A product liability plaintiff IS not subject to sanctions for loss or destruction of physical evidence arising from disassembly and inspection of allegedly defective product by Plaintiff’s expert where THE loss or destruction was Unintentional and the trial court had not entered an order not to destroy evidence

Plaintiff sustained serious injuries when gas leaked from the regulator vent of his barbecue’s gas tank and the heat from the grill ignited the gas.  Nine months after the incident, Plaintiff’s expert inspected the regulator by disassembling it.  He photographed the regulator before and during disassembly and videotaped most of the disassembly process.  After becoming aware of the inspection, Defendants sought sanctions against Plaintiff, claiming spoliation of evidence.  The trial court did not impose sanctions and, after entry of a final judgment following a jury verdict in Plaintiff’s favor, Defendants appealed.

Finding that Defendant’s spoliation of evidence argument lacked merit, the Court held that, in the absence of a violation of a court order prohibiting the destruction of evidence or an intentional destruction or loss of physical evidence, sanctions on the basis of an alleged spoliation of evidence generally are inappropriate.  The Court noted that all of the parts were recovered after the fire, were introduced into evidence at trial and the parties’ experts and the jury were given an opportunity to inspect them.

Citing its own prior opinions, the Court, however, did state that drastic sanctions, including a default, are appropriate where a party ordered not to destroy evidence do so, resulting in an opponent’s inability to proceed.  See Rockwell Int’l Corp. v. Menzies, 561 So. 2d 677 (Fla. 3d DCA 1990)(defendant’s violation of a court order by its intentional destruction and loss of two bolts justified the striking of defendant’s pleadings and the entry of a default on liability, where the plaintiff’s expert could not rebut the testimony of defendant’s expert due to the destruction of the bolts); DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983)(sanctions appropriate where a defendant ordered not to destroy evidence does, in fact, alter or destroy critical physical evidence and where the plaintiff demonstrates an inability to proceed without that evidence).

Grand Hall Enter. Co. v. Mackoul,
26 Fla. L. Weekly D661 (Fla. 3d DCA  Mar. 7, 2001).