its use and handling prior to the date of the incident." 599 A.2d at 689.
Finally, defendants rely upon the opinion of another judge of this court in Sipe v. Ford Motor Co., 837 F. Supp. 660 (M.D. Pa. 1993). The plaintiff was an employee of the Pennsylvania Turnpike Commission who was discussing the hydraulic systems of two trucks while standing between the trucks with a foot on the bumper of each. He claimed to have been injured by an electrical current resulting from defective wiring in a block heater and his stance on the two bumpers, which would have completed an electrical circuit. Sipe, 837 F. Supp. at 660
After the accident, the Turnpike Commission repaired the allegedly defective block heater. The defendant moved for summary judgment because it did not have access to the allegedly defective product. The court granted summary judgment, stating, "Pennsylvania courts have recognized a public policy rule against allowing products liability cases to go forward when the product itself is unavailable for inspection." Id. Relying upon Roselli, the court determined that, whenever a defendant is unable to examine the allegedly defective product, the plaintiff should not be permitted to proceed with the case. Sipe, 837 F. Supp. at 660-661
With all due respect to the courts which decided Roselli and Sipe, we disagree with those opinions for the reasons which we set forth at length below.
First, the "public policy rationale" discussed in Roselli and Sipe actually relates to the concept of spoliation of evidence. This concept was discussed at length in Schmid v. Milwaukee v. Electric Tool Corp., 13 F.3d 76 (3d Cir. 1994). Under both the substantive law of Pennsylvania and federal law of evidence, a court may sanction a party which, with notice that evidence is relevant to litigation, proceeds to destroy the evidence. 13 F.3d at 78. Sanctions which may be imposed for such conduct vary with the seriousness of the conduct, the degree of prejudice, and the availability of a lesser sanction which will protect the rights of the opposing party while deterring such conduct in the future. 13 F.3d at 79. At the lesser end of the sanctions scale is the "spoliation inference," whereby a court permits evidence of the destruction and allows the jury to infer that the evidence would have been unfavorable to the position of the party which destroyed it. 13 F.3d at 78. At the more extreme level, the court may prohibit the offending party from offering evidence necessary to prove its prima facie case. The latter sanction, in many cases, will lead to summary judgment against that party. 13 F.3d at 79 n. 2.
Based upon Schmid, and the cases cited therein, we conclude that the public policy rationale discussed in Roselli and Sipe is a misconstruction of the spoliation doctrine. Under Pennsylvania law, a plaintiff who destroys evidence is sanctioned for that conduct. As set forth in Schmid, the sanction varies depending on the conduct and the circumstances. In products liability cases, both Pennsylvania and federal courts applying Pennsylvania law have held consistently that a plaintiff who destroys the allegedly defective product will be precluded from proving the defect, which in turn leads to summary judgment against the plaintiff. Such a sanction is consistent with the Schmid rule.
However, there does not appear to be a basis for concluding that such a sanction would be appropriate when no conduct on the part of the plaintiff is the cause of the destruction of the allegedly defective product. In Troy, for example, the plaintiffs were not responsible for the destruction of the appliances or the laundry room, nor did they in any way have custody of either. That case was permitted to go to a jury, to which the plaintiffs would have the opportunity of presenting all of their evidence.
In Roselli, on the other hand, the plaintiffs had custody of the carafe and failed to preserve it. In Martin, the plaintiff sold the car which he claimed had a defective accelerator. In Lee v. Boyle-Midway Household Products, Inc., 792 F. Supp. 1001 (W.D. Pa. 1992), the plaintiff claimed to have been injured due to defective drain cleaner, but lost the container. Because there was a question as to whose product had injured the plaintiff, and the plaintiff could not produce the actual container as a result of his own conduct, judgment was entered for the defendant.
Features common to all of these cases are that: (1) the product's unavailability was caused by the plaintiff; (2) the defendant was prejudiced severely by the unavailability of the product; and (3) without direct evidence of the product, the plaintiff was unable to establish a prima facie case. As to the latter feature, in Roselli, the plaintiffs could not show that the carafe did not break due to prior use. In Martin, the plaintiff could not attribute the accident to a defective accelerator, as opposed to the myriad other causes of an automobile accident. In Lee, the plaintiff could not identify positively the manufacturer of the drain cleaner. Applying the Schmid rule, then, in each of these cases: the conduct was serious; there was severe prejudice to the defendants because of a lack of direct evidence with which to refute the plaintiffs' allegations; and lesser sanctions would not deter such conduct in the future because of the increased probability of a successful outcome of the litigation for the plaintiffs.
In short, then, the cases in which judgment has been entered in favor of defendants because the plaintiffs have lost or destroyed key evidence are consistent with the doctrine of spoliation of evidence. The reason for the sanctions imposed in such cases is to deter such conduct on the part of plaintiffs and to protect defendants from such conduct. This rationale is summarized in the very provision of Martin which is quoted in Roselli. To hold that no plaintiff may recover in a product liability action when the actual product which is alleged to be defective is unavailable, regardless of the conduct of the plaintiff, is an unwarranted expansion of the doctrine of spoliation of evidence.
