Opinion
CASE NUMBER 00 C 50281
September 16, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff, American Family Insurance Co., a Wisconsin corporation with its principal place of business in Wisconsin, as subrogee of Jack and Susan Dunn, filed suit against defendant, Black Decker (U.S.), Inc., a Maryland corporation with its principal place of business in Maryland in Illinois state court asserting claims for strict products liability, negligence, implied warranty of merchantability and implied warranty of fitness for a particular purpose. Defendant properly removed the matter to this court based on diversity jurisdiction because the parties are citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332 (a)(1), 1441. Venue is proper in this district because a substantial part of the events giving rise to the claim occurred here. 28 U.S.C. § 1391 (a)(2). Plaintiff insured the Dunn's home, paid a claim for fire damage, and seeks to recover from defendant claiming a defective toaster oven, manufactured by defendant, caused the fire. Defendant moved to bar plaintiff from introducing certain evidence as a sanction for spoliation of evidence and to bar certain expert testimony as failing to meet the standard set forth inDaubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579 (1993).
A fire occurred in the Dunn's home on May 27, 1996, The parties agree the fire originated in the kitchen. According to Mrs. Dunn, the toaster oven, a coffee maker, a tea maker, and a cappuccino maker were on a kitchen counter. Two electrical receptacles and a switch for the garbage disposal were in the area. A fire department investigator concluded the fire originated on the counter with the appliances. Plaintiff's fire investigator inspected the property on May 31, 1996, and concluded then that the toaster oven was the cause of the fire. Black Decker was not advised of the fire until October 7, 1997. In the meantime, the kitchen had been renovated and the cappuccino maker, one of the electrical receptacles, and the electrical switch (none of which had been collected by the investigator) were gone. Additionally, the recorded statement of Mr. Dunn, taken by plaintiff's claims adjustor, was destroyed by plaintiff. Mr. Dunn has since died. One of plaintiff's experts, Gust, in examining the toaster oven, removed a piece of debris from between the fixed blade and bi-metal in the control circuitry altering the condition of the toaster oven from its immediate post-fire condition. Plaintiff's experts used exemplar toaster ovens in tests to formulate their opinions but did not supply these exemplars to defendant nor allow defendant to attend the examination of the exemplars.
The parties agree Illinois substantive law applies. In a diversity case, the federal rules of procedure and evidence apply. See Allstate Ins. Co. v. Sunbeam Corp., 53 F.3d 804, 806 (7th Cir. 1995). A "party's pre-suit duty to preserve material evidence is substantive," Lawrence v. Harley-Davidson Motor Co., No. 99 C 2609, 1999 WL 637172, * 2 (N.D. Ill. Aug. 12, 1999); see also Lekkas v. Mitsubishi Motors Corp., No. 97 C 6070, 2002 WL 31163722, * 2 (N.D. Ill. Sept. 26, 2002); Thomas v. Bombardier-Rotax Motorenfabrik. GmbH. 909 F. Supp. 585, 586-87 (N.D. Ill. 1996), so Illinois law applies to this issue. Plaintiff had a duty to preserve all evidence of alternate causes of the fire. Allstate, 53 F.3d at 807 (applying Illinois law). Plaintiff did not do so. It failed to preserve the electrical receptacle, switch and cappuccino maker. It's investigator believed the cause of the fire was the toaster oven at the time of his investigation but plaintiff did not notify defendant and provide defendant a chance to conduct its own investigation until more than one year later. By that time, defendant, to its prejudice, could not conduct a meaningful investigation of the fire scene. The alteration of the toaster oven and the destruction of the tape of Mr. Dunn's statement compounded defendant's difficulties in investigating the cause of the fire. Because plaintiff failed to preserve evidence which may have been, or shed light upon, an alternative cause of the fire, plaintiff has deprived defendant of the ability to establish its case. See Id. Plaintiff should have known at least by May 31, 1996, after its fire investigator concluded the toaster oven was the cause of the fire, that defendant would want to be able to conduct an investigation and review the evidence as it was immediately after the fire. See American Family Ins. Co. v. Village Pontiac GMC, Inc., 585 N.E.2d 1115, 1118 (Ill.App.Ct. 1992); cf. Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 271 (Ill. 1995) (employees of insurance company had duty to preserve evidence they knew was relevant to future litigation). Accordingly, plaintiff is barred from introducing evidence, including expert testimony, concerning the cause of the subject fire. This decision renders the motion to bar expert testimony as to the cause of the fire under Daubert moot.
Plaintiff argues that defendant cannot seek to bar this evidence because the statute of limitations for bring a cause of action for spoliation has run. However, a motion for sanctions is not a cause of action subject to a statute of limitations.