United States District Court, D. New Jersey, Camden Vicinage
REPORT AND RECOMMENDATION [DOC. NO. 225]
SCHNEIDER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on referral of the “Motion
to Dismiss Plaintiff[s'] Complaint Based on Spoliation of
Evidence” (“motion”) [Doc. No. 225] filed
by defendant Uintah Fastener & Supply, LLC
(“Uintah”). The Court received the opposition
filed by plaintiffs [Doc. No. 228] and Uintah's reply
[Doc. No. 232], as well as the support from defendants Petzl
America, Inc. and Petzl Company (collectively,
“Petzl”), Thompson Manufacturing, Inc.
(“TMI”), Quality Plating, and Brighton-Best, Inc.
[Doc. Nos. 230, 231, 233, 236]. The Court recently held oral
argument. This Report and Recommendation is issued
pursuant to 28 U.S.C. § 636(b)(1).
motion presents the issue of whether spoliation sanctions
should be imposed against plaintiffs. Briefly, plaintiff
Nicholas Kuhar alleges the fall that injured him was caused
by a defective broken bolt defendants sold or distributed.
During the course of the case plaintiffs arranged for both
halves of the bolt to be examined by their expert/consultant
without defendants being present. Before the bolt was
examined under a scanning electron microscope
(“SEM”), a cleaner was applied to remove
oxidation (rust) and possible debris present on the bolt.
Defendants allege this was critical evidence that was
spoliated and, therefore, plaintiffs' case should be
dismissed. For the reasons to be discussed, the Court finds
defendants cannot satisfy their burden of showing relevant
evidence was lost or destroyed in bad faith. Since defendants
must show plaintiffs acted in bad faith to make out an
actionable spoliation claim, the Court respectfully
recommends that Unitah's motion be denied. The Court
makes the following findings in support of this
Nicholas Kuhar and Julie Kuhar (collectively,
“plaintiffs”) commenced this action on December
23, 2015 in the Superior Court of New Jersey, Salem County,
asserting various claims pursuant to state law against
defendants Petzl and Bailey's Corporation
(“Bailey's”), including allegations of
product defects pursuant to the New Jersey Products Liability
Act (“NJPLA”), N.J.S.A. 2A:58C-1-11. See
Compl. [Doc. No. 1-1]. The case was removed to federal court
on January 22, 2016. The product underlying the Complaint, a
“wire core flip-line safety harness” (hereinafter
“safety harness” or “harness”),
includes the evidence at issue in this motion - namely, two
halves of a broken bolt with a nut attached to the larger
half (hereinafter “bolt”). The broken bolt was a
component part of the safety harness. See Second Am.
Compl. [Doc. No. 102]; Mot. [Doc. No. 225]. Uintah, joined by
four co-defendants, alleges relevant evidence was spoliated
when one or both halves of the bolt was cleaned on May 10,
2017 during plaintiffs' counsel's undisclosed
forensic examination. Unitah seeks the dismissal of
plaintiffs' complaint as a sanction. See Mot.,
Br. at 1-3 [Doc. No. 225-1].
claim arises out of an incident which took place on December
24, 2013 in Bridgeton, New Jersey, while Nicholas Kuhar was
working on the roof of a barn. TMI Resp., Ex. M at 5 [Doc. No.
231-15]. Plaintiff contends he was “utilizing
[defendants'] safety harness to clean gutters” when
the “bolt attached to the carabiner of [his] safety
harness snapped, ” causing him to fall thirty-seven
(37) feet off the roof and “strike crushed
concrete.” Second Am. Compl. at ¶ 4. Plaintiff
sustained serious injuries from the fall,  which is now
alleged to have been caused by design and manufacturing
defects associated with the safety harness and its component
parts, including the bolt. Id. at ¶¶ 1-11;
see Mot., Ex. G at 8-9 [Doc. No. 225-9].
the incident occurred on December 24, 2013, the broken
“bolt pieces were not discovered for some months
after[wards].” Mot., Br. at 1. Plaintiff's son,
Michael Kuhar, contends that in or around March 2014, he
discovered the bolt in two pieces near the area where
plaintiff fell. See Kuhar Dep. 49:22-50:18 [Doc. No.
225-7]. Thus, from December of 2013 until March of 2014,
“the bolt pieces were left out in the elements.”
See Mot., Br. at 1-2. Plaintiff proceeded to store
the bolt pieces in a kitchen drawer until turning them over
to his attorneys in or around December 2015. Pl. Dep.
238:15-39:12 [Doc. No. 225-6].
the course of discovery counsel for Petzl requested in
writing that plaintiffs preserve evidence and inform them of
any planned inspections of the harness or its component
parts. See Petzl Supp., Ex. A [Doc. No. 230-3].
