Defendant, Ridge Tool Company, appeals as of right from a jury verdict of $520,000 for plaintiff Ronald Hamann and $70,000 for plaintiff Patricia Hamann. 1 We reverse and remand for a new trial.
During a bridge reinforcement project in 1988, fifty-year-old plaintiff, an ironworker, used a cable
In his complaint against defendant, plaintiff alleged, inter alia, breach of express and implied warranties, negligence, and failure to warn. At the close of plaintiff’s proofs, the trial court granted defendant’s motion for a directed verdict with respect to the theories of failure to warn and breach of express warranty. Following trial, defendant moved for a judgment notwithstanding the verdict or a new trial, arguing in part that plaintiff failed to establish a prima facie case of negligence. The trial court denied defendant’s motion.
In reviewing the trial court’s denial of a motion for a judgment notwithstanding the verdict, we examine the testimony and all legitimate inferences that may be drawn in the light most favorable to the plaintiff.
Thorin v Bloomfield Hills Bd of Ed,
I. MISSING EVIDENCE
We find it necessary to reverse because the trial
Generally, where a рarty deliberately destroys evidence, or fails to produce it, courts presume that the evidence would operate against the party who destroyed it or failed to produce it.
Johnson v Secretary of State,
Other jurisdictions have addressed this point,
"[W]here one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court should draw thе strongest allowable inferences in favor of the aggrieved party.” The strength of the inference allowable obviously will vary according to the facts and evidentiary posture of a given case. Whether the defendant’s actions may result or must result in an inference that the missing evidence would be unfavorable to the spoliator, or result merely in a burden-shifting presumption, will depend upon a case by case analysis. [Id. at 1247. Citation omitted.]
In the products liability context, there have been several cases in which one party was able to have its experts examine the evidence but then either negligently destroyed or accidentally lost the evidence without providing the other party’s experts an opportunity to examine it. The courts that have addressed whether the evidence is admissible have not allowed the party that lost the evidence to produce expert tеstimony based on that evidence if it would substantially prejudice the other party.
In
Dillon v Nissan Motor Co, Ltd,
986 F2d 263 (CA 8, 1993), the Eighth Circuit Court of Appeals upheld the district court’s exclusion of the plaintiffs expert testimony and exhibits. The
Dillon
plaintiff argued that a design defect in a Nissan automobile caused him injuries during an acci
Noting that photographs taken before the destruction of the vehicle failed to document adequately critical areas of the vehicle, the Eighth Circuit Court of Appeals found no abuse of discretion in the district court’s ruling that the defendant was prejudiced by the destruction of potentially useful evidence. Id. at 268. Accordingly, the Dillon court held that the plaintiffs expert testimony and exhibits were properly excluded. Id.
In
Unigard Security Ins Co v Lakewood Engineering & Mfg Corp,
982 F2d 363 (CA 9, 1992), thе plaintiff insured a yacht that was destroyed by a fire caused by an unattended heater. Acting under an assumption that subrogation was unavailable, the plaintiff destroyed the heater and the yacht. Subsequently, the plaintiff brought a subrogation claim against the defendant. The defendant filed a counterclaim, asserting the intentional tort of spoliation of evidence.
Id.
at 365. The Ninth Circuit Court of Appeals found that the district court properly exercised its discretion in excluding evidence from the plaintiffs experts about the heater because it would unfairly prejudice the defendant.
Id.
at 368. The court also decided that the district court had the discretion to determine that a rebut-table presumption against the plaintiff would have
In the present case, the trial court should not have admitted Frank’s testimony that was based upon magnification observations he made of the missing hoist handle pieces. In his testimony, Frank relied upon his examination of the lost pieces in formulating his opinion that the casting was flawed. This testimony was prejudicial and could not be rebutted by defendant. We conclude that the trial court erred in permitting plaintiff to offer testimony about evidence that was lost, even though it was unintentionally lost. It would be unfair to permit the negligent party to benefit from his own error. Whether the evidence was destroyed or lost accidently or in bad faith is irrelevant, because the opposing party suffered the same prejudice; specifically, defendant was unablе to challenge the evidence or respond to it. Accordingly, we find defendant is entitled to a new trial because of the unfair prejudice resulting from Frank’s testimony regarding lost evidence.
Because we have found it necessary to remand this case for a new trial, we will briefly address those claims of error likely to arise again. We are satisfied that the admission of the chemical analysis was harmless error, but reference to the chemi
Likewise, the trial court did not err in admitting the photographs depicting the missing pieces. The parties were on equal footing as long as Frank was restricted to testifying only to what he could discern from the photographs and not from his independent opportunity to examine the missing pieces under a microscope. Summitt testified that the pieces were lost before he was able to examine them and that he relied solely on the photographs of them. Thus, Summitt did not base his testimony on evidence that was unavailable to defendant.