Moreover, although Schmid deals specifically with spoliation of evidence, it also deals generally with the unavailability of evidence in a product liability case. The allegedly defective product in that case was an electric saw. The plaintiff's expert disassembled the guard on the saw, which guard was purported to be the defective component. The expert therefore altered the condition of the saw to some degree, but did not destroy it. The Third Circuit held that the case should not be dismissed because there was only limited fault and limited prejudice to the defendant. Schmid, 13 F.3d at 81.
Roselli and Sipe, for their part, stand for the proposition that the unavailability of evidence requires a blanket proscription against recovery by the plaintiff. Schmid, on the other hand, stands for the proposition that, when evidence is unavailable or not available in the same condition as at the time of the accident, the court must examine the reasons for and the effect of the unavailability, and react appropriately. In this context, we would note that Sipe was decided before the Schmid opinion was issued. As Schmid is a Third Circuit opinion, it is controlling on this court over both Roselli and Sipe.
The public policy rationale which defendants wish this court to apply also is inconsistent with the malfunction theory of product liability as announced in Rogers. The Pennsylvania Supreme Court specifically stated that this theory applies when the plaintiff is unable to produce direct evidence of a defect, but may do so through circumstantial evidence. Nothing in Rogers may be interpreted as precluding circumstantial evidence not in the form of the actual product which is alleged to be defective. In fact, in neither the Supreme Court opinion in Rogers, nor in the Superior Court opinion which was overturned, Rogers v. Johnson & Johnson Products, Inc., 368 Pa. Super. 109, 533 A.2d 739 (Pa. Super. 1987), is there any mention of whether the plaster of Paris splint at issue was available for examination. It appears to this court that the splint's availability was immaterial; the plaintiffs in Rogers were proceeding under a malfunction theory, so that they were required to prove their case through circumstantial evidence, while the splint itself would be direct evidence. In short, the actual product which is alleged to be defective is more than is required to prove a case by circumstantial evidence. Roselli and Sipe, in requiring the actual product, are inconsistent with Rogers.
Finally, we would note that much of the reasoning of the court in Roselli is superfluous. In that case, the remnants of the carafe were in the possession of the plaintiffs following the accident, and the loss of the evidence is attributable to the plaintiffs. Consistent with the rationale of Martin, the court was justified in entering judgment in favor of the defendant, and there was no need to expand upon the rationale of Martin to include cases in which the plaintiff is in no way at fault in the loss or destruction of evidence.
The Roselli court's attempt to distinguish Troy also is not persuasive. While it is true that State Police fire marshals and experts for the supplier of gas and the campground owner were able to examine the appliances before they were destroyed, the supplier and the owner benefitted from the destruction of the evidence. Not surprisingly, the owner's expert concluded that the explosion was caused by a defective gas pilot light safety valve on the hot water heater. Troy, 581 A.2d at 668. Even if the owner was found liable, the manufacturer of the hot water heater would be liable for indemnification or contribution. The manufacturer, though, would be unable to rebut the direct evidence of a defect presented by the owner. The owner benefits because the manufacturer will be held liable, as does the plaintiff, whose case for a defect in the hot water heater in essence is presented by the owner. For all practical purposes, then, the case is indistinguishable from other cases in which the defendant is prejudiced by the loss or destruction of evidence, and the rationale of Schmid would apply.
In addition to all of the foregoing, we would add that a policy of barring recovery for a defective product whenever the product is not available is contrary to common sense. As stated by the dissent in Roselli, "Many times products are destroyed before suit is filed, yet this is not sufficient reason to bar plaintiffs from pursuing their rights." 599 A.2d at 689 (Del Sole, J., dissenting).
For example, if clothing is made of cloth which is highly flammable, plaintiffs would be precluded from recovering because the clothing would be destroyed in the flames. The same could be true of defective electrical products. If a person was injured by ingestion of tainted food or medicine, recovery would be barred because the process of digestion would consume the defective product. Products are consumed in innumerable ways: liquid products evaporate; gaseous products dissipate; solid products dissolve, are eaten, etc. Moreover, the possessor of a defective product would be required to preserve the product in its defective state, leading in many cases to an ongoing hazardous condition. It simply is impractical to expect every defective product to be preserved in its original state for purposes of litigation.
In short, then, we reject defendants' argument that Pennsylvania courts apply a blanket proscription against recovery for product liability when the allegedly defective product is unavailable. The malfunction theory of product liability is directly contrary to this proscription. Also, the Third Circuit requires an analysis of conduct leading to the unavailability of evidence in such a case, and its analysis precludes the policy argued by defendants. Finally, the policy argued by defendants runs contrary to common sense.
The motions for summary judgment will be denied. An appropriate order shall issue.
James F. McClure, Jr.
United States District Judge
September 20, 1994
For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT:
1. The motion (record document no. 28) for summary judgment filed by defendant Dynetics Corporation and third-party defendant B & G Mfg. Co. is denied.
2. The motion (record document no. 41) for summary judgment filed by third-party defendant McMaster-Carr Supply Co. is denied.
James F. McClure, Jr.
United States District Judge