potentially responsible party before relevant evidence is destroyed. Id. at 1123.
Liberty Mutual maintains that it did preserve the relevant evidence, i.e., the microwave oven, coffee maker, and refrigerator wiring. Also available to WCI and Motorola is wiring from inside the kitchen wall retrieved by Mr. DiOrio. Liberty Mutual also points out that a number of photographs and a two hour video tape of the fire scene are available to WCI and Motorola. While such evidence may serve to ameliorate the prejudice to WCI and Motorola, Liberty Mutual cannot refute the assertion that demolition of the fire scene resulted in destruction of otherwise relevant evidence.
Contrary to Liberty Mutual's assertion, a finding of "bad faith" or "evil motive" is not a prerequisite to imposition of sanctions for destruction of evidence. See, e.g., Uniguard Sec. Inc. Co., 982 F.2d at 369; Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 219 (1st Cir. 1982). Since Liberty Mutual authorized the destruction of indisputably relevant evidence, it and its insureds, the McNeils, are subject to sanctions.
The motive for the destruction of evidence is, of course relevant to determining what sanctions, if any, should be imposed. Schmid makes clear that it is "the degree of fault" that is at issue. Evidence warranting a finding of bad faith may support the drastic sanction of preclusion of evidence that could result in the entry of judgment against the spoliating party. See, e.g., Lewis v. Darce Towing Co., 94 F.R.D. 262, 269 (W.D.La. 1982).
In this case, the evidence does not support a determination that Liberty Mutual acted in bad faith. Although it had identified WCI as a potential subrogation target at the time it authorized demolition of the fire scene, no evidence was presented that a decision had been made by then to pursue a subrogation claim. Nor was any evidence presented that Liberty Mutual sought to destroy the fire scene in order to divert liability from its insureds, the McNeils, to WCI. In addition to the absence of evidence of bad faith, there is evidence that the fire scene was a safety hazard that should have been destroyed as soon as reasonably possible. In this regard, no party has contended that the fire scene should have been preserved indefinitely. The record presented to this Court thus does not permit the conclusion that Liberty Mutual acted in bad faith.
It is clear, as Motorola and WCI assert, that a manufacturer of a product that is allegedly responsible for causing a fire is prejudiced if it cannot have its own cause and, origin expert inspect a fire scene for other potential causes. Schmid, 13 F.3d at 80 ("defendant will want as much evidence as possible relevant to the issue of causation"). It goes too far, however, to assert that demolition of the fire scene "rendered it impossible for [WCI] and Motorola to defend themselves." (Brief in Support of Joint Motion for Summary Judgment, p. 9; emphasis added.)
In contrast to those case where the allegedly defective product as well as the fire scene were destroyed, e.g. Uniguard Sec. Ins. Co., supra; Fire Insurance Exchange v. Zenith Radio Corp., supra, the microwave oven as well as other items identified as potential causes of the fire have been preserved in this case. WCI and Motorola have the ability to defend their respective products by having experts examine the microwave oven and refute Liberty Mutual's assertions. Moreover, wiring from inside the kitchen wall, identified by other experts as the point of ignition, is available. Also mitigating the prejudice is the existence of scores of photographs and a lengthy video tape of the fire scene. Furthermore, a cause and origin expert retained by the Baliotises has submitted a report in which he concludes that the fire started inside the wall of the kitchen, and the State Fire Marshal identified that area as the logical source of the fire. Indeed, because of burn patterns, he excluded the microwave oven as the potential source of ignition.
At oral argument, Motorola acknowledged that the evidence supplied by the Baliotises' cause and origin expert "is very supportive of a cause other than the microwave." (Transcript of oral argument (Dkt. Entry #92) at 23.) WCI conceded that it has retained a cause and origin expert who has available to him all of the evidence referenced above. (Id. at 38.) No affidavit has been presented in this case that either WCI or Motorola will be unable to present expert witness evidence on the cause and origin of this fire because of the demolition of the fire scene.
Accordingly, a defense to this action has not been rendered impossible by the demolition of the fire scene. Thus, neither summary judgment nor preclusion of testimony from McGinley appears appropriate.
Our Court of Appeals has indicated that where there is no bad faith on the part of the spoliating party and the prejudice is not severe, a sanction of witness preclusion or entry of judgment is unwarranted. 13 F.3d at 81. The Third Circuit specifically rejected a blanket preclusion rule based on the proposition that an expert witness "has an affirmative duty not to conduct an investigation without affording all potential defendants an opportunity to have an expert present." Id. The Court explained:
An across-the-board rule that would require an identification of all potential defendants at this nascent stage of the potential controversy and an invitation to each of them to attend an exploratory investigations would be inefficient, if not all together unworkable. Many accident investigation do not lead to litigation and many narrow the field of potential defendants. There are still more situations in which the resources necessary to assemble the experts of potential defendants would be invested with no significant return on the investment. On the other hand, in cases like this one, the attendant delay would pose a significant risk of prejudice to the plaintiff. Id.