Herzfeld & Rubin, P.C.- Publications

Products Liability *Destructive Testing and the Federal 'Mirchandani' Case* By Michael Hoenig - New York Law Journal - August 14, 2006	Print article

Typically, in products liability litigation, the product involved in the accident can be an eloquent "witness" as to what happened.

The product tells trained eyes much about what happened in the mishap via "positive" evidence, i.e., the appearance of damage, dents, marks, scratches, and so on, or via "negative" evidence, i.e., the absence of damage or marks that should have been there had a particular event or sequence actually occurred.

So important is this cardinal evidence, our articles have referred to the accident product or components as the "crown jewels," a reference particularly apt in the context of the subject of spoliation of evidence.

Because of the importance of the "crown jewels," litigants should be assiduous in trying to locate and preserve the accident-involved product and in trying to assure the integrity of its custody and condition from the time of the accident. Indeed, a failure to do so can result in spoliation-of-evidence sanctions.

Typically, the adversary will demand to inspect the "crown jewels" as well. The terms and conditions by which the noncustodial litigant can have access to the product or components can be negotiated or made the subject of a court order. The adversary's inspection may even be monitored by the litigant-custodian to make sure the integrity of the "crown jewels" is not violated. Inspectors often don't like such "shadowing" for it may reveal the areas of interest upon which the inspector focuses. Sometimes, these concerns can be alleviated by an agreement or court order that the product's condition not be altered or affected.

Frequently, however, a detailed protocol of exactly what can and cannot be done is needed to assure peace between distrusting adversaries. Even with a court-approved protocol, there have been instances where one party or the other ends up accusing the inspector of tampering with the evidence or changing the condition of the crown jewels. Such acrimony could even lead to heated hearings on the alleged dereliction and sanctions of some kind. An overriding theme is preservation of the evidence.

'Destructive Testing'

From time to time, however, one side (or both) may find it necessary to examine the product, part or component by actually changing its condition in some manner. When the examination goes beyond mere observation and risks or entails changing the condition or appearance of the product, special considerations arise.

The latter scenario is generally referred to as "destructive testing." That term can cover a spectrum of activities ranging from, for example, merely changing the position of the product (e.g., putting a car on a lift or laying it on its side) to, for example, actually cutting or extracting a part or component or a sample in order to subject it to analysis beyond the visual. While the spectrum of activity is broad, the words "destructive testing" often connote some analysis that subjects a portion of the crown jewels to stresses, forces or chemical influences in order to better reveal the condition.

Beyond Observation

By its nature, destructive testing done by or on behalf of one litigant is of keen interest to the other. Because spoliation risks (or other accusations) can come back to haunt the tester, the entire episode needs to be well thought out by counsel and safeguards considered. Sometimes, when adversarial tensions are high or where destructive testing can truly affect the quality and integrity of the remaining crown jewels, it may be helpful to seek court supervision or intervention by moving for a protective order that permits the destructive testing and specifies the conditions of such analysis.

A recent decision by a U.S. Magistrate Judge in the federal district court in Maryland articulates a kind of balancing test the court should consider in ascertaining whether to allow destructive testing and elaborating how the test is applied.

The decision is Mirchandani v. Home Depot, U.S.A., Inc.,¹ issued at the end of May. Plaintiff fell from an allegedly defective, 16-foot, four-section, articulated ladder called a "Multi-matic" and sold by Home Depot. Plaintiff claimed that the ladder collapsed when one or both of the hinges between the first and second sections failed, allegedly due to a defectively designed or manufactured locking bolt. Plaintiff contended that the locking bolts were composed of a zinc alloy that allowed the bolt to become scarred and, eventually, to migrate from the "locked" to "unlocked" position. That migration occurred, said plaintiff, because the bolt was too soft and porous to withstand compressive forces exerted on it during normal use.

