Opinion
No. CV-09-5030604S
October 6, 2011
RULING ON MOTION TO INSPECT (#141)
In this case, the plaintiff Karen Sault (Sault) has alleged that she sustained personal injury as a result of a defectively designed or manufactured product, specifically a patio awning attached to a camper. She has brought this action against Dometic Corporation (Dometic), which is alleged to have "designed, manufactured, assembled, distributed, and/or sold" the awning (Amended Complaint, First Count, ¶¶ 1, 2), Cheyenne Camping Center Co. (Cheyenne), which is alleged to have "designed, manufactured, assembled, distributed and/or sold" a camper with the awning attached to it ( Id., Second Count, ¶¶ 2, 3) and Forest River, Inc. (Forest River), which is alleged to have "designed, manufactured, distributed and/or sold residential vehicle [sic] and particularly campers," specifically the one that Sault and her husband purchased. ( Id., Third Count, ¶¶ 2, 3).
On August 11, 2011, Sault filed a motion to inspect and notice of intent to inspect (#141) pursuant to Practice Book § 13-9. In her motion, she represented that she and husband own and are "in possession and control of the camper, awning and all component parts" and that she had "retained an engineer who has recommended that the awning be taken apart for a thorough inspection" which was to have occurred during an inspection with the defendants' experts present in April 2011. However, at that time "one or more of the defendants' experts expressed concerns about disassembling the awning" and the inspection did not proceed. She further represented that the proposed inspection was necessary in order for her expert to provide a "fair, accurate and complete" opinion and that her expert believes it "can be performed without damaging the product."
Practice Book § 13-9 provides in relevant part that: "[A]ny party may serve . . . upon any other party a request to afford the party submitting the request the opportunity to inspect . . . test or sample any tangible things in the possession, custody or control of the party upon whom the request is served . . ." In this case, Sault has possession and control of the awning so this section appears inapplicable. However, Sault is seeking to avoid an adverse inference of intentional spoliation, Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006), by seeking the court's permission to conduct the proposed inspection.
On August 29, 2011, Cheyenne filed an objection to the proposed inspection and moved for a protective order (#142), to which Sault filed an objection on September 8, 2011. Forest River filed a memorandum in support of the protective order (#145) on September 19, 2011 and Dometic filed its own motion for protective order (#146) on September 22, 2011. The court heard argument on all the motions on September 26, 2011.
The defendants' position is that the proposed disassembly of the awning for purposes of thorough inspection of its component parts is a form of destructive testing. They maintain that the allegedly defective component is a sealed tube or cylinder that remains intact and does not demonstrate any visible signs of external failure. As a result, although they are willing to agree to the disassembly of an identical exemplar awning, they maintain that disassembly of the awning in Sault's possession is not necessary, will alter the product from the condition it was in at the time of the alleged injury and will prevent the jury's observation of the best evidence.
In response, Sault maintains that she must examine the specific awning's internal mechanism to attempt to determine the cause of its alleged malfunction at the time of her injury and that the original appearance of the awning has already been altered as it is no longer attached to the camper and has been folded. Further, counsel has represented that her expert is prepared to listen to the defendants' advice regarding the best method to disassemble the cylinder and that her expert believes that it can be reassembled after inspection.
I.
The purpose of discovery in civil cases under our rules of practice is to assist "in the prosecution or defense of the action" and to obtain information "reasonably calculated to lead to the discovery of admissible evidence." Practice Book § 13-2. Thus, the rules provide for parties to have an opportunity "to inspect . . . test or sample any tangible things" in a "reasonable time, place and manner of making the inspection." Practice Book § 13-9(a)(3). Connecticut has traditionally permitted liberal discovery of information including "a broader spectrum of data than that which is material to the precise issues raised in the pleadings." Lougee v. Grinnell, 216 Conn. 483, 489, 582 A.2d 456 (1990). See Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 140, 491 A.2d 389 (1985) (this jurisdiction has liberal discovery doctrines). "Moreover, a liberal interpretation of discovery rules is particularly desirable in products liability cases . . . because of the complex nature of the considerable proof required in order successfully to maintain this type of action." (Citation omitted.) Picketts v. International Playtex Inc., 215 Conn. 490, 508, 576 A.2d 518 (1990).
No Connecticut appellate case, however, has addressed the issue of potentially destructive testing in the context of a products liability case or otherwise. There is, however, a body of law developed in other states and in the federal courts which sets out an analytical framework that is helpful in determining when such testing should be permitted and the safeguards that may be put in place to protect against potential prejudice to the non-moving party.
Research has not revealed any Superior Court decision analyzing this issue. For example, in Scovish v. OG Ind., Inc., Superior Court, judicial district of Middlesex, Docket No. CV 10 5007944 (March 31, 2010, Holzberg, J.) ( 49 Conn. L. Rptr. 622), the court issued an order prohibiting destructive testing of evidence without ten days prior notice to court and opposing counsel but did not explicitly state any standard for evaluating the request.
