“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.

Following the accident, Plaintiffs hired an attorney who in turn hired an expert.  That expert was allowed to examine the truck Plaintiff was driving, but did not download the ACM because he was not qualified to do so.  The ACM would have provided valuable pre-accident details, including the speed at which Plaintiff was travelling leading up to the accident.  By the time the county defendant requested access to the truck—three years after the accident—it had been “parted out” and sold.  The timeframe of the loss was unclear.  Upon motion from Defendants, the trial court concluded that Plaintiffs had a duty to retain the truck because Plaintiffs’ expert had the opportunity to inspect it and “[i]t would likely be a quick jump to recognize that on down the line at some point” the defense would like to do the same.  The trial court also concluded, however, that Plaintiffs “did not act in bad faith or with deliberate intention to destroy the evidence.”

To address the loss, the trial court precluded the testimony of Plaintiffs’ expert as to his opinions on the drivers’ speed at the time of the accident.  Plaintiffs ultimately did not call the expert to testify. Defendants were also allowed to present evidence that the truck had been dismantled and sold and to inform the jury that Plaintiffs’ expert inspected the truck.  As to the latter point, Plaintiffs’ counsel argued that the jury would wrongfully infer that because the expert had not been called to testify, his conclusions were unfavorable to the plaintiffs – which was false.  Ultimately, Plaintiffs were not allowed to rebut the inference and the jury returned a verdict for the defense.

On appeal, Plaintiffs argued that the trial court “abused its discretion when it assumed, in error, that the [plaintiffs] ha[d] a duty to preserve the evidence and found spoliation as a result.”  Following analysis of relevant Washington law, the court agreed and concluded that “[t]he trial court erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”

The court also concluded that relevant case law—both state and federal— did not support permitting Defendants “to present evidence and argument of an adverse inference” where the failure to preserve was “merely negligent.”    Thus, “the trial court abused its discretion when it ruled in limine that the defendants could present evidence and argument suggesting such an inference.”  It is notable that in support of this conclusion, the court also acknowledged the pending amendment to Fed. R. Civ. P. 37(e), which will allow an adverse inference only upon a heightened finding of intent, and the proposed comments to the pending rule, which “reject federal decisions that, under some circumstances, authorize the giving of adverse inference instructions based on a finding of negligence or gross negligence.”

Despite rejecting the existence of a general duty to preserve, the appellate court indicated that “[g]iven developments in the federal courts and elsewhere, it may be time for Washington to reexamine whether it should recognize the existence of a general duty to preserve evidence.”

The court went on to find that the trial court also abused its discretion by allowing Defendants to present evidence of Plaintiffs’ expert’s inspection, while denying Plaintiffs the opportunity to rebut the false inference that was created by the expert’s failure to testify at trial.

The court summarized its conclusions as follows:

The trial court erred in concluding that Washington has recognized a general duty to preserve evidence; it has not. For that reason, and because only intentional spoliation logically supports an adverse inference, the trial court erred when it ruled in limine that it would admit evidence and allow defense argument in support of such an inference. The trial court also abused its discretion in ruling in limine that the defense could present evidence to support argument of what was tantamount to a missing witness inference from the Cooks’ failure to call their expert witness on speed to testify at trial.

Ultimately, the court reversed judgment as to one defendant and remanded the case for a new trial.  A full copy of the court’s opinion is available here.

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