Is There Any Claim For Spoliation Of Evidence Left? Maybe Just a Little Bit Of One?

    As a product liability defense lawyer, I've long been interested in the subject of spoliation of evidence, if only because of the drubbing our Supremes have always given all possible versions of this theory.  I like to think of the missing piece of evidence as the trial lawyer's version of the  "MacGuffin."   

    Anyway, the typical spoliation theories are these:  (1)  the defendant in the tort

case loses or destroys a key piece of evidence -- the MacGuffin, if you will-- and the plaintiff, who thereby loses his ability to prosecute the tort case, sues for spoliation instead.  That doesn't work:  Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1;  (2) a third party loses or destroys the MacGuffin, the plaintiff can't prosecute his case, so he sues the third party for spoliation instead.  That doesn't work either:  Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464;  and (3)  one party or the other fails to take good care of the MacGuffin, or destroys it before or after the litigation, and the other side seeks a discovery sanction.  Generally speaking, that one is also a non-starter.  New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403.  About the most an aggrieved party can hope for is a jury instruction based on Evidence Code section 413 to the effect that if a party has suppressed evidence, the jury can infer that the suppressed evidence wouldn't have done him much good (see our form instruction, CACI 204.

    So, what's left?  Well, until next week, I would have told you that zilch was left.  Then along comes this case, Cooper v. State Farm Mutual Automobile Insurance Company (September 17, 2009) ___ Cal.App.4th___ (E047002).  This is a ponderous opinion, meandering on for some 43 pages.  I think it quotes the plaintiff's entire opening statement, no kidding.  I've read it so you don't have to.  More after the jump.

    In Cooper, plaintiff's tire failed, his car rolled, and he was injured.  His auto insurer, State Farm, took custody of the car and tire, as it had a contractual right to do under his policy.  State Farm settled his property damage claim and wanted to keep the tire to seek subrogation against Continental, the manufacturer of the tire.  Cooper wanted to ensure protection of the tire for use in his personal injury case against Continental. 

    State Farm did the following:  promised Cooper it would take good care of the tire;  had its automobile and tire experts inspect the tire, both concluding that it was defective;  and, of course, trashed the car and the tire.  Cooper sued State Farm.  His attorney alleged that under Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, the absence of the tire meant he was out of court on his ear in his case against Continental. 

    In his opening statement, Cooper's attorney argued that State Farm had promised to take good care of the evidence and had failed to do so.  The trial court granted nonsuit (i.e., dismissed) after opening statement.

    And the Court of Appeal reversed.  The pitch is this:  because State Farm promised to take good care of the tire and Cooper foreseeably relied on that promise, there was a promissory estoppel, the "doctrine which employes equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced."  Id., fn. 3, quoting US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901-902.  Or, in the alternative, State Farm voluntarily assumed a duty, Cooper relied on that assumption, and a duty was therefore created where none had been before, citing Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1091-1092. 

    Well now wait a minute.  One of the bases for the Supremes' decision in Cedars-Sinai and Temple was this:  since the MacGufffin has been lost, a tort cause of action for losing it can't be proved because the plaintiff can't show that if he'd had the MacGuffin, he could have proven his case.  This would be, as we defense lawyers say, a matter of speculation.  And an inability to prove causation.

    But the Court of Appeal says hey, no problem.  Because State Farm's experts already inspected the tire, and found it defective, he might be able to convince a jury that with the tire he could have won the case.

    Well now, wait another minute.  If he could convince the spoliation case jury  the tire was defective, why couldn't he just convince a jury in a personal injury case that the tire was defective based on the findings of State Farm's experts?  Well, says the Court, maybe he could -- in which case he loses his spoliation case:

[I]t is possible that a jury would find that plaintiff already maintained sufficient evidence to prove the elements of his underlying claim against Continental Tire and, therefore, State Farm’s failure to preserve the tire did not affect his ability to prove his case . . . .                    

    But since this was a nonsuit case, all assumptions and intendments and inferences  are given to the plaintiff.  But at the end of the day, the trial and the appeal and the 43 page opinion and all that may just be for naught, because while there was spoliation, and while the plaintiff presented the rare -- maybe even unique -- circumstance where he had a right to pursue the spoliation case, it just may be that he should have gone after the tire company instead.