II. NEGLIGENT MANUFACTURE
We find that plaintiff presented sufficient evidence to support his theory that defendant negligently manufactured the cable hoist. When the evidence is viewed most favorably to plaintiff, the testimony and all legitimate inferences support plaintiff’s claim of negligеnt manufacture. Because reasonable jurors honestly could have reached different conclusions, the trial court properly denied defendant’s motion for a judgment notwithstanding the verdict.
Thorin, supra,
696. Furthermore, the trial court’s refusal to grant defendant’s motion for a new trial on this ground did not
The jury reasonably could find from testimony of plaintiffs fellow workers that plaintiff was using the hoist within its capacity and with its original handle. 6 Frank testified that the hoist frame casting was flawed. Defendant’s own expert, David Felbeck, testified that there must have been a preexisting crack in the handle frame from a previous overload. The theory of negligent manufacture was buttressed by the fact that there was no dispute that the handle should have bent before the handle frame fractured if the cable hoist was overloaded. In the present case, the handle frame fractured and the handle did not bend. Under thesе circumstances, the trial court did not err in concluding that the jury reasonably could find that a casting flaw caused the handle frame to break prematurely.
III. NEGLIGENT DESIGN
Finally, we find plaintiff presented sufficient evidence with respect to his theory of negligent design. Having reviewed the record, we conclude that a jury could find that defendant negligently failed to eliminate an unreasonable risk of foreseeable injury because the cable hoist’s design allowed the partial insertion of the handle.
7
Prentis
The experts agreed that the handle in the present case was inserted only partially into its socket. They also agreed that this would incrеase the force exerted on the handle frame and would double the force if the handle had been inserted bnly halfway. Harold Josephs, one of plaintiff’s experts, testified that it appeared from the design that a partially inserted handle would operate the cable hoist and that this design feature created a problem. He added that such partial insertion would create additional torque on the handle, which could induce a fracture. Eugene Revolinsky, an expert for the defense, acknowledged that it was foreseeable that someone would use a partially inserted handle. He admitted that the operator’s manual did not address this point.
In light of the expert testimony, the jury reasonably could infer that the use of the cable hoist with the proper handle only partly inserted caused the fracture of the handle frame that led to plain
Reversed and remanded for a new trial.
Notes
Patricia Hamann’s claim of loss of consortium is derivative in nature; thus, in this opinion, “plaintiff” will refer to Ronald Hamann only.
As a consequence of suffering two strokes unrelated to the accident, plaintiff does not recall the accident.
Plaintiff argues that this issue is precluded from this Court’s review because defendant did not isolate and emphasize Norman Frank’s testimony on appeal. Nevertheless, defendant did argue that evidence and cites the relevant standard. Thus, plaintiff’s point is without merit.
Before trial, defendant requested that the trial court exclude all testimony that relied upon or referred to the photographs or the chemical analysis of the two lost pieces. Plaintiff responded that he would restrict his proofs concerning the two broken pieces to the photographs previously taken of them and argued that he should be able to present evidence of the chemical testing because defendant could have tested the aluminum on the cable hoist’s broken handle frame. The trial court allowed plaintiff’s experts to testify with respect to the chemical analysis and the photographs of the two lost pieces.
See also
DePuy, Inc v Eckes,
427 So 2d 306, 307-308 (Fla Apр, 1983) (the defendant accidently lost a piece of a hip prosthesis, which allegedly broke, after the plaintiffs sent it to the defendant but before the plaintiffs’ expert had examined it);
American Family Ins Co v Village Pontiac GMC, Inc,
223 Ill App 3d 624, 627-628;
It was within the province of the jury to reject the opinion expressed by both plaintiffs and defendant’s experts that plaintiff used a substitute handle on the hoist.
We note that plaintiff presented insufficient evidence that defendant’s selection of aluminum for the casting was a design defect. Although plaintiffs expert, Summitt, tеstified that aluminum was a "poor application,” he was unable to propose a replacement feature or suggest a different material for the hoist-handle frame because it was not his field. This evidence was not adequate to create an issue of material fact regarding whether the design was defective.
Plaintiff also contended that the design was defective because
Josephs testified that there were two ways to avoid the problems associated with a partial insertion: (1) design a handle that had unique dimensions to ensure that the handle was secure and fully in the socket; or (2) put a steel lining in the handle frame that would distribute the force of a partially inserted handle throughout the cable hoist.