Lead Opinion
¶ 1 Appellant, the Emerson Electric Company, Wiegand Division,
¶ 2 The factual background of the case is as follows. Appellant manufactured and distributed a Chromalox Model TLC-210 Immersion Heater, which the Church used to heat water in a large baptismal pool. On November 26, 1994, a fire erupted in the Church building, causing extensive damage in the stipulated amount of $981,000.00. On November 22, 1996, the Church filed a complaint against Appellant, alleging that the heater was defective and that the heater caused the fire.
¶ 3 Specifically, the Church alleged the following. A church employee filled the baptismal font and turned on the heater. The water drained from the pool, but the heater did not shut off. The heater reached extremely high temperatures and burned the bottom of the empty baptistry; the fire then spread to other parts of the building. The Church further alleged that the heater was defectively designed because it lacked safety warnings and safety devices such as a thermocouple and a low-water shutoff.
¶ 4 The case proceeded to trial from May 10 — May 14, 1999. The jury found that the heater was defective and that the heater was the proximate cause of the damage. The jury awarded $981,000.00 to the Church. Appellant’s post-trial motions were filed on May 24, 1999, and denied on September 21, 1999. On October 18, 1999, judgment was entered on the verdict.
¶ 5 Appellant raises three issues on appeal:
1. Whether the lower court committed reversible error warranting a new trial when it failed to properly instruct the jury, in accordance with controlling Pennsylvania precedent, that the product manufactured by Emerson was defective if — and only if — the product, at the time it left*1267 Emerson’s control, was unsafe for its “intended use,” rather than “unsafe for use” as the lower court erroneously instructed.
2. Whether the lower court committed reversible error and/or abused its discretion warranting JNOV or a new trial, when it failed to dismiss Plaintiffs claims, failed to grant Emerson’s request for a spoliation inference jury instruction and/or failed to impose any sanction upon Plaintiff as a consequence of Plaintiffs intentional destruction of critical fire scene evidence, where that destruction prevented Emerson from identifying other potential causes of the fire and as a result, substantially prejudiced Emerson’s ability to prepare a defense.
3. Whether the lower court abused its discretion or erred in permitting Plaintiff to introduce at trial highly prejudicial and inflammatory evidence of alleged other fires involving similar heaters thus suggesting to the jury that the subject product had been previously adjudicated a fire hazard, where the lower court ultimately ruled that the incidents were not similar at all.
Appellant’s brief at 4.
¶ 6 First, Appellant argues that the trial court committed reversible error by instructing the jury that the jury must determine whether the heater was “safe for use,” rather than “safe for its intended use.” Appellants’ Brief at 21. Specifically, Appellant claims that the omission of the word “intended” relieved the jury from determining “whether the heater was intended to be used for the purpose to which it was put.” Id. Appellant further alleges that they presented at trial “substantial and uncontroverted testimony establish[ing] that use in a baptistry font was not an intended use of this heater.” Id. at 22.
¶7 In the instant case, the challenged instruction in relevant part reads as follows: “If you find that the heater at the time it left the defendant’s control lacked any element to make it safe for use or contained any condition that made it unsafe for use, then the heater was defective and the defendant is responsible for any harm caused by that defect.” N.T., 5/14/99, at 1224-1225.
¶ 8 The purpose of a jury charge is to clarify the legal principles at issue. General Equip. Mfrs v. Westfield Ins. Co.,
¶ 9 As most recently stated by this court in Phillips v. Cricket Lighters,
¶ 10 The record reflects that the intended use of the product was to heat liquids. Appellant’s Director of Sales Engineering testified that the intended use of the product was to heat water or a water based solution. N.T., 5/13/99, at 823. Indeed, the product could be used to heat water in a baptistry. Id. Appellant generally does not know how purchasers will use the product after it is sold; however, “they could use it for almost anything that they wanted.” Id. at 826-827.
¶ 11 Appellant’s only other witness, a fire expert, opined that the fire did not begin in the baptistry. Id. at 888. Appellant’s counsel stated in closing argument that the issue was not whether the product was intended for use in a baptistry:
Now, I told you in the beginning this case is not whether this is a baptistry heater or not. It’s not. But the reality is that somebody put this into a system, added all this heavy duty wiring and these components and made it work just fine in this baptistry for more than twenty years. And it still would be working if it hadn’t been for that fire.
N.T., 5/14/99, at 1187 (emphasis added). Appellant’s counsel argued that the fire did not start in the baptistry, recounted the testimony offered by the fire expert and pointed to the evidence which bolstered the expert’s opinion.
