Not All Spoliation Spoils A Claim

From the Desk of Brian Schiewe:

Discovery sanctions have become a hot topic in Washington.  Recently, we have seen more instances of trial courts imposing discovery violations in the form of default judgments. Just a couple months ago, I published a legal alert about an instance where a default judgment was entered as a discovery sanction against a defendant for spoliation of evidence. In this recent Washington Court of Appeals opinion, the Court reversed the trial court’s decision to strike Plaintiff’s complaint where plaintiffs allegedly intentionally destroyed tissue samples in a mesothelioma case. 

Claims Pointer:

Discovery violations in Washington are governed by the Burnet factors, named after the Washington Supreme Court Case Burnet v. Spokane Ambulance. To impose the harshest sanctions for discovery violations, the trial court must analyze all three of the Burnet factors, including: (1) whether the violation was willful or deliberate; (2) whether the violation substantially prejudices the opposing party’s ability to prepare for trial, and (3) whether lesser sanctions would suffice. Here, the Court held that the conduct Plaintiff engaged in did not warrant striking Plaintiff’s complaint because the defendant did not establish the second or third Burnet Factor.

Carroll v. Akebono Brake Corp., 82245-4-I, 2022 WL 3025576 (Wash. Ct. App. Aug. 1, 2022)

Facts:

In this matter, the Court of Appeals was asked to review the trial court’s order granting Nissan Motor Company’s motion to strike Plaintiff’s complaint.  On October 19, 2015, Plaintiff Carroll’s husband was diagnosed with mesothelioma.  Her husband died on April 18, 2018, when he was 82 years old. On the day of his death, Carroll signed a form that authorized a company to conduct an autopsy of her husband. The form stated that the autopsy was for “Disease Litigation” and was paid for by Erik Karst, Carroll’s attorney. The form also stated that any tissue samples taken would be destroyed after 6 months. A report of the autopsy, dated June 25, 2016, stated that Carroll’s husband’s cause of death was “malignant pleural mesothelioma with metastasis.” Carroll’s daughter sent the autopsy report to Karst in an email on July 19, 2016.

Carroll, as the personal representative of her husband’s estate, filed a complaint against Nissan Motor Company Ltd. Carroll alleged claims based on product liability and negligence. Carroll asserted that her husband was exposed to asbestos while working as a service and parts manager at several Nissan dealerships from 1971 to 1989.  

Carroll’s attorney submitted answers to pattern interrogatories. Interrogatory 21 requested that Carroll attach a copy of any autopsy report, Carroll answered “not applicable.”

Subsequently, Nissan’s counsel, sent an email to Owens requesting Plaintiff to preserve all tissue relevant to Plaintiff’s husband’s alleged mesothelioma and to give notice before any destructive testing took place.

During her deposition, Carroll was asked whether an autopsy had been performed, and Carroll answered “Yes”, but then stated “I don’t know. I thought they did. Maybe they didn’t.”

Nissan filed a motion to strike Carroll’s complaint as a sanction for various alleged discovery violations, including the willful destruction of tissue samples from the autopsy. The trial court granted Nissan’s motion. Carroll appealed.

Law:

CR 37 (b)(2), in pertinent part, allows a court to strike out pleadings, stay proceedings until an order is obeyed, or dismiss an action or proceeding, or render a judgment by default against the disobedient party for failing to obey discovery orders. The sanction of dismissal is the most severe sanction that a court may apply.

The law favors resolution of cases on their merits. Thus, when a court is rendering a discovery sanction it must impose the least severe sanction that is adequate to serve the purpose of the sanction. Burnet v. Spokane Ambulance, 131 Wn.2d 495-96, 933 P.2d 1036 (1997). The purpose of discovery sanctions is to deter, punish, compensate, educate, and ensure that the wrongdoer does not profit from the wrong. Id.

If a court imposes one of the harsher sanctions under CR 37(b) then the record must show (1) one party willfully or deliberately violated the discovery rules, (2) the opposing party was substantially prejudiced in its ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would have sufficed. Id at 494.

Analysis:

On appeal, Carroll contended that the trial court erred in granting Nissan’s motion to strike the complaint because none of her conduct met all the factors required to justify striking her complaint. The Court’s analysis was twofold: (1) the Court had to determine what conduct had occurred that amounted to discovery violations, and (2) whether those violations allowed for the imposition of the harshest available sanctions.

The Court first addressed the issue of whether failing to preserve the tissues from the autopsy was considered spoliation. The Court noted that the autopsy was performed 2 years before Carroll had filed the Complaint.  Thus, the Court held that Carroll had no duty to preserve tissue samples before litigation even commenced. Even if Carroll was deemed negligent by not preserving the samples, negligent failure to preserve evidence does not amount to spoliation. The Court further stated, that even if this conduct was determined to be spoliation, the sanction imposed would be far less severe than the sanction imposed by the trial court. Carroll had proposed a lesser sanction in lieu of dismissal, but the trial court did not consider this possibility. The Court found that jury instruction proposed by Carroll would have been a more than a sufficient remedy for the lack of tissue samples being retained.

The Court reiterated that it was not stating that dismissal is never warranted when a party engages in spoliation. The Court cited to the recent case J.K. v.  Bellevue School Dist. No. 405, 20 Wn. App. 2d 291, 500 P.3d 138 (2021) which I discussed at length in “Spoiler Alert: Washington Court of Appeals Rules Spoliation Combined With Discovery Violations Are Sanctionable by Default Judgment.” The Court compared and contrasted the two cases and found that in J.K, the defendant had a statutory duty to preserve the evidence in question and Defendant failed to preserve evidence despite receiving multiple requests to do so before the evidence was destroyed. Further, the trial court in J.K. considered a lesser sanction, but concluded that it was not sufficient in meeting the purpose of discovery sanctions. The Court noted that none of those facts are true in the underlying case. Carroll did not have a statutory duty to preserve the tissue samples, Carroll was not asked to preserve the samples before they were destroyed, and the trial court did not explicitly consider the proposed jury instruction as a lesser sanction.

Next, the Court analyzed whether Carroll’s deposition testimony was considered a discovery violation. The Court found that Carroll did not willfully provide evasive testimony as the uncertainty reflected in their deposition was supported by the record. While Carroll signed an authorization for an autopsy, the record did not show that Carroll knew an autopsy was being performed. Again, the Court stated that even if it were to conclude that Carroll and her son provided evasive testimony, the harshest sanction would still not be appropriate. Nissan did not establish that it was substantially prejudiced in its ability to prepare for trial.

Big Picture:

Entering a default judgment as a discovery violation is seldomly appropriate. Here, the Court reminds us that negligently destroying critical evidence does not warrant the most severe sanction. But when a party has a statutory duty to preserve evidence, and the evidence has been requested, a default judgment may be warranted. Not only does the conduct have to be willful, but it needs to have substantially impacted the other party’s ability to prepare for trial and the trial court must explicitly consider a lesser sanction.