Central to every injury lawsuit in Florida is the evidence. The truth is important, of course, but in the end, it’s more about what you can prove. That’s why motions to suppress are so important – if one party can suppress evidence from another, they have a better shot at winning. But what if one side negligently fails to preserve relevant evidence?
This is called spoliation, and it happens quite a bit, unfortunately, particularly when a plaintiff doesn’t file a lawsuit right away. That’s because there is certain evidence naturally in defendant’s possession – i.e., security tapes, vehicles, product parts, etc. If a key piece of evidence is lost or destroyed, plaintiff is going to face significant hurdles in proving the case. It could even mean the case can’t be proven. But that does not mean plaintiff is necessarily without remedy. Courts have wide latitude and authority to sanction for spoliation of evidence. The primary limit on this authority is that discovery rules on evidence are only applicable to acts of spoliation that happen either while a lawsuit is pending or following a court order. Additionally, more courts are beginning to adopt the federal standard for evidence spoliation set in Zubulake v. UBS Warburg LLC.
The Zabulake standard requires the imposition of a litigation hold once the party “reasonably anticipates” that a lawsuit may arise from the incident.
The recent construction accident case of Schaefer v. Universal Scaffolding & Equip. LLC is an example of the type of remedy a plaintiff may have even when the evidence is destroyed. Plaintiff was a construction worker who was seriously injured when, as he alleges, a defective piece of scaffolding fell and hit him on the head.
Plaintiff and his employer were on site at an energy plant to erect scaffolding for a project.The scaffolding in question used a “cup-lock” system to lock into place. However, as pieces arrived on site from the manufacturer, plaintiff and his boss noted numerous pieces were arriving defective. Some weren’t he right length, while others were bent. These pieces couldn’t properly lock into place the way they were supposed to. It wasn’t just one or two pieces either. The problem got to be so bad that as each piece arrived on site, plaintiff’s boss had the crew inspect it, and the faulty components were set aside.
Plaintiff and a co-worker were then assembling the scaffolding, with plaintiff situated underneath. It’s disputed what happened next. Defendant manufacturer asserts the co-worker dropped the scaffolding piece, but plaintiff alleges the piece popped out of its locked position due to being defective.
Plaintiff filed a workers’ compensation claim with his employer, followed by a personal injury lawsuit against the manufacturer of the scaffolding.
However, proving his claim has become problematic because, as he later learned, the exact piece of scaffolding that had struck him was lost. In addition to his injury claims, plaintiff added a claim for spoliation of evidence.
In a series of court decisions, the lower court dismissed each of plaintiff’s claims – including the one for spoliation – reasoning that without the defective piece, plaintiff would be unable to prove it was in fact defective and thus, he was unable to prove the loss caused him any damage.
The U.S. Court of Appeals for the Seventh Circuit reversed as to the spoliation claim. The court looked at Illinois law (where this incident occurred) and found the statute doesn’t require plaintiff show he would have won the case but for the spoliation. What he did have to show was a reasonable probability of success on the underlying injury lawsuit. In this case, plaintiff still had access to a batch of allegedly defective scaffolding that could be analyzed for defective pieces, so the loss of this one was not necessarily fatal to his case. Therefore, the grant of summary judgment to defense on the spoliation claim was improper.
Courts have a great deal of discretion for how to deal with spoliation – up to and including awarding damages in the amount that likely would have been won by plaintiff had the spoliation not occurred.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Schaefer v. Universal Scaffolding & Equip. LLC , Oct. 7, 2016, U.S. Court of Appeals for the Seventh Circuit
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