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BALIOTIS v. MCNEIL

September 30, 1994

ANTONIO BALIOTIS AND ELLEN BALIOTIS, Individually and as Personal Representatives of the Estate of JACK RAYMOND BALIOTIS, Deceased
v.
DANIEL McNEIL AND MARGARET McNEIL AND FRIGIDAIRE CO., INC., et al.; DANIEL McNEIL AND MARGARET McNEIL v. WHITE CONSOLIDATED INDUSTRIES, INC. v. MOTOROLA, INC. AND EAC TECHNOLOGIES CORP.



The opinion of the court was delivered by: THOMAS I. VANASKIE

 Defendant White Consolidated Industries, Inc. ("WCI") and Motorola, Inc. ("Motorola") have jointly moved for summary judgment based upon the "destruction" of the scene of a fire. The tenants and owners of the property severely damaged in the fire have alleged that the conflagration is attributable to a microwave oven manufactured by WCI and for which Motorola purportedly supplied components. In their motion, WCI and Motorola contended that the failure to preserve the fire scene until their representatives could conduct an inspection so impaired their ability to defend these consolidated cases that judgment should be entered in their favor against all claims of all other parties. In their supporting memorandum of law, WCI and Motorola requested, alternatively, that the fire "cause and origin" expert retained by the property owners' insurer be precluded from testifying. For the reasons set forth below, the sanctions requested by WCI and Motorola will not be imposed. Instead, the appropriate sanction for the spoliation of evidence that occurred here is an adverse inference instruction to the effect that physical evidence lost as a result of the destruction of the fire scene would have been unfavorable to the position asserted on behalf of the property owners.

 BACKGROUND

 On August 21, 1990, a tragic fire swept through a home rented by Daniel and Margaret McNeil (the "McNeils") to Antonio and Ellen Baliotis (the "Baliotises"). The fire claimed the life of the Baliotises' three year old son.

 The McNeil house was insured under a home owners policy issued to the McNeils by Liberty Mutual Insurance Company ("Liberty Mutual"). Upon receiving notice of the fire, Peter Alejnikov, a Liberty Mutual claims adjuster, retained Patrick J. McGinley Assoc., Inc. and Paul Zamrowski Associates to investigate the cause of the fire. Ray Zuck, a forensic electrical engineer, was assigned by Paul Zamrowski Associates to conduct the investigation.

 It is undisputed that on August 23, 1990, McGinley was of the opinion that the fire had originated at countertop level in the northeast corner of the kitchen in the area of a microwave oven. (Joint Statement of Material Facts (Dkt. Entry #56) P 10.) Nor is it disputed that on August 23, 1990, Zuck expressed his opinion that the microwave oven and, in particular, an integrated circuit in the oven, caused the fire. (Id., P 11.) *fn1" Finally, there is no dispute that as of August 23, 1990, Zuck and Alejnikov knew that the microwave oven had been manufactured by WCI. (Id., P 12.)

 Zuck and McGinley removed the microwave oven as well as a coffee maker and the wiring from a refrigerator (both appliances having also been identified as possible ignition sources) from the McNeil house on August 23, 1990. The allegedly defective microwave oven has not been destroyed, but has been preserved as evidence for this case. *fn2" McGinley and Zuck both took a number of photographs of the fire scene.

 Fire Marshal Moschowsky concurred with McGinley's determination that the fire was electrical in nature, but concluded that the precise source was unclear. He identified seven "possible electrical ignition sources throughout the scene." (Exhibit "A" to the Brief in Support of Joint Motion for Summary Judgment (Dkt. Entry #58).) *fn3" Fire Marshal Moschowsky concluded that the "most logical source" of the fire was inside the wall and over the sink in the kitchen. (Id.)4 Fire Marshal Moschowsky took a number of photographs of the fire scene.

 An inspection of the fire scene was also undertaken by Mr. Baliotis himself in the company of his brother-in-law, Steve Collora. A video tape, described as being two hours in length, was made during the course of this inspection. (Transcript of oral argument of September 12, 1994 (Dkt. Entry #92) at p. 30.)

 The Baliotises retained a fire "cause and origin" expert, Fred L. DiOrio. He inspected the fire scene on August 31, 1990. He, too, took a number of photographs of the fire scene. In a report dated September 14, 1990, DiOrio attributed the cause of the fire to improper electrical installations. In pertinent part, his report stated:

 
It is my . . . opinion that this fire originated in the kitchen area, at or near the wall above the sink. It is my understanding that there were appliances, including the microwave oven and automatic coffee maker which were plugged into the duplex receptacles installed in the wall above the kitchen sink. If any of these appliances experienced any kind of malfunction, this event would have normally tripped the safety mechanism contained in the circuit breaker to which the receptacle was wired. This would immediately cause the electricity to this receptacle to cease to flow.
 
It was evident from my examination of . . . wires leading from the duplex receptacle on the left side of the sink in the kitchen, to the light fixture and duplex receptacle/light switch above and to the right of the sink, that the copper conductor was beaded on the ends and extremely brittle, indicating that it experienced an internal source of heat. (See photos #13 and 16). Had circuit breaker #5 not been taped in an "on" position, and allowed to function properly, this condition of the copper conductor could not have occurred.
 
By taping the circuit breakers in an 'on' position, the wire was allowed to overheat when the malfunction occurred, thereby causing a fire to occur in those combustible materials immediately surrounding it. It . . . must be noted that the construction of this house lent itself to a very rapid fire spread due to the lack of fire resistant materials used in the construction of the building. In addition, the improper wiring which I observed throughout many areas of the house, particularly those connections made with masking tape, would have only added to the rapid ignition of a fire in this house, had the copper conductor become overheated. [Exhibit 1 to the Deposition of DiOrio.] *fn5"

 DiOrio's conclusion, although apparently consistent with the Fire Marshal's, conflicts with the opinions of Liberty Mutual's experts. By report dated October 5, 1990, Patrick McGinley opined that "the specific ignition mechanism responsible for this fire was the Tappan microwave oven that was located at the point of origin of fire." (Exhibit "H" to the Joint Motion for Summary Judgment (Dkt. Entry #57) at p. 3.) His conclusion was consistent with that expressed in the September 14, 1990 report of Mr. Zuck, which asserted:

 
In my professional opinion, the malfunction and arcing in the top of the microwave control printed circuit board is the cause and origin of the fire.
 
The refrigerator, coffee maker, bathroom lighting and wiring, baseboard heater controls and house electrical wiring, did not cause the fire . . . . [Exhibit "I" to the Joint Motion ...

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