Subsequently, in an email dated March 16, 2017, Petzl also
requested to inspect plaintiffs' “physical evidence
and property.” See Doc. No. 231-17.
Plaintiffs' counsel responded the next day to inform
Petzl their “client ha[d] consented to inspection of
the property on [March 21, 2017], ” adding that
plaintiffs could also “accommodate [Petzl's]
inspection of the [harness and its] components” the
same day. Id. Ultimately, the “harness,
D-Ring, wire flipline, MicroGrab and [broken] bolt”
were inspected and photographed in the office of
plaintiffs' counsel by John Kurth, President of Petzl
America, on March 21, 2017. TMI Resp. at 11-12.
one month later, plaintiffs' counsel was in contact with
their then-expert/consultant, Dr. Robert Iezzi. At his May
23, 2018 deposition, Dr. Iezzi testified he recommended
having a metallographic analysis performed on the bolt at
Micron, a lab he was familiar with from previous work,
because he believed an examination of the two fracture
surfaces would help “to attempt to determine why the
bolt broke.” Iezzi Dep. 110:19-111:10 [Doc. No.
231-13]. Dr. Iezzi testified he sought plaintiffs'
counsel's authorization to conduct the examination and
later received their approval. Dr. Iezzi added he did not
observe or handle the broken bolt prior to the inspection
because plaintiffs' counsel “did not want to let
the bolt out of their possession.” Id.
10, 2017, Dr. Iezzi met with plaintiffs' counsel at
Micron for the planned examination of the bolt, in the
absence of defense counsel. See id. 56:12-22.
According to Dr. Iezzi, everyone that was involved was
“being very careful, per instruction from
[plaintiffs' counsel], not to do any destructive testing,
not to alter the bolt in any way, shape or form.”
Id. 57:17-24. Dr. Iezzi asserted the advantage of
SEM imaging used to examine the bolt at Micron “is that
you do not have to alter the sample in any way.”
Id. However, with plaintiffs' counsel's
approval, the “fracture face” of one of the bolt
pieces “was cleaned with Branson cleaner  to remove
the oxide prior to SEM imaging.” Mot., Ex. B [Doc. No.
225-4]; see Iezzi Dep. 113:12-19.
23, 2017, Uintah requested an inspection of plaintiffs'
physical evidence in an email sent to plaintiffs'
counsel. See Doc. No. 231-24. Plaintiffs agreed to
bring the safety harness and related parts to the May 24,
2017 deposition of a “corporate designee of
Petzl” scheduled for the following day. Id.
Uintah then “arranged for [their] expert, Dr. Pope, to
perform a visual (non-destructive) inspection of the
items.” Id. Defendants contend plaintiffs'
counsel did not inform them of the May 10, 2017 examination
before, during, or after the expert's visual inspection.
See TMI Resp. at 15.
September 27, 2017 letter sent to plaintiffs' counsel,
Petzl reiterated plaintiffs' duty to preserve “the
bolt and that no testing of the bolt be performed without
notice to all counsel.” See Doc. No. 230-4.
Plaintiffs objected to the request, stating: “[w]e will
keep the parts here[, ] I told you that in the beginning[.]
You have no right to control how I prepare my case.”
See Doc. No. 230-5. Defendants, still unaware of the
May 10, 2017 Micron examination, maintain that this and prior
letters expressed the understanding plaintiffs would not
perform any testing or take any actions which would change
the condition of the bolt. Id. Plaintiffs do not
dispute they agreed not to do destructive testing on the bolt
without first informing defendants.
plaintiffs' objection to Petzl's September 27, 2017
request, on October 5, 2017, Petzl filed a motion for
protective order which sought to prohibit plaintiffs from
performing any testing, destructive or otherwise, without
defendants' notice or mutual consent, and to compel
plaintiffs to produce reports and documents related to any
prior testing. See Doc. No. 123. Plaintiffs filed
their opposition on November 8, 2017, disputing Petzl's
“broad allegations of potential harm” as
unsubstantiated and asserting that plaintiffs “ha[d]
made clear since the beginning of [the] litigation that
[they] oppose[d] destructive testing.” See
Doc. No. 133. Plaintiffs further contended that Petzl offered
no support for defendants' asserted “right to
review and evaluate any non-destructive testing”
performed by plaintiffs. Id.
same time, the parties were also working towards an
“agreed-upon protocol and mutually convenient date for
the joint inspection and testing” of the bolt.