¶ 12 Thus, the testimony of Appellant’s own witnesses and counsel’s closing argument did not suggest an unintended use. Rather, Appellant sought to establish that: (1) the heater worked properly on the day of the fire; (2) the heater was not the cause of the fire; and (3) the fire started elsewhere in the church. Finally, as noted above, the intended use of the product was as a water heater. It is undisputed that the Church used the product as a water heater. Because the evidence did not support an instruction on intended use, the trial court did not err by fading to provide such an instruct on. See, Marshall and Craley. Appellant’s first claim fails.
¶ 13 Appellant next asserts that the trial court erred in failing to provide any sanction for the spoliation of evidence.
¶ 14 Specifically, Appellant argues as follows. Shortly after the November 26, 1994 fire, the Church knew that the heater was a “prime suspect” as the cause of the fire. The Church and its insurer developed this theory through expert reports and photographs, specifically targeting the heater as the source of the fire. After the Church settled with its insurer in November 1995, the Church and/or its insurer destroyed the fire scene and did not photograph or preserve evidence tending to establish other sources of the fire. Moreover, the insurer knew long before the scene was destroyed that it had a potential subrogation claim against Appellant. Indeed, the insurer brought the instant products liability action against Appellant, with the Church as the named plaintiff. The insurer first notified Appellant of its claim on September 30,1996, after the fire scene had been demolished. For these reasons, Appellant claims the trial court erred in failing to impose a spoliation sanction, such as dismissing the Church’s case.
¶ 15 When reviewing a court’s decision to grant or deny a spoliation sanction, we must determine whether the court abused its discretion. Croydon Plastics Co. v. Lower Bucks Cooling & Heating,
¶ 16 In Schroeder v. DOT,
Since the early 17th century, courts have admitted evidence tending to show that a party destroyed evidence relevant to the dispute being litigated. Jamie S. Gorelick, Steven Marzen and Lawrence Solum, Destruction of Evidence, § 2.1 (1989). Such evidence permitted an inference, the “spoliation inference”, that the destroyed evidence would have been unfavorable to the position of the offending party. As Judge Breyer put it in Nation-Wide Check Corp. v. Forest Hills Distributors, Inc.,692 F.2d 214 , 218 (1st Cir.1982), “the evidentiary rationale [for the spoliation inference] is nothing more than the common sense observation that a party who has notice that [evidence] is relevant to litigation and who proceeds to destroy [evidence] is more likely to have been threatened by [that evidence] than is a party in the same position who does not destroy the document.” As Judge Breyer also noted, the spoliation inference is also seen as having “prophylactic and punitive effects.” Id. The admissibility of spoliation evidence and the propriety of the spoliation inference is well established in most jurisdictions, including Pennsylvania. See e.g., Nation-Wide Check Corp.,692 F.2d 214 (1st Cir.1982); Mensch v. Bic Corp.,1992 WL 236965 (E.D.Pa.1992) (citing Pennsylvania cases); Gorelick, et al., supra, § 2.24....
We believe the key considerations in determining whether such a sanction is appropriate should be: (1) the degree of*1270 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 and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. See e.g., Dillon v. Nissan Motor Co., Ltd.,986 F.2d 263 (8th Cir.1993); SDI Operating Partnership, L.P. v. Neuwirth,973 F.2d 652 (8th Cir.1992); Gorelick, et al, supra, § 3.16, p. 117 (“To fulfill the purposes of discovery sanctions ... — that is, to restore the accuracy of the trial, compensate innocent victims, and punish guilty spoliators — courts select the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim.”)
Schmid,
¶ 17 Thus, the reasoning of Schmid applies not only to cases where the product is lost or destroyed, but also to cases where alternative potential causes of the accident are lost or destroyed. See, Pia v. Perrotti,
¶ 18 In the instant case, the trial court conducted a spoliation analysis. First, the court determined that there was “no negligence or bad faith on the part of the plaintiff.” Trial Court Opinion, 6/28/2000, at 8. Next, the court found that Appellant suffered relatively little prejudice for several reasons: (1) the actual product was not destroyed or missing; (2) “there are voluminous documents and photographs of the actual fire scene, thus reducing the need for an on scene inspection”; and (3) the Philadelphia Fire Department conducted its own investigation and determined the cause of the fire. Id. Finally, the court concluded that the drastic sanction of dismissal sought by Appellant was unwarranted under these circumstances. Id.
