Tennessee Court of Appeals Affirms Severe Spoliation Sanction Against Plaintiff

A recent opinion, Gardner v. R & J Express, LLC, 2018 Tenn. App. LEXIS 248 by the Tennessee Court of Appeals demonstrates that spoliation is not a one-sided affair. Plaintiffs may be subject to sanctions as well as defendants who do not preserve material evidence. Mr. Gardner was an owner/operator pulling a trailer owned by R & J Express. His wife was a passenger in the tractor. The tandem axle on the trailer allegedly became loose, while they were on the highway, causing the tractor-trailer to overturn. The plaintiffs’ tractor was damaged and Ms. Gardner was seriously injured.

The plaintiffs filed suit against R & J alleging that the defendant was negligent in its inspection and maintenance of the trailer, and that it failed to comply with federal motor carrier safety standards. R & J filed an answer denying all allegations of negligence, and then, months later, filed a motion for spoliation sanctions against the plaintiffs, arguing that “Gardner had discarded his tractor by allowing the insurance company to take possession of it, such that he no longer knew of its whereabouts”, and that their “expert needed to inspect the tractor in order to determine whether there existed a mechanical problem that may have caused the accident.”

The plaintiffs’ tractor had been badly damaged in the wreck, and so their insurance company had settled up with them after the wreck, and paid the property damage claims. As typically occurs, when a vehicle is “totaled”, the insurance company took possession of the tractor. At a hearing the trial court determined “that R & J had been “severely prejudiced” in its ability to defend against the Gardners' claims due to the unavailability of the tractor, which the court described as a “key piece of evidence.” The court ordered the plaintiffs to locate and produce the tractor or their complaint would be dismissed. Unfortunately for the plaintiffs the tractor had been dismantled and sold for salvage by their insurance company. The trial court dismissed the complaint with prejudice, even though R & J did not request preservation of the tractor until 242 days after the accident had occurred.

Dismissal of a claim is a very severe sanction. One of the factors the trial apparently considered in imposing such a severe sanction was a spoliation letter plaintiffs’ counsel had sent to the defendants shortly after being retained and only a month after the accident. “[T]heir attorney sent a letter to Defendant informing him of Plaintiffs' intention to file an action and 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.”

The Court of Appeals concluded that “[c]learly, Mr. Garner and his counsel should have known that the tractor was relevant to the foreseeable litigation,” and affirmed dismissal of the complaint.

Gardner highlights an aspect of Tennessee law that differs from common law concerning spoliation. Rule 34A.02 does not require “intent” when it comes to spoliation. At common law, intent was a crucial element of spoliation; however, in Tennessee intent is not required, and instead, a totality of the circumstances analysis is employed. (See Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734 (Tenn. 2015)). Whether the conduct was intentional is only one of the factors to be considered by the court. In fact, Rule 34A.02 specifically addresses this point: “Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.”

The relevant factors to be considered by the trial court can be summarized as follows: (1) culpability; (2) prejudice; (3) whether party knew or should have known the evidence was relevant; and, (4) the least severe sanction available to remedy the prejudice.

Gardner case is a must-read for any attorney attempting to handle cases in Tennessee in involving tractor trailers and other commercial vehicles. Besides just giving the adverse expert an opportunity to inspect the damage to the tractor, the data from the tractor’s “black box” or event data recorder (EDR) should have been downloaded and preserved. It would have provided crucial information as to the speed of the unit at the time of the accident, including when and whether the brakes were applied, and whether the tractor was on cruise control. This case emphasizes the importance of hiring experts and investigators on behalf of the plaintiff very quickly, and preserving all evidence, including data from the Plaintiff’s vehicle.

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