (2) place the risk of an erroneous j u d g m e n t on the party who wrongfully created the risk; a n d (3) restore 'the prejudiced party to the same position h e would have been in absent the wrongful destruction of e v id e n c e by the opposing party.'" Id. (quoting Kronisch v . United States, 150 F.3d 112, 126 (2d Cir. 1998)). " 'O u tr ig h t dismissal of a lawsuit . . . is within the c o u r t's discretion.'" Id. (quoting Chambers, 501 U.S. at 4 5 ) ; see also Fed. R. Civ. P. 37(b)(2)(C). Dismissal [*13] is proper if there is "a showing of willfulness, bad faith, o r fault on the part of the sanctioned party." West, 167 F .3 d at 779 (citing Jones v. NFTA, 836 F.2d 731, 734 (2 d Cir. 1987)). Contrary to plaintiff's arguments, d i s m is s a l is not limited only to matters where the o ffe n d in g party has acted with bad faith or willful intent, b u t is permitted where there is any fault of the sanctioned p a r ty . See Bobal v. Rensselaer Polytechnic Institute, 916 F .2 d 759, 764 (2d Cir. 1990). Plaintiff argues that "the c o u r t should consider less drastic measures[.]... where th e r e is no evidence of bad faith causing the loss of the e v id e n c e , because two of the most important rationales u n d e r ly in g Rule 37 sanctions are to punish an offending p a r ty , and to deter others from acting similarly." Pl.'s S u p p le m e n ta l Brief at 5 (emphasis supplied). Yet, it has b e e n noted that negligent wrongs, like intentional w r o n g s , are proper subjects for general deterrence. See P e n th o u s e Int'l, Ltd. v. Playboy Enters., Inc., 663 F.2d 3 7 1 , 387 (2d Cir. 1981) (citing G. Calabresi, The Cost of A c c id e n ts , 133-173 (1970)). Not only have negligent [ * 1 4 ] wrongs been found proper subjects for deterrence, b u t federal courts have dismissed under Rule 37 as p u n is h m e n t for negligence. See Thiele v. Oddy's Auto a n d Marine Inc., 906 F. Supp. 158, 162-63 (W.D.N.Y. 1 9 9 5 ) (evidence negligently lost by plaintiff necessitated d i s m i s s a l under Fed. R. Civ. P. 37); Brancaccio v. M its u b is h i Motors Co., Inc., 1992 U.S. Dist. LEXIS 1 1 0 2 2 , 1992 WL 189937, at *2 (S.D.N.Y. 1992) ( p la in tiff's negligent loss of the defective product, after h e r expert had examined it, but where defendant had not, n e c e s s ita te d dismissal under Rule 37). 9 Hence, even u n d e r plaintiff's own interpretation of the purposes of R u l e 37, quoted above, it is quite clear that courts regard th e type of spoliation undertaken by plaintiff as cause for d ism is sa l. 9 New York State courts also dismiss for n e g lig e n t spoliation. See Squitieri v. City of New Y o r k , 248 A.D.2d 201, 202-03, 669 N.Y.S.2d 589, 5 9 0 (1st Dep't 1998) ("Spoliation sanctions such a s [dismissal] are not limited to cases where the e v id e n c e was destroyed willfully or in bad faith, s in c e a party's negligent loss of evidence can be j u s t as fatal to the other party's ability to present a d e fe n s e [ .] " [citation omitted]); Kirkland v. New Y o r k City Housing Auth., 236 A.D.2d 170, 1747 5 , 666 N.Y.S.2d 609 (1st Dep't 1997) (noting that n u m e r o u s federal and state courts "have found d is m is s a l warranted when discovery orders were n o t violated, and even when the evidence was d e s tr o y e d prior to the action being filed . . . n o tw ith s t a n d in g that the destruction was not m a lic io u s . . . or in bad faith[.]" [citations o m itte d ] ) ; Mudge, Rose, Guthrie, Alexander & F e r d o n v. Penguin Air Conditioning Corp., 221 A .D .2 d 243, 243, 633 N.Y.S.2d 493 (1st Dep't 1 9 9 5 ) ("Dismissal of the amended complaint is a ls o warranted because of plaintiff's negligent l o s s of a key piece of evidence which defendants n e v e r had an opportunity to examine[.]" [citation o m itte d ] ) (emphasis supplied). W h ile this federal c o u r t is bound to vindicate the Federal Rules of C iv il Procedure, it surely would be an anomaly if p la in tiff was permitted to negligently spoliate e v id e n c e and have his case survive in a federal d iv e r s ity action, but have his claim dismissed if th e action was in state court. [*15] Plaintiff should be held responsible for both h i s expert's loss of the crucial evidence, and his counsel's d e fia n c e of court orders. This is the type of fault required fo r dismissal under Rule 37; although there has been no a lle g a tio n that W e h e intentionally discarded the flex fan a s s e m b ly , as an expert retained to examine the actual d e fe c tiv e part, he was grossly negligent in permanently a lte r in g , and then even worse, losing the very item this la w s u it is over. "Gross professional incompetence no less th a n deliberate tactical intransigence may be responsible

