In a blog post here in November of 2015, we covered the Tennessee Supreme Court’s decision in Tatham v. Bridgestone Americas Holding, Inc. That decision made sanctions more readily available by abolishing the requirement that spoliation of evidence be intentional.
On May 7, 2018, the Tennessee Court of Appeals expanded on that decision in Gardner, et. al. v. R& J Express, LLC, No. E2017-00823-COA-R3-CV, available here.
On May 29, 2015, John Gardner, one of the plaintiffs, was driving his own tractor, pulling a trailer owned by R&J Express, when an accident occurred, injuring him and his wife, a passenger, and rendering his tractor a total loss. Just 18 days later, he retained counsel. In November of 2015, he filed suit against R&J. The suit alleged R&J was negligent in inspecting and maintaining its trailer, and that the accident happened because the trailer’s tandem axle suddenly came loose.
R&J denied any negligence and alleged Mr. Gardner’s negligent driving or a failure of the tractor caused the accident, assigning fault to Mr. Gardner. After conducting some discovery, R&J filed a motion for sanctions for spoliation. Following the accident, Mr. Gardner had signed his tractor over to his insurance company, and it was quickly scrapped. There was no allegation that Mr. Gardner had intended to destroy evidence – he just participated in the normal insurance claims process. Citing Tatham¸ the trial court granted R&J’s motion, and held the only way to remedy the spoliation was to dismiss the suit.
Mr. Gardner argued that R&J did not send a preservation letter until approximately eight months after the accident. However, the Court noted plaintiffs were aware of their duty to preserve evidence:
[A]s of June 17, 2015, when Plaintiffs retained legal counsel, they intended to file a lawsuit for damages. On June 24, 2015, their attorney sent a letter to Defendant informing him of…Defendant’s responsibility to preserve the relevant evidence. After sending the preservation letter to the Defendant, Plaintiffs signed over the title to the tractor and the tractor was destroyed. Apparently, having sent a preservation letter to Defendant, Plaintiff knew or should have known that the tractor was crucial evidence needing to be examined to determine the cause of the wreck.
The Court of Appeals noted plaintiffs clearly understood the importance of physical evidence. The noting that the very first item listed on plaintiffs’ preservation letter was the trailer, their key piece of evidence.
The plaintiffs next argued the tractor was not important evidence, but the Court dealt with that argument swiftly:
Plaintiffs argue the evidence has “never indicted the tractor at all as the proximate cause of the accident.” Therein lies the rub. The tractor could not be identified as the cause of the accident because it has always been unavailable to be inspected…Allowing [defense expert] Dr. Anderson to testify does not cure the problem. Clearly, Dr. Anderson would have to admit…that he cannot perform an adequate or thorough inspection without the tractor.
The Court noted plaintiffs had at first filed a motion to exclude defense expert Dr. Anderson’s testimony on the basis that he had not inspected the tractor. Although the plaintiffs ultimately withdrew this motion, he would still be subject to cross-examination on this issue and would not be credible.
Finally, the court concluded that the prejudice did not impact both parties equally. Plaintiffs had always had access to the trailer, the necessary evidence to support their theory of the case. R&J had never had access to their key piece of evidence, the tractor. This is the key factor that differentiates this case from Tatham. In Tatham, the Tennessee Supreme Court ultimately held that Bridgestone was not entitled to dismissal because neither party had the opportunity to inspect the tire, the key piece of evidence in the case. In this case, one party was uniquely prejudiced, warranting dismissal. As the Court of Appeals explained, “Defendant’s theory of the case is impossible to prove without the inspection of the tractor. Plaintiffs do not need to inspect the tractor to prove their case.”
This case underscores the heightened importance of preservation of evidence in Tennessee following Tatham. In the event of destruction or disposal of evidence, it is no longer enough to point out the conduct was unintentional. Essential evidence must be identified early and preserved.