Atanassova v. Gen. Motors

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Alexandrina Atanassova and David Pendergast, individually and as parents and natural guardians of S.P., a minor, Plaintiffs, v. General Motors LLC, Defendant.

Civil Action No. 2:20-cv-01728-RMG

United States District Court, D. South Carolina, Charleston Division

March 28, 2023

ORDER AND OPINION

Richard Mark Gergel, United States District Judge

Before the Court is Defendant's motion in limine No. 5 for adverse inferences based on the spoliation of the 2007 Silverado (Dkt. No. 153). For the reasons set forth below the Court denies the motion.

Background

This is a products liability case arising out of a fuel-fed fire that consumed the Plaintiffs' 2007 Silverado C1500 crew cab truck (the “2007 Silverado”). Plaintiffs allege that the vehicle fire was not precipitated by a collision. Plaintiffs allege the fire originated in the undercarriage area where the subject vehicle's fuel storage tank and its fuel supply components-including an “EVAP Canister”-were located. Plaintiffs allege that the EVAP Canister was unprotected from road debris, such as rocks and pebbles, and may have been struck by such debris precipitating the fire that consumed the 2007 Silverado. Plaintiffs Alexandrina Atanassova and David Pendergast were allegedly injured in the fire, as was their then 3-year-old daughter S.P, who suffered second and third degree burns to 25% of her body.

On March 14, 2023, Defendant moved for adverse inferences based on alleged spoliation of the 2007 Silverado. (Dkt. No. 153). Defendant argues that after Plaintiffs' accident Plaintiffs engaged their current counsel-Leger Ketchum and Cohoon PLLC-and stored the 2007 Silverado at Lawson's Service Center in Summerton, South Carolina. (Id. at 4). Defendant contends Plaintiffs stored the 2007 Silverado uncovered in a field for over two years. (Id. at 4-5). Then, in July 2020, Defendant alleges Plaintiff used an industrial tractor with forks attached to lift the remains of the 2007 Silverado onto a flatbed car carrier to haul the vehicle to Texas for storage. (Id. at 6). Defendant states that from the “date of the incident until the vehicle reached Texas over two years later, Plaintiffs never provided GM LLC notice of the location of the vehicle or how it was being stored, moved, and handled. GM LLC's first inspection of the vehicle was not until the vehicle was already at its second Texas location in Houston.” (Id.).

As to spoliation of the 2007 Silverado, Defendant first implies that the “exhaust system routing” of the 2007 Silverado was damaged while the vehicle sat in the field at Lawson's. (Id. at 7-8). Second, Defendant implies that an in-tank fuel pump mount-a part Plaintiffs' expert Stephen Syson testified would be expected to outlast a fire because it was made from stainless steel-was either lost by Plaintiffs immediately after the fire that consumed the 2007 Silverado, stolen from Lawson's or destroyed by the elements. (Id. at 5); (Dkt. No. 153-6 at 5). Defendant argues this is significant because Syson opined that other incidents of fire in GM vehicles can be “traced to . . . in-tank fuel pump mount Corrosion.” (Dkt. No. 153 at 8). Third and last, Defendant argues that the steel bracket which attaches the EVAP Canister to the vehicle's frame was damaged by the forklifts which moved the 2007 Silverado from South Carolina to Texas. (Dkt. No. 153 at 7). Defendant argues this is significant because Plaintiffs' experts point to the “purported slight bending” of part of the bracket as evidence of the road debris strike that precipitated the fire.

On March 23, 2023, Plaintiffs filed a response in opposition. (Dkt. No. 176). Plaintiffs argue that Defendant's motion is untimely, that Defendant has not met its burden of showing an adverse inference is proper in this case, and that Defendant has not shown Plaintiffs in fact spoliated any evidence.

Defendant's motion is fully briefed and ripe for disposition

Legal Standard

Spoliation is “the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). A court's power to sanction spoliation derives from two sources: (1) Fed.R.Civ.P. 37(e); and (2) its “inherent power ... to redress conduct ‘which abuses the judicial process.'” Id. (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991)); see also Jenkins v. Woody, No. 3:15CV355, 2017 WL 362475, at *12 (E.D. Va. Jan. 21, 2017); CAT3, LLC v. Black Lineage, Inc., 164 F.Supp.3d 488, 498 (S.D.N.Y. 2016). Courts have broad discretion when deciding whether to impose spoliation sanctions. Turner v. United States, 736 F.3d 274, 281 (4th Cir. 2013).

