In this employment discrimination case, the principal issue is the admissibility of evidence proffered in support of the principle that "the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it." Beers v. Bayliner Marine Corp., 236 Conn. 769, 775, 675 A.2d 829 (1996). One of the conditions that Beers requires a litigant to satisfy to invoke this principle is that the alleged spoliator was "on notice that the evidence should be preserved."
Rather, Home Depot contends that the ladder was not vital to the plaintiffs claims that the ladder was designed defectively or sold without adequate warnings because these claims, Home Depot maintains, could have been proven through the use of exemplars. In support of this argument, Home Depot relies on Beers v. Bayliner MarineCorp., 236 Conn. 769, 778, 675 A.2d 829 (1996), wherein this court concluded that an "[adverse] inference may not be drawn with respect to a claim based upon design defect when the destruction [of evidence] would not hinder the defense." We reject this claim because whether the destruction of the ladder would have hindered the plaintiffs ability to prevail on his design defect or inadequate warnings claims is a factual question that cannot be resolved on a motion to strike.
Trial courts, in determining whether to give this instruction, should consider whether the spoliation was intentional, whether the spoliator knew of the reasonable possibility of a lawsuit involving the spoliated object, whether the party requesting the instruction "acted with due diligence with respect to the spoliated evidence," and whether the evidence would have been relevant to a material issue in the case. See Beers v. Bayliner Marine Corp., 236 Conn. 769, 675 A.2d 829, 832-33 (1996). It is not necessary that the spoliator act with malice or bad faith.
The court determined that the spoliation test prescribed in State v. Asherman , supra, 193 Conn. 695, 478 A.2d 227, governed this case and that the plaintiff could not prevail under that test. The plaintiff argues that the court erred in applying Asherman , and should have instead utilized the spoliation test enunciated in Beers v. Bayliner Marine Corp ., 236 Conn. 769, 775, 675 A.2d 829 (1996), on the reasoning that Beers is to be applied in civil matters. The Asherman balancing test is used to determine "whether the failure of the police to preserve potentially useful evidence had deprived a criminal defendant of due process of law under ... [our] state constitution" and requires the following factors to be weighed: "the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence."
For example, the spoliation of a machine may raise an adverse inference with respect to a claim that that particular machine was defective, but such an inference may not be drawn with respect to a claim based upon design defect when the destruction would not hinder the defense. Beers v. Bayliner Marine Corp., 675 A.2d 829, 833 (Conn. 1996);see also Schmid, 13 F.3d at 79. Thus in this case, the district court must evaluate the effect of the loss of the fire-suppression system on each Defendants' ability to defend against Plaintiffs' claims and to lay off responsibility on others potentially at fault for the loss.
(Order (based on Oral Opinion) [Doc. # 85] entered November 3, 2017.) ASI recognizes that since spoliation is an evidentiary doctrine, it is to be determined under federal law in this diversity action (Def's Mem. in Support [Doc. #51-1] at 7), but maintains that the extreme sanction of summary judgment is warranted under the circumstances of this case, citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002) and Beers v Bayliner Marine Corp., 236 Conn. 769 (1996). While the spoliator was Target, not Plaintiff, ASI argues that because Plaintiff adopted Target's experts, Plaintiff must bear the consequences of their tainted testimony.
Contrary to Wyeth's arguments, Connecticut law recognizes negligent failure to test as a basis for product liability independent from failure to warn. “The definition of products liability, § 52–57m(b) covers damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling any product.” Bogrette v. Clark Equipment Co., No. CV 97–0258940S, 1998 WL 252354, at *5 (Conn.Super.Ct. May 8, 1998) (noting that the plaintiff's products liability claim was based on the defendants' “failure to give warning of the dangerous propensities as designed, manufactured or distributed as well as defendant Clark's failure to test and design when defendant knew or should have known of the forklift's potential danger”); see also Beers v. Bayliner Marine Corp., 236 Conn. 769, 772, 675 A.2d 829 (1996) (“The plaintiffs claim that their injuries were caused by the defective condition of the boat, and that the defendant is liable for their injuries under inter alia, product liability theories of manufacturing defect, design defect, failure to warn of those defects and failure to test adequately the boat.”). Cf. Densberger v. United Technologies Corp., 297 F.3d 66, 70–71 (2d Cir.2002) (manufacturer has continuing duty to study and warn consumers). Thus, Plaintiffs' failure to test claim was not subsumed in their failure to warn claim.
Trial courts, in determining whether to give this instruction, should consider whether the spoliation was intentional, whether the spoliator knew of the reasonable possibility of a lawsuit involving the spoliated object, whether the party requesting the instruction "acted with due diligence with respect to the spoliated evidence," and whether the evidence would have been relevant to a material issue in the case. See Beers v. Bayliner Marine Corp., 675 A.2d 829, 832-33 (Conn. 1996). It is not necessary that the spoliator act with malice or bad faith.
While Utah's courts have not formally recognized a freestanding spoliation doctrine independent of the rules of civil procedure, rule 37 seems to address the same concerns as these cases, imposing similar sanctions to discourage similar misconduct. See, e.g., Beers v. Bayliner Marine Corp., 236 Conn. 769, 675 A.2d 829, 831–32 (1996) (collecting cases from other jurisdictions that discuss the imposition of adverse inferences against a party who destroys or conceals evidence). And we see no reason why the spoliation of relevant evidence would be treated any differently under rule 37 than under an independent spoliation doctrine, at least under the circumstances of this case.
These sanctions include dismissal of a claim, preclusion of evidence, or a jury instruction. Howell v. Maytag, 168 F.R.D. 502, 505 (M.D.Pa. 1996); Beers v. Bayliner Marine Corp., 236 Conn. 769, 775 & n.9, 675 A.2d 829, 831-32 & n.9 (1996). Sanctions are decided on a case-by-case basis.