Page 5 1 9 9 9 U.S. Dist. LEXIS 12285, * fo r the interminable delays and costs that plague modern c o m p le x lawsuits." Penthouse, 663 F.2d at 387. A s id e from W e h e 's loss of the crucial evidence, c o u n s e l bears fault for disobeying several orders of both M a g is tr a te Judge Hurd and this court in failing to provide th e flex fan assembly, and wasting the scant judicial r e s o u r c e s of the court in assuring plaintiff's compliance w ith mandatory discovery. Until this present motion, c o u n s e l never notified the court of her inability to c o m p ly with the court's orders, instead engaging in a p a tte r n of delay and avoidance, perhaps waiting for W e h e to return from his [*16] trip, and then hoping W e h e would rediscover the missing evidence. The d is tr ic t court possesses the discretion to dismiss for d is o b e d ie n c e of discovery orders. See Sieck, 869 F.2d at 1 3 4 (we . . . prefer to . . . provide the teeth to enforce d is c o v e r y orders by leaving it to the district court to d e t e r m in e which sanction from among the available r a n g e is appropriate."). C o u n s e l not only bears fault for disobeying court o r d e r s , but responsibility for carefully supervising the e x p e r t retained. The fact that plaintiff or counsel th e m s e lv e s did not personally lose the evidence is ir r e le v a n t. W ith full knowledge of the pretrial discovery o r d e r , and deadlines to turn over evidence, including the fle x fan assembly, counsel continued to retain W e h e d e s p ite his trip, and let him keep the very items required to be turned over, which were inaccessible while he was o n his trip (and ultimately lost). Even after W e h e r e tu r n e d , despite numerous representations to the court th a t the complete flex fan assembly would be turned over to defendant, it never was. F in a lly , plaintiff sometimes must suffer for the faults o f his lawyers and experts, especially when their acts are e x tr e m e ly [*17] prejudicial to the opposing party, who o th e r w is e has no effective remedy. See Link v. Wabash R .R . Co., 370 U.S. 626, 633-34, 82 S. Ct. 1386, 8 L. Ed. 2 d 734 (1962) (client freely selected attorney and is b o u n d by acts of lawyer-agent); see also James W m . M o o r e , Moore's Federal Practice § 37.50[2][b], at 378 3 , and 37-83 n. 42.2 ("the Supreme Court has rejected th e notion that dismissal of a plaintiff's complaint b e c a u s e of counsel's unexcused conduct imposes unjust p e n a lty on the client."). D i s m i s s a l is a drastic remedy and should be imposed o n ly after consideration of alternative, less drastic s a n c tio n s . See West, 167 F.3d at 779. 1 0 The Second C ir c u it has also directed, however, that in fashioning a s a n c tio n , the district court must take into account the a b ility of the sanction to "restore the prejudiced party to th e same position he would have been in absent the w r o n g fu l destruction of evidence by the opposing party." I d . As GM's defense revolves around pre-accident d a m a g e to the very item missing, it will be unable to e ff e c t iv e ly show that the fan blade broke for reasons o th e r than a defect. A lesser sanction is thus in a p p r o p r ia te [*18] as it does not cure the prejudice to G M . 11 10 Another circuit has noted that the district c o u r t should not be required "to incant a litany of th e available lesser sanctions[.]" Harmon v. CSX T r a n s p ., Inc., 110 F.3d 364, 368 (6th Cir. 1997). 