Plaintiff wanted to substantiate this theory by conducting metallurgical and hardness tests on one of the two bolts in the relevant hinges. Because such testing would irreversibly alter the bolt and, consequently, the composition of the ladder in issue, the court characterized plaintiff's motion as one for "destructive testing." The court held a hearing, orally granted the motion and then detailed in writing the basis for its ruling.

First, the court identified the discovery rules applicable to the motion for destructive testing. Federal Rule of Civil Procedure 34(a)(1) provides that a party may request production to "inspect and copy, test or sample any tangible things which constitute or contain matters within the scope of Rule 26(b)." Rule 26 says that discovery may be obtained regarding any relevant matter that is not privileged. Courts have recognized that production of "tangible things" for purposes of destructive testing falls under the scope of Rule 34.²

In this case, however, plaintiff had possession of the ladder so he did not need its production from the other side. Accordingly, the court viewed plaintiff's motion "more properly" as a motion for a protective order under Rule 26(c). Had plaintiff simply proceeded to destructively test the product without seeking court guidance, he would have risked consequences of being deemed a spoliator of evidence, such as an adverse inference instruction to the jury or even outright dismissal of the case.³

So, what is the standard by which a court should evaluate requests to perform destructive testing? Here the court looked to a New York Appellate Division precedent, Petruk v. South Ferry Realty Co.,⁴ where a window washer was injured when the bolt on a safety anchor protruding from the building he was working on broke. The building owner, brought in as a third-party defendant, sought to destructively test the bolt by cutting out a section and subjecting the excised section to a strength test plus chemical and microscopic analysis. The installer of the bolt opposed the proposed testing, arguing it would be prejudiced if it could not show the unaltered bolt to the jury. The court in Petruk allowed the testing after zeroing in on the installer's failure to demonstrate how it would be prejudiced. The court further said the pre-testing state of the bolt could be preserved by photography and permitting all parties to inspect the bolt prior to any destructive testing. Case law subsequent to Petruk reaffirmed this approach.⁵

Balancing Test

The court in Mirchandani also noted a "balancing" test elaborated in a Colorado decision, Cameron v. District Court.⁶ This practice is to balance between the "costs of irreversibly altering the object and the benefits of obtaining the evidence sought in the case." The costs of alteration can be reduced by providing for safeguards such as photography of the part in its unaltered state. Also, the court should consider whether alternative nondestructive means of obtaining the evidence are available. The Colorado court ruled in favor of the testing.

Analysis of case law guided the Mirchandani Magistrate Judge to identify four specific inquiries courts should deem relevant to the balancing test. These are:

(1) whether the proposed testing is reasonable, necessary and relevant to proving the movant's case;

(2) whether the nonmovant's ability to present evidence at trial will be hindered, or whether the nonmovant will be prejudiced in some other way;

(3) whether there may be any less prejudicial alternative methods of obtaining the evidence sought; and

(4) whether there are adequate safeguards to minimize prejudice to the non-movant, particularly the non-movant's ability to present evidence at trial.⁷

Application of these factors to plaintiff's test proposal followed next. The suggested hardness and metallurgical tests would involve removing the locking bolts from the hinges; then cleaning and polishing them for the hardness test; then excising a section of the bolt to perform a metallographic examination; followed by reconstructing the ladder using an exemplar bolt. The court addressed the first factor: was the testing "reasonable, necessary and relevant?" By examining case law in which destructive testing was not allowed, the court found that "a party may not use destructive testing merely to bolster an expert opinion or to gain other potentially intriguing, albeit irrelevant, information." Instead, the evidence sought "must be integral to proving the movant's case and do more than strengthen an already established claim or defense."⁸

Defendants here argued that the proposed testing was unnecessary because the liability theory was speculative and, further, that, since plaintiff's experts already "formed" their theory, the testing was an attempt to bolster their opinions. The court concluded that defendants failed to show the proposed testing was unnecessary. While plaintiffs "must show that the evidence sought through destructive testing is necessary to prove their case," the burden "is not so high as to require definitive proof that plaintiff's hypothesis will prove correct." In other words, "plaintiffs need not prove their case for the opportunity to prove their case."⁹