¶ 19 Under the specific circumstances of this case, we see no abuse of discretion. We begin with an analysis of fault. Fault has two components: responsibility, and the presence or absence of bad faith. Pia,
¶ 20 As to the first component, we note that a plaintiff has a general duty to preserve relevant evidence where: (1) the plaintiff knows that litigation against the defendants is pending or likely; and
¶ 21 Of course, “the scope of the duty to preserve evidence is not boundless.” Baliotis,
¶22 If, on the other hand, the investigations of the plaintiff and independent experts reveal no alternative sources of the fire, the plaintiff may be considered less at fault for failing to preserve the entire fire scene, because there is no clearly relevant defense evidence to preserve (aside from the allegedly-defeetive product itself). See, id. at 324 (party considered less at fault for failing to preserve scene where “she simply preserved what she had been informed was important”). This is not to say that a spoliating party is necessarily blameless in such a situation. For example, where the victim of a fire has identified a potentially responsible party, particularly in the early stages of the investigation, it may be just and reasonable to notify such a party so that the party can conduct a full and complete investigation, untainted by spoliation. Howell,
¶ 23 In the instant case, the Church and its insurer certainly could have afforded Appellant the opportunity to inspect the fire scene, and are not blameless for their failure to do so. Howell,
¶ 24 A second component of fault is the presence or absence of good faith. Pia,
1125 Next, we turn to the issue of prejudice. It is commonly accepted that a defendant suffers some measure of prejudice if it is precluded from conducting its own independent investigation of a fire scene to determine alternate causes. Pia,
¶ 26 On the other hand, prejudice to the defendant is less severe where potential alternative causes of the accident are speculative. Schmid,
¶ 27 In the instant case, the factors recited above indicate that Appellant suffered a relatively low degree of prejudice. The record reveals that Appellant presented a vigorous defense to the Church’s theory of causation, and presented a renowned fire expert to render an opinion based on the Church’s evidence. The investigations of the Church and the fire marshal did not reveal an alternative source of the fire; thus, the failure to preserve the entire scene resulted in only a speculative degree of prejudice. Finally, because this was a design defect case, Appellant had a reasonable opportunity to examine other products under similar circumstances.
¶ 28 In light of the trial court’s determinations of fault and prejudice, we also see no abuse of discretion in its decision to refrain from issuing sanctions that would have the effect of dismissing the Church’s case. Generally, courts should select the least onerous sanction commensurate with the spoliator’s fault and the other party’s prejudice. Schmid,
¶ 29 Appellant argues that the trial court erred by failing to impose any sanction, including lesser sanctions such as a spoliation instruction to the jury.
¶ 30 Appellant’s final claim is that the trial court committed reversible error when it permitted the Church to offer testimony concerning other fires involving immersion heaters. Specifically, the Church called (as on cross examination) Donald M. Cunningham, a former engineer and current consultant to Emerson. N.T., 5/12/99, at 518. Before he testified, the Church’s counsel indicated that he would ask Mr. Cunningham questions about other fires involving immersion heaters. Id. at 513-514. Appellant objected that this testimony would constitute a surprise because Appellant first learned of this proposed line of questioning on the previous afternoon. Id. at 512, 515. Appellant also indicated that the court should first conduct an evidentiary hearing to determine whether the incidents and products were similar, Id. at 513. The trial court replied, “let’s begin the trial testimony and we will see what develops.” Id. at 516.
¶ 31 The Church’s counsel questioned Mr. Cunningham at length in an attempt to establish that immersion heaters manufactured by Emerson were involved in other church fires. N.T., 5/12/99, at 534-554.
¶ 32 Before closing argument, Appellant asked the court to preclude the Church’s counsel from referring to the other church fires. N.T., 5/13/99, at 1155. The trial court agreed. Id. The Church’s counsel did refer to other church fires, but the court overruled Appellant’s objection to this reference. Id. at 1204. The court did, however, grant Appellant a supplemental jury charge regarding the evidence of other fires. Id. at 1145-1146. The court instructed the jury:
Members of the jury, you may recall that I permitted Mr. Yost to cross-examine Mr. Cunningham regarding other fires involving the heater in question. Now, from time to time we do permit this type of evidence. And we permit the attorneys to offer this subject by laying a proper foundation. Now, when I talk about laying a proper foundation what I’m saying is that evidence is only admissible if it’s relevant. By relevant we mean important. And evidence should not be admitted if it may prejudice the other side, in this case the defendants.
Evidence of other fires was admissible only if Mr. Yost could establish that the evidence concerns incidents sufficiently similar to the fire involving the church and occurred under sufficiently similar circumstances.
If Mr. Yost has failed to satisfy the burden on this issue, then I instruct you to disregard the evidence in its entirety. You may not consider these factors and the similar products involved in those fires in reaching your decision. There simply is no evidence that those fires which do not involve this type of heater had any bearing on plaintiffs claims in this case.
N.T., 5/14/99, at 1209-1210.