11 Alternatively, if lesser sanctions were im p o s e d , such as evidence preclusion, there is a s tr o n g possibility of summary judgment in GM's fa v o r due to plaintiff's inability to make out a p r im a facie case without evidence of the flex fan o r pertinent portions of his expert's testimony. A . Distinction Between West and the Present Case P la in tiff argues that this case is similar to W e s t, and c o n s e q u e n tly should not be dismissed. In W e s t, the d i s t r ic t court dismissed pursuant to Rule 37 after plaintiff s p o lia te d certain evidence which prejudiced defendants. S e e West v. Goodyear Tire and Rubber Co., 1998 U.S. D is t. LEXIS 1529, 1998 WL 60942 (S.D.N.Y. 1998). The S e c o n d Circuit reversed, 167 F.3d 776, holding that o th e r , less severe [*19] sanctions than dismissal should h a v e been utilized. W e s t is clearly distinguishable. T h e W e s t plaintiff was injured when a tire he was m o u n tin g exploded. Plaintiff had already mounted an id e n tic a l tire (the "exemplar wheel") which had not e x p lo d e d . Defendants' theory of defense was that p la in tiff grossly overinflated both tires, and the second tir e exploded. They planned to show the overinflation by in tr o d u c i n g evidence of the overinflated but unexploded e x e m p la r wheel. The exemplar wheel, however, was sent b y plaintiff to a lawyer specializing in tire explosion c a s e s . Fearing the tire would explode, that lawyer o r d e r e d it deflated. As the Circuit noted, "defendants b e lie v e that by deflating the exemplar wheel, W e s t's la w y e r s deflated their case." West, 167 F.3d at 780. F u r th e r m o r e , defendants planned to introduce the t i r e mounting machine and air compressor as c ir c u m s ta n tia l evidence that the exploded tire was o v e r in fla te d . As the Circuit itself observed, "the c o m p r e s s o r was set at an astronomical pressure of 160 p o u n d s per square inch." Id. at 778. Though defendants r e q u e s te d inspection of the compressor and tire mounting m a c h in e , and an [*20] inspection was scheduled, p la in tiff sold the devices before inspection occurred. See id . The devices were later located, but by then had been le ft outside and their conditions had deteriorated. See id. W h i l e defendants' experts were able to examine the d e v ic e s , and opined that the devices could have m a lfu n c tio n e d and caused overinflation, "because W e s t s o ld these items and the purchaser left them outside over th e winter, defendant's experts had no way to determine th e condition of the machines when they were in W e s t's s h o p at the time of the accident." Id. at 780.

Page 6 1 9 9 9 U.S. Dist. LEXIS 12285, * B a s e d upon the spoliation of the exemplar wheel, c o m p r e s s o r and tire mounting machine, the district court h e ld defendants had been severely prejudiced, and d is m is s e d the case pursuant to Rule 37. Reversing, the C ir c u it held that other less drastic sanctions were a v a ila b le to the district court which would have e lim in a te d the prejudice to defendants without disposing o f the case, such as evidence preclusion and inference c h a r g e s . See West, 167 F.3d at 780. T h e present matter is entirely different. Most im p o r ta n tly , the missing or spoliated item, unlike in W e s t, is not circumstantial [*21] evidence, but the actual p a r t that failed. There can be no adequate lesser s a n c tio n s , as they would be tantamount to summary j u d g m e n t against plaintiff. Cf. Pesce v. General Motors C o r p ., 939 F. Supp. 160, 165 (N.D.N.Y. 1996) (Hurd, M .J .) ("the drastic sanction of preclusion [as to the m is s in g defective item] would be tantamount to dismissal o f the action."). Although in a defective design case le s s e r sanctions may not always prevent the claim, both fe d e r a l and New York State courts have dismissed d e fe c tiv e design cases as a result of plaintiff's spoliation, e v e n where the spoliation occurred negligently. 