In Schroeder v. DOT, 710 A.2d 23 (Pa. 1998), the Pennsylvania Supreme Court adopted the spoliation of evidence standards set forth in Schmid v. Milwaukee Electric Tool Corporation, 13 F.3d 76 (3rd Circuit Pa. 1994). According to Schmid, the spoliation doctrine is broadly applicable in cases where relevant evidence has been lost or destroyed. 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 such evidence. The spoliation inference is also seen as having both prophylactic and punitive effects.
The reasoning of Schmid applies not only in cases where a product is lost or destroyed, but also in cases where alternative potential causes are lost or destroyed. See Pia v. Perrotti, 718 A.2d 321 (Pa. Super. 1998). Such evidence is clearly relevant in a fire case, even if the case may center primarily on the narrower question of whether or not a product itself was defective. Baliotis vs. McNeil, 870 F. Supp. 1285 (M.D. Pa. 1994).
It is commonly accepted that a defendant suffers some measure of prejudice if the defendant is precluded from conducting its own independent investigation of a fire scene to determine ultimate causes. See Pia, 718 A.2d at 325. On the other hand, prejudice to the defendant is less severe where potential alternative causes of the accident are speculative. See Schmid, 13 F.3d at 80. This may occur when an independent third-party expert, such as a fire marshal, has investigated the scene, because in such situations, the defendant need not rely solely on the plaintiff’s own investigation to determine the presence or absence of alternative causes. Courts have held that a defendant in a fire scene case is rarely precluded from presenting a defense to the plaintiff’s claim as the defendant can cross examine the plaintiff’s experts and call its own experts to render opinions based on the plaintiff’s evidence. See Pia, 718 A.2d at 325.
Where spoliation is found, courts generally select the least onerous sanction commensurate with the spoliator’s fault and the other party’s prejudice. See Schmid, 13 F.3d at 79. Where fault and prejudice are not severe, dismissal is inappropriate. Schroder, 710 A.2d at 27-28. Even in a fire scene case where the trial court found the plaintiff highly culpable and the defendant severely prejudiced, the court still declined to dismiss the case. See Henkel 194 F.R.D. 457. In many cases a spoliation instruction to the jury is often granted because it is considered the least onerous penalty commensurate with plaintiff’s degree of fault and the defendant’s prejudice. Pia, 718 A.2d at 325.
What It Means to You
A plaintiff has a general duty to preserve relevant evidence where: 1) The plaintiff knows that litigation against the defendant is pending or likely; and 2) It is foreseeable that discarding the evidence would be prejudicial to the defendant. A plaintiff does not have a responsibility to identify all potential defendants and to invite them to attend an exploratory investigation. These principles hold true regardless of whether the plaintiff is an insured or an insurer pursuing a subrogation action. The plaintiff’s power to control the scene and to exercise authority over the preservation or destruction of evidence is a relevant factor in determining responsibility. Courts will weigh the spoliator’s fault and the other party’s prejudice in selecting a sanction. The attorneys at Cipiriani & Werner can assist you in navigating spoliation of evidence issues that may exist in your case.