Defense Digest

Pennsylvania - Product Liability
Spoliation Plaintiffs Hold Onto Your Products!

The Pennsylvania Superior Court recently highlighted a subsection of the spoliation of evidence standard pertaining to product defect claims in Creazzo v. Medtronic, Inc., 2006 Pa Super. 152, which recognizes the prejudice to product defendants, resulting from the loss of an allegedly defective product. In Creazzo, the Superior Court affirmed an order granting summary judgment to the manufacturer of a medical device when a third party discarded the allegedly defective device because the plaintiffs had a responsibility to preserve the product.

The Creazzos initiated their law suit against Medtronic for the failure of a medical device ten months before the device was removed from Mr. Creazzo's body. Counsel for Medtronic requested that plaintiff's counsel sign a stipulation for the preservation, examination and inspection of the device. Plaintiff's counsel did not sign the stipulation, but he did request that the hospital retain the device for further examination. The plaintiffs, who were fully aware of their pending claim, did not take any further steps to ensure that the product was preserved for a period of two years, and the hospital discarded the device. The court granted summary judgment after determining that, under these facts, it was the Creazzo's fault that the device was discarded.

Of course, spoliation does not exclusively apply to plaintiffs. Defendants lose evidence, too. However, the loss of an allegedly defective product can have disastrous results on the defense of a product defect claim. The courts have held that the mere occurrence of a product malfunction does not establish the liability of the defendant. But those of us in the defense industry recognize that it comes pretty close to establishing liability, unless the defendant has another reasonable explanation of the cause of the accident. It is the plaintiff's burden to eliminate abnormal use and reasonable secondary causes for a malfunction that the evidence fairly presents, but these other causes are rarely obvious from the malfunction and need to be developed by defense counsel.

It is extremely difficult for a manufacturer to prove that its product, which was involved in an accident, was not defective when the product cannot be examined. In Roselli v. General Electric , 410 Pa. Super. 223 (1991) and DeWeese v. Anchor Hocking, 427 Pa. Super. 47 (1993), the Pennsylvania Superior Court recognized the difficulty this presented and affirmed orders granting summary judgment to product defendants after the plaintiffs had discarded the alleged defective products. The court saw that it would be unfair because the lack of the products precluded the manufacturer from proving that there was no defect, at least in manufacturing defect cases.

In Schroeder v. Commonwealth of Pennsylvania Department of Transportation, 551 Pa. 243 (1998), the Pennsylvania Supreme Court established the current standard for deciding if summary judgment is appropriate against a party that discards or fails to preserve evidence by adopting the Third Circuit Court's approach to spoliation from Schmid v Milwaukee Electrical Tool, 13 F.3d 76 (3d Cir. 1994). The factors when deciding a spoliation motion are: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party's rights and deter future similar conduct. The lesser sanction is typically an instruction from the trial judge to the jury that, if the product had been preserved, it would have been unfavorable to the party that failed to preserve it.

The Creazzo decision may be a departure from the spirit of the Schroeder three-factor analysis, but it is not a departure from the letter of the law. In Creazzo, the Superior Court applied these factors with a particular focus on the first prong. The first prong is broken down into two components: (1) the extent of the offending party's duty or responsibility to preserve the evidence; and (2) the presence or absence of bad faith. The court then further breaks down the first component by stating that the offending party's duty is established when "(1) the plaintiff knows that litigation against the defendants is pending or likely, and (2) it is foreseeable that discarding the evidence would be prejudicial to the defendants." The court found that the Creazzo's had a duty to preserve the product that was the subject of their claim and had failed to do so. When considering the second factor of the Schroeder test, the court stated that in a manufacturing defect case, where the product is lost without being examined by an expert, "both proof and defense of the claim are severely compromised."

The Superior Court previously reviewed the loss of a product by a third party in Sebelin v. Yamaha Motor Corporation, 705 A.2d 904 (Pa.Super. 1998). Sebelin was a defective design claim resulting from an accident on an ATV. After the accident, the police impounded the ATV, and the plaintiffs requested that the vehicle be preserved, but the ATV was stolen off of the police impound lot. In Sebelin, the court's analysis focused on the prejudice to the defendant in a design defect claim. However, in a footnote, the court stated that, since the Sebelins were well warranted in assuming the ATV was secure at the police station, they were not derelict in their duty to preserve the evidence

Creazzo takes a step forward by finding a sufficient degree of fault on a plaintiff to warrant summary judgment when a third party discarded the evidence. The plaintiff was found to be at fault, despite having made a request that the evidence be preserved by the hospital. Therefore, plaintiffs who are aware of their potential claim are responsible for taking affirmative steps to preserve an alleged defective product, even when the product is in the custody of a third party. Otherwise, according to Creazzo, in manufacturing defect cases, plaintiffs risk dismissal of their claim if they do not ensure that the product is retained for examination by all parties.

*Tom is an associate in our Philadelphia, PA office. He can be reached at (215) 575 3562 or tjmckenzie@mdwcg.com.