1 2 1 2 A defective design claim arguably does not r e q u ir e evidence of the product which actually fa ile d , since all of the same type of product are u n ifo r m ly defective. However, courts have d is m is s e d for spoliation, even where plaintiff a lle g e d a design defect. See Brancaccio, 1992 W L 189937, at *2 (case dismissed for spoliation u n d e r Rule 37 where claim of improper seat belt d e s ig n was present, when seat belt --and vehicle-w e r e disposed of through plaintiff's negligence); S q u itie r i v. City of New York, 248 A.D.2d 201, 2 0 2 , 669 N.Y.S.2d 589, 590 (1st Dep't 1998) ( d is m is s a l of third party complaint alleging d e fe c tiv e design for loss of the defective p r o d u c t) . [*22] Even if the court did impose lesser sanctions, th e y would not likely remedy the wrong GM has s u ffe r e d . Not only does GM argue that the flex fan was d a m a g e d , precipitating its failure, but GM sought in s p e c tio n of the flex fan assembly to develop other d e fe n s e s . As GM never examined the complete flex fan a s s e m b ly , it does not even know what sanctions it wants th e court to impose because it will never know of other d e f e n s e s an inspection may have revealed. See GM S u p p le m e n ta l Brief at 6-7, 10-11. I n W e s t, the Circuit Court also observed that the e x e m p la r wheel was allegedly deflated as a purported p u b lic safety measure, which was a mitigating factor in th e spoliation. There are no mitigating factors in the p r e s e n t matter. Plaintiff's expert lost the crucial evidence in this case. There is no excuse for such conduct, nor has p la in tiff attempted to argue such. Furthermore, plaintiff's c o u n s e l has utterly failed to explain any efforts on her p a r t to mitigate her failure to comply with the court's o rd e rs. A n o th e r notable distinction between W e s t and the p r e s e n t case is the type of remedy defendants sought as a s a n c tio n for spoliation. In W e s t, only one of two d e fe n d a n ts [*23] moved to dismiss. The other defendant m o v e d only for lesser sanctions. This made clear that a lte r n a tiv e s were available other than dismissal. 1 3 The c ir c u m s ta n c e s here are different: GM, the sole defendant, m o v e s for dismissal and argues that no other sanction w ill remove the prejudice plaintiff's spoliation has c a u s e d . The court agrees. 1 3 As the Circuit stated, "it is noteworthy that G o o d y e a r did not move for dismissal as a s a n c tio n for spoliation; it only sought to have e v id e n c e relating to the spoliated materials e x c lu d e d at trial. Only [the second defendant] m o v e d to dismiss the complaint on the ground of s p o lia tio n . Obviously, Goodyear believed that le s s e r sanctions, like exclusion of spoliated e v id e n c e , would protect its interests, although G o o d y e a r would now benefit from the district c o u r t's dismissal." West, 167 F.3d at 780 n. 1 ( e m p h a s is supplied). F in a lly , as a last distinction, the district court in W e s t relied only on plaintiff's spoliation for dismissal. In th is matter, [*24] the court relies not only upon the s p o lia tio n , but counsel's noncompliance with orders of b o th a M a g i s tr a te Judge and a District Judge. Not only d o e s this court have the discretion under Rule 37 to order d is m is s a l for a plaintiff's noncompliance, see Fed. R. Civ. P . 37, but as the Supreme Court has recognized, the d is tr ic t court has the inherent power to regulate and c o n tr o l litigation before it. See Chambers, 501 U.S. at 4 3 - 4 5 . If parties were allowed to disregard mandatory d is c o v e r y deadlines and orders of the court, orderly and tim e ly adjudication of cases would be subverted. I n summary, W e s t can be distinguished, and the r e s u lt will not be followed here for several reasons: (1) th e evidence spoliated is not circumstantial; (2) due to th e nature of the spoliated evidence, effective lesser s a n c tio n s may well be tantamount to summary judgment; ( 3 ) lesser sanctions may not remedy GM's prejudice b e c a u s e it does not know exactly what a physical i n s p e c tio n of the flex fan would have revealed as a p o te n tia l defense; (4) no mitigating factors to the s p o lia tio n are present; (5) defendant herein actually m o v e s for dismissal and argues only dismissal will p r o te c t [*25] its interests adequately; (6) plaintiff's c o u n s e l's disregard of discovery and other orders of the c o u r t support dismissal as a sanction under Rule 37 and u n d e r the court's inherent power to control litigation

