Below, Joshua et al v. Yokohama Tire Corporation et al

Filing 274

ORDER continuing to RESERVE on defendants' motion for relief due to spoliation. Signed by District Judge William M. Conley on 3/6/2017. (kc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOSHUA J. BELOW, by his Guardian, DEBRA
BELOW, CHARLIE ELIZABETH BELOW and
PATRICK JOSHUA BELOW,
Plaintiffs,

OPINION and ORDER
15-cv-529-wmc

and
DEAN HEALTH PLAN, INC.,
Involuntary Plaintiff,

and

STAR BLUE BELOW-KOPF, by her Guardian
ad Litem, TERESA K. KOBELT,

v.

Intervening Plaintiff,

YOKOHAMA
TIRE
CORPORATION,
YOKOHAMA
CORPORATION
OF
AMERICA, YOKOHAMA CORPORATION
OF NORTH AMERICA, YOKOHAMA TIRE
MANUFACTURING VIRGINIA, LLC, and
YOKOHAMA RUBBER COMPANY, LTD.,
Defendants.

This opinion is intended to memorialize the court’s oral ruling at the trial this
morning.

At the final pretrial conference in the above-captioned matter, the court

continued to reserve on defendants’ motion for relief due to spoliation of evidence
pending plaintiffs’ production of their investigators, Terry Tadysak and Tom Malone, for
depositions of up to one-hour each.

Following that discovery, the court invited the
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parties to file supplemental briefs, which they did over the weekend.

(Dkt. #251.)

Having the benefit of that briefing, the court continues to reserve on defendants’ motion
with respect to: (1) the possibility of giving an adverse inference instruction regarding
plaintiffs’ failure to preserve information about Josh Below’s seatbelt usage during the
damages phase of trial, including the seatbelt itself and the truck’s “Airbag Control
Module”; and (2) the possible award of monetary sanctions against plaintiffs’ counsel for
failing to notify defendants timely of anticipated litigation, the existence of potentially
important evidence at a salvage yard, the existence of tire strips collected at the accident
scene, and the failure to take adequate steps to preserve possible, relevant evidence.
In their supplemental brief, defendants argue primarily that Mr. Tadysak failed to
make any effort to attempt to preserve information from the truck’s Airbag Control
Module, which may have contained information about “vehicle speed, driver braking and
seatbelt status,” despite knowing that such information could be critical in a future
lawsuit.

(Dkt. #266.) The court shares this concern given Tadysak’s long-standing,

fulsome experience investigating traffic accidents both as a law enforcement officer and as
an investigator working for plaintiffs’ counsel for several decades. In response, plaintiffs
do not address specifically their investigators’ failure to preserve the Airbag Control
Module, nor any other part of the truck, but argue generally that no further sanctions for
plaintiffs’ failure to preserve the truck should be imposed beyond what the court has
already ordered. (Dkt. #271.)
While the court ultimately agrees with plaintiffs that defendants have still not
presented sufficient evidence, from their recent depositions of Tadysak and Malone or
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otherwise, to warrant a finding of intentional spoliation or bad faith -- and an adverse
inference instruction during the liability phase -- for the reasons already explained in its
earlier opinion on defendants’ motion (dkt. #225 at 3-6) and at the final pretrial
conference, it is plausible that plaintiffs’ chief investigator, Tadysak, knew or should have
known the potential importance of any evidence that Josh Below was or was not wearing
his seatbelt, yet failed to take adequate steps to preserve it. Defendants may, therefore,
be able to make a showing of bad faith sufficient to obtain an adverse inference
instruction as to the issue of Josh Below’s seatbelt usage.
Accordingly, the court will continue to reserve on the possibility of giving an
adverse inference instruction regarding the seatbelt issue during the damages phase of
trial, at least pending further argument from the parties and possible presentation of
additional evidence, including from the investigators, while the jury deliberates on
liability. The court will also reserve on the possibility of monetary penalties for this
misconduct, as well as plaintiffs’ failure to produce timely pieces of rubber secured by
plaintiffs’ investigators from the scene of the accident. The fact that defendants were not
even apprised of this evidence until deposing Tadysak and Malone on March 1, 2017,
makes this particularly egregious.

Part of this sanction continues to depend on an

examination of those rubber pieces by defendants’ expert, and his findings as to their
possible significance to his opinions in this lawsuit.
Finally, given plaintiffs’ counsel’s inexplicable failure to notify Yokohama timely
of anticipated litigation and make a more concerted effort to preserve the truck, despite
identifying Yokohama as a possible defendant early in plaintiffs’ investigation of the
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accident (as demonstrated by their investigator securing the damaged Yokohama tire
when he first inspected the truck at the salvage yard on October 30, 2013), the court also
reserves as to any monetary sanctions against plaintiffs’ counsel. The issue of appropriate
monetary sanctions will also be taken up while the jury decides liability.

ORDER
IT IS ORDERED that the court continues to RESERVE on defendants’ motion
for relief due to spoliation (dkt. #72) and their related 13th motion in limine (dkt.
#124).
Entered this 6th day of March, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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