Then the court looked to the second factor, the potential prejudice to defendant. A decision to allow destructive testing becomes "especially difficult" when the object is "unique and one side intends to use it in its 'original' state at trial." By examining prior case law, the court reasoned that a material change in the appearance of the object is itself insufficient to categorically prohibit destructive testing. Although defendants claimed that a live presentation of the subject ladder to the jury will be prevented, i.e., showing that a person can climb it without the ladder collapsing, the court observed that such demonstrations had been conducted at the laboratories of defendant's expert witnesses and could be shown to the jury via videotape and explained by expert testimony. The deprivation of a live demonstration did not outweigh the benefits of providing plaintiffs with the ability to test the bolts for hardness and composition.¹⁰

Factors Analyzed

Addressing the third factor — whether there are nondestructive alternative methods of testing — the court noted that defendant had two counter-proposals it contended would yield the same data, i.e., photographing the bolts with a borescope, and only excising the end of one bolt to spare the need for disassembling the ladder. Each of these suggestions had drawbacks, however. Photography, regardless of its sophistication, would not determine composition and hardness. Further, excision of a sliver from the end of the bolt would not necessarily be representative of the bolt's main sections and, therefore, might yield an inadequate sample not providing the same data sought by plaintiff.¹¹

Finally, the fourth factor, adequate safeguards to minimize prejudice to the adversary, was addressed by citing a list of possible safeguards elaborated earlier in the Cameron case from Colorado.¹² These included opportunities for the adversary to photograph or otherwise record the condition of the object to be tested; notice to the adversary of the time, place and exact manner of the destructive testing; reasonable opportunity to observe and record the testing procedure; the right of the adversary to conduct or participate in similar tests with a portion of the sample to be tested; provision for discovery of the results of the destructive tests; and allocation of costs as justice may require.

Here the defendant fully inspected the ladder, conducted experiments on it, and preserved the original state of the ladder through photographs and videotape. Additionally, said the court, defendant will be allowed to attend the testing; all test procedures will be photographed; and plaintiff will produce a detailed protocol of the intended testing, explaining all procedures. These measures minimized the potential for prejudice to the adversary.

The Mirchandani court's analysis is instructive to counsel on both sides in structuring their positions when one litigant seeks to conduct destructive testing on the crown jewels. Give the Mirchandani ruling a good read and keep it handy as a reference on the basics.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes:
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[1]. 235 FRD 611 (D. Md. 2006) (USMJ Gesner).
[2]. Mirchandani, 235 FRD at 613 (citing Spell v. Kendall-Futuro Co., 155 FRD 587 (E.D. Tex. 1994); Dabney v. Montgomery Ward & Co., 761 F2d 494, 498 (8th Cir. 1985); Ostrander v. Cone Mills, Inc., 119 FRD 417, 419 (D. Minn. 1988), as well as 7 James Wm. Moore et al., Moore's Federal Practice 34.14[6], pp. 81-82 (3d ed. 1005) (collecting cases)).

[3]. Mirchandani, 235 FRD at 613.
[4]. 2 AD2d 533, 157 NYS 2d 249 (App. Div. 1956).

[5]. Mirchandani, 235 FRD at 613 n. 1 (citing Foster-Lipkins Corp. v. Suburban Propane Gas Corp., 339 NYS 2d 581 (App. Div. 1973); Edwards v. Southampton Hospital, 278 NYS 2d (Sup. Ct. 1967); and 1 Weinstein, Korn & Miller et al., New York Civil Practice 3120.25 (2d ed. 2004)).

[6]. 565 P. 2d 925 (Colo. Sup. Ct. 1977).
[7]. Mirchandani,, 235 FRD at 614.
[8]. Id. at 615.
[9]. Id.
[10]. Id. at 616.
[11]. Id.
[12]. Id. at 617 (quoting from Cameron, 565 P. 2d at 931).