Page 7 1 9 9 9 U.S. Dist. LEXIS 12285, * b e fo r e it. H a v in g carefully examined and considered the a lte r n a tiv e s , no other remedy than dismissal appears a p p r o p r ia te . Only dismissal serves the three prongs the W e s t panel enumerated as to the purposes of Rule 37 and s p o lia tio n . 1 4 First, it will serve as a deterrent to plaintiff's c o u n s e l, his expert and non-parties from engaging in s p o lia tio n and disobedience of court orders. Second, the r i s k of an erroneous judgment will be on the party to lose th e critical evidence. Third, it appears no other sanction w i l l restore GM to the position it would have been in a b s e n t the spoliation. 14 "(1) Deter parties from engaging in s p o l ia tio n ; (2) place the risk of an erroneous j u d g m e n t on the party who wrongfully created the r is k ; and (3) restore the prejudiced party to the s a m e position he would have been in absent the w r o n g fu l destruction of evidence by the opposing p a r ty." West, 167 F.3d at 779 (internal quotations a n d citation omitted). [*26] Accordingly, GM 's motion for dismissal is g r a n te d . Moreover, as set forth below, the court a lte r n a tiv e ly grants GM's summary judgment motion. I I . Summary Judgment Even if the court did not impose lesser sanctions ( w h ic h it would if it were not dismissing the case) p la in tiff's claims fail as a matter of New York law. 1 5 1 5 In a diversity action, the court must apply the s u b s ta n tiv e law of New York. See Erie R.R. Co. v . Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1 1 8 8 (1938); Caiazzo v. Volkswagenwerk A.G., 6 4 7 F.2d 241, 243 (2d Cir. 1981); Paul Revere L ife Ins. Co. v. Adelman, 1997 U.S. Dist. LEXIS 1 9 8 0 4 , 1997 WL 773706 (N.D.N.Y. 1997) ( M u n s o n , S.J.). P la in tiff's defective design claims are barred by the s u b s e q u e n t modification doctrine of Robinson v. ReedP r e n tic e Div. of Package Mach. Co., 49 N.Y.2d 471, 475, 4 2 6 N.Y.S.2d 717, 403 N.E.2d 440 (1980). As the New Y o r k Court of Appeals recently reiterated, "a m a n u fa c tu r e r is not responsible for injuries [*27] resulting from substantial alterations or modifications of a product by a third party that render the product d e fe c tiv e or otherwise unsafe." Liriano v. Hobart Corp., 9 2 N.Y.2d 232, 236, 677 N.Y.S.2d 764, 765, 700 N.E.2d 3 0 3 (1998) (citing Robinson). T h is present matter is analogous to a recent A p p e lla te Division, Third Department case upholding the s u b s e q u e n t modification doctrine under similar facts. See C o lo n ia l Indem. Ins. Co. v. NYNEX, 260 A.D.2d 833, 688 N .Y .S .2 d 744, 1999 WL 216867, *2 (3d Dep't 1999). T h e r e , the Appellate Division granted summary j u d g m e n t to defendant manufacturer because the u n d is p u te d cause of the damages was a part added by a th ir d party subsequent to the product's manufacture. See id . at *1-2. I n the case at bar, as in Colonial Indemnity, plaintiff s e e k s to hold the manufacturer, GM, liable for the failure o f a part which was added to the truck by a third party s u b s e q u e n t to the truck's manufacture and sale. Despite G M 's assertion that New York law mandates summary j u d g m e n t on these claims, plaintiff fails to oppose this a r g u m e n t in his opposition papers. 1 6 The court [*28] a g r e e s that the subsequent modification doctrine of R o b in s o n requires the claims to be dismissed. Moreover, p l a i n tiff's failure to oppose GM's argument is deemed by th e court as consent to summary judgment on these c la im s . 16 Plaintiff's sole opposition to summary j u d g m e n t on his defective design claims is the a s s e r tio n of the "new" theory of liability, mainly th a t the truck was defectively designed when it le ft GM 's hands, as it was designed to allow the le s s safe flex fan to be installed. It is too late for p la in tiff to assert this new theory, especially w h e n his purpose is plainly to avoid summary j u d g m e n t due to the subsequent modification d o c tr in e . To determine whether the claim was in d e e d new, or had been present all along, as m a in ta in e d by plaintiff, the court directed p la in tiff to file a statement describing this new th e o r y , supplemented with references to the r e c o r d supporting its previous existence. Contrary to his assertions, none of the citations plaintiff p o in t s to disclosed or set forth this new theory. A s discovery and motions are closed, the court d e c lin e s to permit the new liability theory on e ith e r defective design or failure to warn. N o t w i t h s