“[T]he applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.” Silvestri, 271 F.3d at 590 (internal quotations omitted). Appropriate purposes include: “‘(1) deter[ring] parties from engaging in spoliation; (2) plac[ing] the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restor[ing] the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.'” Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D, 2017 WL 2483800, at *4 (E.D. N.C. June 7, 2017) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)); see also Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995) (describing similar goals).

A party bringing a motion for sanction based on spoliation bears the burden of establishing three independent elements before the court may determine which sanction, if any, is appropriate. The party must show: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Zajac v. Red Wing, LLC, No. 2:16-CV-1856-PMD, 2018 WL 9989661, at *3 (D.S.C. July 16, 2018). While the burden of proof on a motion for spoliation sanctions is unsettled, “the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference is sought.” GMS Indus. Supply, Inc. v. G&S Supply, LLC, No. 2:19-CV-324 (RCY), 2022 WL 853626, at *3 (E.D. Va. Mar. 22, 2022) (quoting Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018) (explaining that some courts a “preponderance of the evidence standard”)).^[1]

Discussion

Plaintiffs argue that Defendant's motion for spoliation is untimely. Discovery closed on January 2, 2021 and Plaintiffs note that they provided Defendant photos taken by their expert Michael Schulz-photos on which Defendant bases its motion-prior to December 18, 2020, the date of the report of Defendant's expert Jon Olson. (Dkt. No. 176 at 5); Olson Report, (Dkt. No. 47-2 at 6) (dated December 18, 2020 and referencing Schulz's photos). Plaintiffs note that they provided Defendant photos depicting the moving of the 2007 Silverado shown on page 6 of Defendant's motion, on February 1, 2021, (Dkt. No. 176 at 5); (Dkt. No. 176-1) (email providing photos), and that Defendant has had Plaintiffs' expert reports since November 2020, see (Dkt. No. 32).

Plaintiffs further explain that their experts Hannemann and Hille included photos of the canister bracket along with measurements of the degree of deformation in their October 31, 2020 report. (Dkt. No. 74-3 at 6). Last, Plaintiffs observe that Defendant's expert Jon Olson inspected the 2007 Silverado on December 10, 2020. (Dkt. No. 46-2 at 9).

Federal Rule of Civil Procedure 37 governs most motions for discovery sanctions but it does not contain any specific reference to the timing of the filing of a motion seeking spoliation sanctions. See McEachron v. Glans, No 98-CV-17(LEK/DRH), 1999 WL 33601543, at *2 (N.D.N.Y. June 8, 1999). Courts considering this issue have identified several factors that can be used to assess the timeliness of spoliation motions. First, “[k]ey to the discretionary timeliness assessment of lower courts is how long after the close of discovery the relevant spoliation motion has been made....” See, e.g., id. at *2 & n. 3 (holding spoliation motion made two weeks after the close of discovery was timely); id. at *2 (citing Shamis v. Ambassador Factors Corp., 34 F.Supp.2d 879, 886 (S.D.N.Y.1999) (finding motion for spoliation sanctions filed two months after conclusion of discovery was timely, as it was “not brought well after the close of discovery ... nor after the start of trial”)). Second, a court should examine the temporal proximity between a spoliation motion and motions for summary judgment. See, e.g., id. (citing Glenn v. Scott Paper Co., Civ. A. No. 92-1873, 1993 WL 431161, at *17 n. 3 (D.N.J. Oct. 20, 1993) (spoliation argument used to defend a summary judgment motion was untimely, as the plaintiff did not raise any concerns “during the discovery phase or bring them to the attention of the magistrate [judge]”)); Morse Diesel Int'l, Inc. v. United States, 81 Fed.Cl. 220, 222 (2008) (plaintiff's spoliation motion, which was filed after the court ruled on the plaintiff's motion for partial summary judgment, was held to be untimely); Ferrone v. Onorato, No. 05-303, 2007 WL 2973684, at *10 (W.D.Pa. Oct. 9, 2007) (spoliation argument should have been made in “appropriate discovery motion,” and not in “opposition to summary judgment [motion]”). But see, e.g., McDonald v. Wal-Mart Stores East,...