¶33 Appellant argues that the trial court erred by allowing the jury to hear the line of questioning involving other fires and other heaters because the court did not first hold an in camera hearing to determine whether the other incidents were sufficiently similar to the instant case. “While evidence of other occurrences involving an allegedly defective product may be admissible in the plaintiffs case in chief to show (1) the existence of a defective condition, (2) causation, or (3) notice of the defect, such evidence is admissible only if the plaintiff first establishes a substantial similarity of conditions between the prior incident and the incident giving rise to the plaintiffs cause of action.” Spino v. John S. Tilley Ladder Co.,
¶ 34 We recognize the possibility that an open-ended, argumentative exploration of possible similar incidents will confuse the jury and prejudice the defendant with the taint of unproven prior incidents. See, Spino,
¶ 35 Nevertheless, the testimonial evidence offered by Mr. Cunningham did not prove to be prejudicial to Appellant. Mr. Cunningham distinguished the facts and the use of the heaters in other cases and did not testify or suggest that Appellant’s product caused other fires. To the extent the posing of the questions themselves prejudiced Appellant, the trial court corrected that error in its instruction to the jury. The jury was advised to ignore this line of questioning and was specifically told not to consider the relationship of other similar products and other fires in its deliberations. Generally, in the absence of extraordinary circumstances, a prompt and effective curative instruction which is “directed to the damage done” will suffice to cure any prejudice suffered by the complaining party. See, Siegal v. Stefanyszyn,
¶ 36 Judgment affirmed.
¶ 37 DEL SOLE, President Judge, files a concurring opinion.
Notes
. The parties and the court occasionally refer to Wiegand and Emerson as separate entities. For consistency and convenience, however, we will refer to Wiegand and Emerson singularly as "Appellant.”
. After delay damages were added, the final verdict amount was $1,093,122.76.
. Appellant filed its notice of appeal on October 14, 1999. Judgment was not entered on the verdict until October 18, 1999. Appellant’s notice of appeal was premature because an appeal properly lies from the entry of judgment, not from the denial of post-trial motions. Fetherolf v. Torosian,
. Appellant raised this issue two times before trial. On October 5, 1998, Appellant filed a motion for summary judgment seeking to dismiss the case with prejudice as a spoliation sanction. The trial court denied this motion on November 16, 1998. On April 22, 1999, Appellant filed a motion in limine proposing a different sanction for the Church's spoliation: identifying the Church's insurance company as the real party in interest. The trial court denied this motion on May 6, 1999.
. In Pia,
. As in Pia, we decline to announce a blanket rule that "a plaintiff must in every case preserve the entire fire scene.” Pia,
. Of course, courts do have the discretion to determine that a party acts in bad faith where that party deliberately orders a fire scene to be destroyed without allowing a known potential tortfeasor to examine the scene. See, Henkel,
. Appellant contends that the instant case was not a classic design defect case, where experts on both sides could study the product and debate whether it had an inherent defect. Appellant's Brief at 31-32. Rather, Appellant contends that "plaintiff’s entire proof came from the fire scene which Plaintiff destroyed without giving Defendant the opportunity to examine it.” Id. at 32. In other words, Appellant argues that the case centered primarily on whether the fire started in the baptistry, rather than whether the product was defective. While we understand Appellant’s position, the fact remains that the Church had the burden of proving that the product had a design defect. The jury found that the product was defective, and Appellant raises no argument on appeal directly challenging this determination. Thus, we see merit to the Church's argument that ”[t]he product in question was preserved and Emerson had ample opportunity to inspect and test it or any other comparable products. However, apparently recognizing that it could not defend the design of its product, Emerson chose to take the position that its product did not cause the fire and that the fire did not even start in the
. We note that in Henkel; a fire scene case where the trial court ruled that the plaintiff was highly culpable and the prejudice to the defendant was severe, the court still declined to dismiss the case because such a sanction was considered too punitive. Henkel,
. A spoliation instruction permits the jury to infer that ‘‘the destroyed evidence would have been unfavorable to the position of the offending party.” Schmid,
. In the presence of the jury, the court commented to the Church’s counsel that "I want proof .. that was are talking about the same heater, and I haven’t heard it yet.” Id. at 544.
. Appellant argues that the curative instruction itself was inadequate. This issue is waived because Appellant did not raise a prompt objection to the curative instruction. See, Burnhauser v. Bumberger,
Concurrence Opinion
concurring.
¶ 1 I agree with the Majority’s ruling affirming the judgment entered in favor of the Church. However I believe the Majority’s spoliation analysis is unnecessary.
¶ 2 The doctrine of spoliation applies to cases in which the product is damaged or missing. Roselli v. General Electric Co.,
¶ 3 Contrary to the Majority’s position I do not find instructive this court’s decision in Pia v. Perrotti,
¶ 4 In this case, the investigation led to the baptistry heater. The heater and all items related to the heater were preserved and available for Appellants’ inspection. Appellants’ claim, regarding a lack of access to the entire fire scene, differs significantly from the facts of Pia.
¶ 5 Because the facts of this case did not warrant a spoliation analysis, I concur in the Majority’s decision which finds no error on the part of the trial court.