t a n d i n g the untim e l i n e s s o f p la in tiff's new theory, the court notes and adopts G M 's argument that plaintiff's novel theory still h a s , "at its heart, the issue of whether the flex fan w a s defective and at the root of that issue lies the q u e s tio n of the cause of the failure; a question th a t GM cannot adequately defend due to p la in tiffs ' negligent loss of the fan." Def. Reply at 4 n. 2, docket no. 59. Accordingly, even if the c o u r t allowed plaintiff's new theory, it does not a lte r the court's conclusion that this case must be d is m is s e d for spoliation. [*29] Plaintiff also alleges a failure to warn claim in his complaint, and reiterated the same at oral a r g u m e n t. Plaintiff otherwise fails to mention or support h i s allegation of failure to warn. In its motion for s u m m a r y judgment, GM argues that "there is no record

Page 8 1 9 9 9 U.S. Dist. LEXIS 12285, * e v id e n c e to establish that a warning would have p r e v e n te d this action, to whom a warning should have b e e n given, the content of the warning, and all the other e le m e n ts necessary to prove this type of claim." Def. M e m . of Law at 18 n. 7, docket no. 48. Plaintiff never r e s p o n d e d to or refuted this argument in his opposition p a p e r s . After the court ordered supplemental briefing at o r a l argument, GM again argued the failure to warn c la im was unviable. "Plaintiff[] here can point to no e v id e n c e or expert opinion in the record that the 1984 tr u c k was defective because it lacked appropriate w a r n in g s . In contrast, the record shows that GM did p r o v id e information about the proper cooling fan to use o n this truck." Def. Response at 8 n. 4, docket no. 67. D e s p ite the court's order at oral argument for plaintiff to r e p ly to GM's Response, plaintiff again not only failed to a d d r e s s GM's argument, but failed to file the reply at all. T h u s , [*30] plaintiff has never opposed GM's argument fo r summary judgment on this claim. T h i s court has dismissed failure to warn claims when p la in tiff fails to support the claim at a summary judgment m o tio n . See June v. Lift-A-Loft Equip., Inc., 1992 U.S. D is t. LEXIS 10064, 1992 WL 168181, *2-3 (N.D.N.Y. 1 9 9 2 ) (McCurn, C.J.). As with the present case, the June p la in tiff left the "record[] devoid of any factual basis for c o n c lu d i n g that the [product] carried inadequate w a r n in g s " and the court therefore granted summary j u d g m e n t to defendant. Id. at *3. The same result is r e q u ir e d here. A d d itio n a lly , Local Rule 7.1(b)(3) states that "failure to file or serve any papers as required by this rule shall b e deemed by the court as consent to the granting or d e n ia l of the motion, as the case may be, unless good c a u s e is shown." N.D.N.Y. L.R. 7.1(b)(3). Plaintiff fails to oppose summary judgment on the warning claim a lth o u g h GM specifically argues it is entitled to such. N o t only does plaintiff fail to address GM's argument in h is opposition papers, but he failed to file a reply a d d r e s s in g similar arguments after the court directed him to file the same. The court considers plaintiff's failures to o p p o s e [*31] as consent to GM's motion for summary j u d g m e n t on the failure to warn claim. C O N C L U S IO N For the aforementioned reasons, GM's motion to d is m is s pursuant to Fed. R. Civ. P. 37 is GRANTED. D is m is s a l is granted (a) due to plaintiff's spoliation of the c r u c ia l evidence under Rule 37; (b) due to counsel's n o n c o m p lia n c e with orders of the court, pursuant to Rule 3 7 ; and (c) under the inherent authority of the court to c o n tr o l litigation before it. Alternatively, defendant's m o tio n for summary judgment is GRANTED in the e n tir e ty. I T IS SO ORDERED. D a te d : May 17, 1999 S y r a c u s e , New York N e a l P. McCurn S e n io r United States District Judge J U D G M E N T IN A CIVIL CASE - FILED MAY 1 8 1999 D e c is io n by Court. This action came to trial or h e a r in g before the Court. The issues have been tried or h e a r d and a decision has been rendered. I T IS ORDERED AND ADJUDGED: GM 's motion to dismiss is GRANTED. Defendant's motion for s u m m a r y judgment is GRANTED in the entirety. M a y 18, 1999 DATE