United States District Court, D. Rhode Island
AMICA MUTUAL INSURANCE COMPANY a/s/o NADINE PODGURSKI Plaintiff,
BRASSCRAFT MANUFACTURING, COMPANY Defendant.
J. McConnell, Jr. United States District Judge
above captioned case is a subrogation action. Amica has sued
BrassCraft for reimbursement of a claim Amica paid its
insured, alleging that BrassCraft's faulty product caused
the damages to the insured's home. The problem here is
that Amica no longer has the BrassCraft product; Amica lost
it before BrassCraft had the opportunity to examine the
allegedly failed product. Sophisticated parties who sue-or
who expect to sue in the future-are expected to retain
relevant evidence. Failure to preserve crucial evidence
subjects the party to a variety of sanctions including
exclusion of the evidence and the expert's testimony or
report based on it, a jury instruction describing the adverse
inference a juror can draw from the absence of that evidence,
or, in extreme cases, dismissal of the case. Brasscraft seeks
dismissal here, arguing that it is unfairly prejudiced by the
fact that it faces claims involving one of its products that
Amica, through its negligence, failed to turn over and permit
BrassCraft to examine. There is no dispute that Amica
spoliated the product; the only issue before the Court is
what level of sanction the Court should impose.
Mutual Insurance Company paid its insured on her insurance
policy after a flood damaged her home in West Warwick, Rhode
Island in August 2013. Amica alleges that a BrassCraft
flexible water connector disconnected from a toilet fitting
in the second floor bathroom, releasing water into the
insured's home. Amica's experts, Thomas Zarek and
John Certruse, examined the connector and concluded in a
September 2013 report that the connector's coupling nut
failed because it was under "loading stress" from
bending, and that its material contained "void
spaces" that "may have reduced the strength under
loading on the nut." The experts concluded, "It is
likely that the cause of the failure is a combination of the
material deficiencies in the plastics, combined with excess
stress from the installation conditions." They
recommended further testing of the nut.
years later in 2015, Amica sent a settlement demand to
BrassCraft. BrassCraft responded by asking for proof that the
connector was the cause of the damage. Amica did not respond.
Instead, a year later, Amica sent another demand with a
series of photographs of the connector. BrassCraft again
asked for the connector and any expert reports Amica had.
Amica responded that it would not ship the connector and did
not have an expert report. Both of these statements now
appear to be less than truthful. In July of 2016, Amica
admitted that it did not have the connector, which it appears
to have lost or destroyed.
denied Amica's claim for subrogation so Amica filed this
complaint in state court in early 2017; BrassCraft removed it
here. In April 2017, Amica's experts, Messrs. Zarek and
Certruse, issued a joint affidavit opining, allegedly based
solely on their review of the series of photographs, that
BrassCraffc defectively manufactured the connector. They did
not mention that they had previously rendered the same
opinion after examining the actual connector.
now moves to dismiss the complaint, arguing that because
Amica spoliated the product it claims was defective before it
had a chance to examine it, BrassCraft is prejudiced such
that it cannot defend against Amica's subrogation claim.
Amica admits that it lost or misplaced the connector, but
counters that dismissal is a drastic remedy for spoliation
where there is no evidence of malicious destruction,
especially since BrassCraft is not prejudiced because its
expert can use the pictures and/or get an exemplar connector
to examine. Because the Court finds that BrassCraft is
left with no way adequately to defend itself against
Amica's claims, even though Amica's actions were not
malicious, BrassCraft's motion is GRANTED and Amica's
case is DISMISSED.
outset, Amica raises a procedural objection to
BrassCraft's motion, arguing that BrassCraft cannot rely
on Rule 37 to advocate dismissal for spoliation. The Court
Court's authority to impose the sanction of dismissal
derives from multiple sources in the Federal Rules of Civil
Procedure. Amica's failure to produce the connector,
evidence that is required to be disclosed to BrassCraft under
Rule 26(a)(1), violates Rule 37(c)(1), warranting any of the
potential sanctions provided in Rule 37(b)(2)(A)(i)-(vi),
which includes dismissal. See Fed. R. Civ. P.
26(a)(1)(A)(ii); Fed.R.Civ.P. 37(c)(1)(C); Fed.R.Civ.P.
37(b)(2)(A)(v). A party's failure to produce a product in
response to an opposing party's request may violate Rule
37(d), which grants a district court "broad power"
to impose sanctions on a party that resists discovery.
See Wolters Kluwer Fin. Servs., Inc. v. Scivantage,
564 F.3d 110, 118 (2d Cir. 2009); see also E. W.
Int'l Corp. v. Welch Foods, Inc., 937 F.2d 11, 18 n.
7 (1st Cir. 1991) (discussing the availability of sanctions
under Rule 37(d) where the written response given is so
lacking as to be no response at all). Ultimately, the
determination of the appropriate sanction for spoliation is
within the Court's discretion, for it to assess based on
the facts of the case. See Fujitsu Ltd. v. Fed. Exp.
Corp., 247 F.3d 423, 436 (2d Cir. 2001). The Court finds
no procedural hurdle to applying the rule under which
BrassCraft chose to bring its motion.
and the Sanction Therefor
spoliated evidence in this case; it had notice of the claim
or the potential for the claim, the evidence is relevant to
the claim, and the evidence was lost and/or destroyed. The
only real debate here is over what the Court should do about
Amica's loss of crucial evidence.
a district court has broad discretion in choosing an
appropriate sanction for spoliation, 'the applicable
sanction should be molded to serve the prophylactic,
punitive, and remedial rationales underlying the spoliation
doctrine."' Silvestri v. General Motors
Corp.,271 F.3d 583, 590 (4th Cir. 2001) (quoting
West v. Goodyear Tire & Rubber Co., 167 F.3d
776, 779 (2d Cir. 1999)). The Court considers a few factors
in determining the appropriate sanction for Amica's
spoliation of evidence: (1) whether the defendant was
prejudiced because of the loss of the evidence, " (2)
whether the prejudice can be cured; (3) the practical
importance of the evidence; (4) whether the plaintiff was in
good faith or bad faith; and (5) the potential for abuse if
the evidence is not excluded. Allstate Ins. Co. v.
Creative Env't Corp., Civ. No. 92-0467T, 1994 WL
499760, (D. R.I. Apr. 1, 1994) (relying on a five-factor test
set forth in Lewis v. Darce Towing Co., Inc., 94
F.R.D. 262, 266-267 (W.D. La. 1982)). "Fairness to the
opposing party D plays ...