Before Judges Keefe, Eichen, and Coburn.
The opinion of the court was delivered by: Keefe, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
Defendants Allen Canning Company, Wakefern Food Corporation, and Shop-Rite appeal from a Law Division order denying their motion to join the law firm of Jacob & Ferrigno (J & F) as a third-party defendant in a personal injury suit brought against defendants by plaintiff, Roland Hewitt, III, in which Hewitt was represented by J & F. The proposed third-party action sought damages from J & F on the theory of spoliation of evidence. We affirm.
Hewitt's suit against defendants alleged that on May 8, 1995, he partially consumed a grasshopper contained in a can of Farm Flavor brand spinach. He contended that he became ill as a result of the experience and sought compensatory damages. The complaint alleged that the spinach was canned by defendant Allen Canning Company, distributed by defendant Wakefern Food Corporation, and sold to plaintiff by defendant Shop-Rite.
Defendants, represented by the same law firm, filed an answer to plaintiff's complaint, claiming in their sixteenth separate defense that plaintiff was barred from pursuing his cause of action "by virtue of the fact that he participated in the spoliation of evidence either directly or through his agents." Thereafter, defendants filed a motion to dismiss plaintiff's complaint or, in the alternative, for an adverse inference at the time of trial on the ground that the spoliation of evidence deprived them of the opportunity to prepare a viable defense.
Plaintiff filed a brief and certification in opposition to the motion. The certification, signed by Judy Bailey, a legal assistant at J & F, disclosed that J & F stored the remainder of the can of spinach and grasshopper in the office refrigerator. She claimed that in October or November 1995 she became aware of a "strong and offensive odor" emanating from the refrigerator and discovered that its source was the sealed plastic container inclosing the can of spinach and grasshopper. When the problem was brought to the attention of one of the partners, the partner informed her that "so long as the pictures of the evidence were clear and vivid, same could be discarded." Accordingly, Bailey discarded all of the evidence.
In support of its motion, defendants submitted the certification of Robert B. Callaway, the coordinator of the Consumer Product Testing for the National Food Processors Association. He certified that:
"If plaintiff had preserved the evidence, meaning the can, product and alleged foreign object, at issue in this matter, we, on behalf of defendants, could have performed such tests as an electron microscope examination of the alleged foreign object, a container evaluation and chemical and bacteriological testing of the product, which would have enabled me to determine what the foreign object was, and perhaps whether the foreign object was present in the manufacturer's product when it left the manufacturer's control and if so, if it could have caused the injuries alleged. Defendants' motion was denied in its entirety."
Shortly thereafter, defendants moved for leave to file a third- party complaint against J & F, asserting the tort of spoliation of evidence and breach of duty to defendants. The motion was opposed by J & F. The motion Judge, understanding that granting the motion would require plaintiff to obtain new counsel, informed the parties that he believed it was his duty to scrutinize defendants' proposed claim against J & F despite the liberal interpretation ordinarily given to R. 4:9-1. The Judge concluded from his review of the record that defendants' evidence, at best, pointed toward negligent spoliation for which a cause of action had not yet been recognized in this state.
This court subsequently denied defendants' motion for leave to appeal and for a stay pending appeal. Thereafter, defendants settled plaintiff's claim for $3,000. The stipulation of dismissal expressly provided that the matter between defendants and J & F had not been settled and that defendants reserved the right to pursue this appeal.
Defendants contend that the motion Judge erred in denying their motion for leave to file a third-party complaint because R. 4:9-1 requires a liberal interpretation of pleadings and, thus, "the only issue before the [c]court [was] whether the causes of action said to be asserted are cognizable as a matter of law." We cannot disagree with that assertion. Nonetheless, we conclude from our examination of defendants' pleadings and ...