Based on the record made by the parties, the evidence is clear and convincing that the head weldment was lost by the plaintiff while in the custody of plaintiff's expert.
Therefore, the sole issue remaining before the Court is whether a defendant is entitled to summary judgment in a products liability action when the allegedly defective product is lost or destroyed by the plaintiff.
Initially, this matter raises a question regarding the permissible basis of a Rule 56 summary judgment. Rule 56(c) requires the entry of summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Once the moving party has satisfied its burden of identifying evidence which demonstrates the absence of a genuine issue of material fact, the non-moving party must demonstrate by affidavits and other materials the existence of specific material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987). Rule 56(e) states that a "court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Fed. R. Civ. P. 56(e).
In support of, and in opposition to, the motion at bar, the parties have added to the record five affidavits and over two hundred photographs of the missing head weldment. At the February 25, 1993 evidentiary hearing, I also permitted the parties to adduce the testimony of witnesses, and plaintiff did produce their expert, Mr. John Wiss, a mechanical engineer who has examined the head weldment, to testify that defendants are not unduly prejudiced by the head weldment's absence.
Although sworn testimony is not enumerated as one of the evidentiary bases upon which a motion for summary judgment may be decided, it is fairly implied from Rule 56(c)'s reference to the possible "hearing on the motion," and it is well established that trial judges may consider such evidence under Rule 56. See e.g., American Contract Bridge League v. Nationwide Mut. Fire Ins. Co., 752 F.2d 71, 75 n. 2 (3d Cir. 1985) (citing U.S. v. Webber, 396 F.2d 381, 386 n. 10 (3d Cir. 1968); Stafford v. Electronic Systems and Assoc., Inc., 1989 WL 150007 (E.D.Pa. 1989) (court granted summary judgment after considering pleadings, affidavits, briefs, testimony and exhibits submitted at hearing).
Plaintiff argues that summary judgment should be denied because defendants have not been prejudiced by the loss of the head weldment. Specifically, plaintiff alleges that defendants have had ample time to inspect the head weldment, and have in fact performed destructive testing upon the piece. Further, plaintiff avers, enough information about the head weldment exists, including over 200 photographs, to enable the parties' experts to opine regarding the existence vel non of a defective condition in the head weldment.
Defendants deny that their experts have performed destructive testing, and insist that without further examination of the head weldment, they are severely prejudiced by their inability to prepare a defense to plaintiff's action. However, defendants' also argue that the mere fact that plaintiff lost the head weldment ipso facto entitles them to summary judgment. See Defendant Barko's February 26, 1993 Letter to Judge Smith at 2.
In support of their position, defendants cite Lee v. Boyle-Midway Household Products, Inc., 792 F.Supp 1001 (W.D.Pa. 1992) and Martin v. Volkswagen of America, Inc., 1989 WL 81296 (E.D.Pa. 1989). The plaintiff in Martin sued the defendant auto manufacturer on theories of strict liability, negligence and breach of warranty when a 1984 Audi she was driving allegedly accelerated out of control and crashed, causing her injuries. Sometime prior to the filing of the claim, the allegedly defective Audi was sold and neither plaintiff nor defendants were able to examine it. The court in Martin entered summary judgment against the plaintiff, quoting Friend v. The Pep Boys, 3 Phila. 363 (1979), aff'd 292 Pa. Super. 569, 433 A.2d 539 (Pa.Super. 1981), wherein the court stated:
To permit claims of defective products where a purchaser of the product has simply thrown it away after an accident, would both encourage false claims and make legitimate defense of valid claims more difficult. It would put a plaintiff (or plaintiff's attorney) in the position of deciding whether the availability of the item would help or hurt his or her case. Where producing the product for defense inspection would weaken rather than strengthen a case, we unfortunately are obliged to conclude that some plaintiffs and attorneys would be unable to resist the temptation to have the product disappear.