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Durst v. Fedex Express

June 2, 2006


The opinion of the court was delivered by: Simandle, District Judge


This matter comes before the Court upon Plaintiff James Durst's ("Plaintiff") motion in limine seeking an adverse inference jury instruction at trial related to certain evidence that Plaintiff alleges Defendant FedEx Express ("FedEx") destroyed. For the reasons expressed below, Plaintiff's motion will be denied.

I. Background

From November 14, 2002 until May 17, 2003, Plaintiff was employed as a part-time courier at FedEx's Princeton, New Jersey distribution station. Plaintiff worked the afternoon shift four days each week and the morning shift on Saturdays. As part of his daily courier duties, Plaintiff, like all FedEx couriers, conducted regular vehicle inspections. During the inspections, Plaintiff was to inspect items including the vehicle's headlights, emergency four-way flashers, exterior mirrors, tires, fluid levels, belts and hoses, doors and seat belts, check for any "play" in the steering wheel and test the brakes of the vehicle. Each FedEx courier was to perform pre-trip and post-trip inspections every day and report the results on a Vehicle Inspection Report ("VIR").

Safety and maintenance issues noted by couriers on VIRs are provided to FedEx's mechanics for redress. Plaintiff claims, however, that not all of the safety issues highlighted in his VIRs were addressed by FedEx mechanics. FedEx claims that if a VIR identified a problem, the vehicle would not go on the road again until a FedEx mechanic took necessary corrective action. FedEx also states that FedEx mechanics conduct regular preventative maintenance on vehicles every four months and perform random audits on all trucks in FedEx's fleet.

Plaintiff contends that he experienced numerous safety issues with vehicles he was required to drive for FedEx including "hazardous mirrors" that he could not see out of, violent shaking of the truck's steering wheel when the truck reached certain speeds, bald tires (that he attributed to nearly causing an accident), smoke "pouring out of the heater vents" (preventing him from seeing the road), and multiple vehicle breakdowns. The parties disagree about whether Plaintiff properly made management at FedEx aware of his safety concerns.

On Saturday, May 17, 2003, Plaintiff was unable to insert the key into the ignition of his truck after making a stop on his route. FedEx sent a replacement truck out to Plaintiff. After moving his remaining undelivered packages to the replacement truck, Plaintiff returned to FedEx's station, deciding not to finish his route. At the station, Plaintiff made preparations to leave and placed three remaining undelivered packages in the area designated for undelivered packages and told Saturday manager Gary Brown that he would not complete his route. (Id.) In response, Brown told Plaintiff, "I take it if you're not delivering these packages, then you're quitting." (Id. at 156.) Plaintiff responded that he was not quitting and would not deliver the remaining packages because of the unaddressed safety concerns and the prior vehicle breakdowns. Upon insistence from Brown, Plaintiff provided Brown with a letter stating that he refused to operate one of the unsafe FedEx vehicles due to "serious mechanical and safety issues [and that] [n]othing has ever been done to rectify these serious safety issues."

On the morning of Monday, May 19 --- a few hours before Plaintiff's next scheduled shift --- Plaintiff received a "termination letter" from FedEx. After receiving the letter, Plaintiff tried unsuccessfully to resolve matters with representatives of FedEx's human resources. Failing to resolve matters, Plaintiff did not return to work.

This Court denied FedEx's motion for summary judgment on December 22, 2005. On May 3, 2006, Plaintiff filed this motion in limine seeking an adverse inference charge to be given to the jury that evidence that FedEx destroyed or otherwise failed to maintain would have been favorable to Plaintiff and unfavorable to Defendant. [Docket Item No. 34.] Defendant filed opposition on May 10, 2006 and this Court held oral argument on the motion on May 17, 2006. [Docket Item Nos. 36 and 37.] At oral argument, the Court requested that the parties make additional submissions which were made on May 19, 2006 (by FedEx) and on May 22, 2006 (by Plaintiff). [Docket Item Nos. 38 and 44.]

II. Legal Standard for a Spoliation Inference

Three remedies are available for the wrong known as evidence spoliation --- where relevant evidence has been lost, hidden or destroyed. First, the aggrieved party may seek a so-called spoliation inference which allows a jury to presume that the evidence the spoliator destroyed or concealed would have been unfavorable to him or her. See Scott v. IBM Corp., 196 F.R.D. 233, 247 (D.N.J. 2000) (citing Cedars Sinai Med. Ctr. v. Superior Court, 954 P.2d 511 (Cal. 1998)); see also Costello v. City of Brigatine, 2001 U.S. Dist. LEXIS 8687 at *75. (D.N.J. 2001). Alternatively, evidence of spoliation can be a basis for discovery sanctions. See id. Third, the aggrieved party may bring a separate tort against the spoliator. See Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001). A party's access to the above-described remedies depends in large part on when the destruction or concealment of evidence is revealed. See Costello, 2001 U.S. Dist. at *76.

Because Plaintiff appears to be seeking an "adverse inference charge to be given to the jury," this Court will only address whether this Court should grant a spoliation inference. (Pl.'s Br. at 1.) As such, the Court's inquiry must focus on whether these circumstances of spoliation, discovered in advance of trial, should give rise to a jury instruction regarding the spoliation inference. Such an instruction permits an inference that the destroyed evidence would have been unfavorable to the offending party's position. See Scott, 196 F.R.D. at 248 (citing Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994)). "When the contents of a document are relevant to an issue in the case, the spoliation inference is nothing more than the common sense observation that a party who hides relevant evidence until the eve of trial did so out of a well-founded fear that the contents would harm him." Costello, 2001 U.S. Dist. at *76-77 (citing Scott, 196 F.R.D. at 248); see also Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995).

A spoliation inference is only appropriate if the Plaintiff has demonstrated four essential factors: (1) that the "evidence in question [is] under the adverse party's control;" (2) "that there has been an actual suppression of this evidence, i.e., that [the evidence at issue] was intentionally untimely disclosed;" (3) that "the untimely disclosed evidence was relevant" to the plaintiff's case; and (4) "that it was reasonably foreseeable that [the spoliated evidence] would later be discoverable."*fn1

Costello, 2001 U.S. Dist. at *76-79 (citing Scott, 196 ...

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