It has been held that destructive testing "is not a matter of right, but lies in the sound discretion of the trial court." Cameron v. District Court, 193 Colo. 286, 291, 565 P.2d 925, 929 (1977). When a proposed test or inspection has the potential to "alter the original state of the object . . . a balance [must] be established based upon the particular facts of the case and the broad policies of the discovery rules." Id. In the case of Mirchandani v. Home Depot USA., Inc., 235 F.R.D. 611, 614-17 (D. Md. 2006), the court relied upon Cameron and Petruk v. South Ferry Realty Co., 2 A.D.2d 533, 157 N.Y.S.2d 249 (App. Div. 1956), which it described as the first case to develop standards for evaluating a request to perform destructive testing, and identified "four specific inquiries relevant to the balancing test." The factors are: "1) Whether the proposed testing is reasonable, necessary, and relevant to proving the movant's case; 2) Whether the non-movant's ability to present evidence at trial will be hindered, or whether the non-movant will be prejudiced in some other way; 3) Whether there are any less prejudicial alternative methods of obtaining the evidence sought; and 4) Whether there are adequate safeguards to minimize prejudice to the non-movant, particularly the non-movant's ability to present evidence at trial." These factors have been applied in subsequent destructive testing decisions. See Garcia v. Aartman Transport Corp., No. 4:08 cv 77, 2011 WL 665451 (N.D. Ind.) (Feb. 14, 2011, Rodovich, J.) (ladder); Bostic v. Ammar's Inc., No. 03-146, 2011 WL 251009 (E.D. Ky.) (Jan. 16, 2011, Atkins, J.) (office chair); White v. Cooper Tools, Inc., Civ. 06-4272, 2010 WL 1418244 (D.S.D.) (April 6, 2010, Simko, J.) (chain links); Guerrero v. General Motors Corp., No. 1:06-cv-01539, 2007 WL 3203014 (E.D. Ca.) (Oct. 25, 2007, Snyder, J.) (seat belt retractor mechanism); Electro-Methods, Inc. v. Adolf Meller Co., No. 3:06 CV 686, 2007 WL 470325 (Jan. 11, 2007, Margolis, J.) (jet engine parts).
Mirchandani involved a products liability claim regarding a defectively designed or manufactured locking bolt on a ladder and the plaintiff sought metallurgical testing that would have irreversibly altered the bolt. As in this case, the plaintiff possessed the ladder but sought a court order to protect against any subsequent adverse inference of spoliation. The defendant moved for a protective order to preclude the plaintiff from altering the evidence in any way.
See Sarver v. Barrett Ace Hardware, Inc., 63 Ill.2d 454, 349 N.E.2d 28 (1976), which, in upholding a destructive testing order in a products liability case because the testing was relevant and the order contained appropriate safeguards, cited Petruk and noted that the issue of destructive testing "has rarely arisen in other jurisdictions." Id., 458-59.
II.
As the Mirchandani factors provide a useful framework to balance the interests of the parties in this litigation, the court adopts them and applies them.
A.
The plaintiff's claim in this case is that the mechanism that operated the awning was improperly designed or manufactured so that it caused her injury when she went to close it. As demonstrated by certain photographs of the awning (court's exhibits A and B) and as agreed to by the parties, the awning has a sealed or closed cylinder which may contain non-visible operating components. An inspection of the contents of the specific cylinder and any non-visible components can provide an opportunity to discover whether there are defective materials or whether a component failed. See Bostic v. Ammar's Inc., supra. As disassembly of the awning may tend to show the cause of its failure, it is relevant, necessary and reasonable. See Guerrero v. General Motors Corp., supra.
B.
The second factor involves prejudice to the defendants and whether the proposed inspection will hinder their ability to present the awning to the jury in its present condition which represents, in the words of Dometic's counsel, the best evidence. There are several reasons why the proposed inspection will neither hinder nor prejudice the defendants. First, the parties all agree that the awning is already in an altered condition (exhibit B) as it has been removed from the camper and folded. Second, the plaintiff's expert is willing to be advised by the defendants regarding the disassembly of the cylinder and believes it can be reassembled. Even if reassembly is not practicable, the defendants can preserve the appearance of the cylinder and awning through photography. Moreover, a jury cannot determine whether the cylinder or awning are defective from mere visual inspection without the assistance of expert testimony so that disassembly under these circumstances will not hinder the defense. See White v. Cooper Tools, Inc., supra. Finally, the defendants may use exemplars, which they represent are available, to visually demonstrate an intact cylinder to the jury.
C.
The third factor is whether there is an available alternative non-destructive method to inspect or test the awning for the cause of its alleged failure. The defendants have proposed "the dissection of an identical exemplar awning to satisfy the plaintiff's need to test the internal mechanism." (Defendant Cheyenne's Motion for Protective Order, p. 4.) The court considers this offer a "red herring" because it is the device that is alleged to have failed that plaintiff needs to inspect. Disassembly of any other awning does not have the potential to provide the data plaintiff seeks. See Mirchandani v. Home Depot USA., Inc., supra.
D.
The fourth factor requires the court to consider safeguards that minimize the potential prejudice to the non-movants. In this case, there are a range of safeguards the parties should consider. First, Sault has already agreed that the defendants should attend the inspection.
The court outlined some of these safeguards on the record on September 26, 2011 and directed counsel to reach an agreement.
Second, her expert should get advice from the defendants, particularly Dometic, as to the best way to disassemble and reassemble the awning and cylinder. Third, the parties should reach an agreement as to any attempt to operate the awning before disassembly and inspection. Fourth, the defendants' expert or experts may be present during the inspection. Fifth, the defendants may videotape or photograph the inspection process, and take any appropriate photographs of the awning and cylinder prior to disassembly, and the parties should attempt to reach an agreement regarding sharing the cost of such videography and photography. Sixth, the defendants may use exemplars in any appropriate manner.
III.
Based on the analysis in section II, supra, the plaintiff's expert may conduct a thorough inspection of the awning and its component parts, including disassembly, upon agreement of the parties as to date, time and appropriate safeguards.