Archive: November 3, 2015

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“The trial court erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”

“The trial court erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”

Cook v. Tarbert Logging, Inc., —P.3d—, 2015 WL 5771329 (Wash. Ct. App. Oct. 1, 2015)

In this case, Plaintiffs failed to preserve the pickup truck involved in the at-issue accident, including the airbag control monitor (ACM), despite first allowing their own expert to inspect it.  To address the loss, Plaintiffs’ expert was precluded from testifying as to his opinion regarding the drivers’ speed and ultimately was not called as a witness.  Defendants were allowed to present evidence regarding Plaintiffs’ failure to preserve and to inform the jury of the expert’s inspection.  This created the false inference that the expert’s conclusions were unfavorable to the plaintiffs, which the plaintiffs were not permitted to rebut (the expert had in fact concluded that Plaintiff had been travelling at a “slower and safer speed” than the defendant at the time of the accident).  On appeal, the court determined that the trial court “erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”  The court also concluded that the trial court abused its discretion by allowing Defendants to tell the jury about the expert and his inspection without also allowing rebuttal from the plaintiffs.  Accordingly, the court reversed the case in part and remanded for a new trial.

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