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Kuhar v. Petzl Co.

United States District Court, D. New Jersey, Camden Vicinage

November 16, 2018

NICHOLAS KUHAR, et al., Plaintiffs,
PETZL CO., et al. Defendants.



         This 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.[1] This Report and Recommendation is issued pursuant to 28 U.S.C. § 636(b)(1).

         Unitah's 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 Recommendation.


         Plaintiffs 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].

         Plaintiffs' 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.[2] 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, [3] 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].

         Although 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].

         During 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.

         Approximately 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. 111:20-23.

         On May 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.

         On May 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.

         In a 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.

         Following 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.

         At the 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.

         In 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].

         All 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. No. 247].[4]

         Plaintiffs 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.”[5] 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 6.


         Defendants 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 ...

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