See TMI Resp. at 15-16. The joint inspection was
eventually scheduled for November 13, 2017, at which
plaintiffs' new expert/consultant, Dr. Richard Lynch,
allegedly “made an off-hand comment overheard by one of
the defense experts indicating the appearance of the fracture
surface under the SEM looked identical to its appearance at
the prior inspection.” Id. at 18. Defendants
contend this was the first notice they received of the May
10, 2017 testing. Id.
response to plaintiffs' expert's “inadvertent
disclosure, ” Petzl supplemented its pending motion for
protective order to request disclosure of information
regarding the May 10, 2017 testing. Id.;
see Doc. No. 143. At oral argument on November 29,
2017, Petzl informed the Court it considered the requested
“order directing [plaintiffs] not to conduct
destructive testing unless on notice” as uncontested,
but Petzl still asked the Court to order plaintiffs to
disclose details regarding “any prior inspections of
any nature whatsoever.” Tr. 5:9-18, Nov. 29, 2017 [Doc.
No. 167]. Plaintiffs objected to the document request,
believing it sought “classic work product . . .
protected under privilege.” See Id. 9:21-25.
Upon the Court noting that no party provided a definition for
what constituted “destructive testing, ” Petzl
contended no legal definition existed, but also submitted
that “cleaning the bolt [would] certainly” be
deemed destructive by the defendants. Id. 9:6-13. At
the end of the argument, the Court denied Petzl's motion
on the ground that it sought attorney work product material.
However, with plaintiffs' consent, the Court Ordered
plaintiffs “not [to] conduct destructive testing on the
bolt  without giving reasonable notice to
defendants.” Id. 13:3-15; Order, Nov. 30, 2017
[Doc. No. 147].
defendants concede the bolt has broken into two, however, the
authenticity of the bolt, and the cause and timing of its
fracture, are disputed. Defendants posit that the bolt
produced by plaintiffs may not be the bolt in use when
plaintiff fell on December 24, 2013. Defendants argue that
the cleaning of the bolt on May 10, 2017 spoliated evidence
which may be relevant to their analysis of when and how the
bolt broke. Uintah moves for the dismissal of plaintiffs'
complaint, asserting “the necessary evidence [required]
to determine the cause of the bolt fracture has been
irrevocably destroyed and the defense experts' ability to
complete their analysis has been frustrated.” Mot., Br.
at 1. More specifically, Uintah alleges that on May 10, 2017
plaintiffs “spoliated crucial evidence by introducing a
corrosive cleaning liquid - Branson Cleaner - to the surface
of the broken bolt piece.” Id. at 3. Unitah
asserts that before it was “inspected by the defense
experts, [plaintiffs'] counsel and their first expert
conducted a secret[ive] destructive testing of the bolt,
” denying them the opportunity to observe “the
fracture surfaces in [their] unaltered condition.”
Id. at 1. Uintah also alleges “[n]o
photographs of the bolt pieces were taken prior to the
cleaning, ” which deprived defendants' experts of
the “ability to view the level of oxidization”
before its removal. Id. at 2-3. Uintah further
contends the “Branson Cleaner did not just remove the
oxidation and materials on the fracture surface, but [that]
it also obliterated the fracture surface due to its corrosive
nature.” Id. at 4. Defendants argue plaintiffs
intentionally destroyed evidence in an effort to conceal or
coverup a potential fraud or planting of evidence.
See Oral Arg. Tr. 22:19-23:6, Sept. 21, 2018 [Doc.
oppose Unitah's motion, contending “any pertinent
evidence still exists [which] was and is freely available to
the defendants.” Pls.' Opp. at 3 [Doc. No. 228].
Plaintiffs dispute the claim that no photographs were taken
pre-cleaning, alleging that “over 300 photographs were
taken by defendants.” Id. at 2. Plaintiffs
also dispute Uintah's claim that it “only had
access to a cleaned fracture surface, as one of the fracture
surfaces remained entirely unaltered.” Id. at
5. Plaintiffs contend only one-half, not both halves of the
bolt, was cleaned on May 10, 2017. In addition, plaintiffs
contend it is common practice in labs to clean the surface of
a metal in order to actually examine it. See Iezzi
Dep. 123:16-18. Plaintiffs point to their expert's belief
that applying Branson cleaner did not alter evidence or
affect test results. See id. 123:24-124:8.
Plaintiffs further contend they had “no duty to
preserve the oxidation on one half of the fracture surface,
as its removal presented no foreseeability of harm or
prejudice to the defendants.” Pls.' Opp. at 6.
Accordingly, plaintiffs argue defendants are “unable to
identify any prejudice” they suffered. Id. at
5. In sum, plaintiffs contest defendants'
characterization of removing rust or oxidation as spoliation,
and maintain that no evidence was destroyed. Id. at
seek dismissal of plaintiffs' complaint based on the
alleged spoliation of evidence, or alternatively, imposition
of a less severe sanction as determined at the Court's
discretion. The alleged spoliation took place when the bolt
was “cleaned” with Branson cleaner on May 10,
2017. Defendants' argument entails a two-part inquiry.
The first question to be addressed is whether actionable
spoliation occurred when the bolt was cleaned. If the answer
is yes, the Court must decide the appropriate ...