The opinion of the court was delivered by: Schiller, J.
Defendant Dorel Juvenile Group ("Dorel") manufactures child booster seats. Dorel seeks sanctions due to Plaintiff's failure to preserve the seat that allegedly injured Ethan Waltman. It requests that the Court bar testimony that Ethan used the booster seat on the day of the crash, and that the Court instruct the jury that whatever seat Ethan did use had ten pounds of seatbelt tension. The Court heard oral argument on June 27, 2011, and the parties have submitted supplemental briefing. The Court will grant the motion in part and deny it in part for the reasons stated below.
A. The March 4, 2006 Accident and Destruction of the Booster Seat
On March 4, 2006, two-year-old Ethan Waltman was riding in the back seat of his parents' minivan when his mother drove it into a tree. (Pl.'s Mem. in Opp'n to Def.'s Mot. for Spoliation Sanctions [Pl.'s Opp'n] 1-2.) Ethan suffered serious injuries, including catastrophic brain damage. (Id. at 2.)
Midway Towing removed the minivan from the accident scene. (Def.'s Mot. for Spoliation Sanctions [Def.'s Mot.] Ex. 1, Karl Hartranft Dep. 88.) Around four days after the crash, Midway Towing contacted Ethan's father, Benjamin Waltman. (Def.'s Mot. Ex. 3, Benjamin Waltman Dep. 59.) The towing company left him several voicemail messages regarding the bill for moving and storing the minivan. (Id. at 58.)
Waltman viewed the wreck at Midway Towing. (Id. at 50.) He took pictures of the minivan's exterior and of the interior on the driver's side and front passenger's side. (Id. at 55.) Waltman testified that he saw Ethan's booster seat still in the vehicle, in the third-row seat on the passenger side. (Id. at 51.) He did not take any pictures of the booster seat. (Id. at 55.)
Midway Towing offered to waive towing and storage fees if Waltman agreed to sign over the minivan's title. (Id. at 58.) Waltman agreed and brought the title to Midway Towing. (Id.) He did not retrieve the car seats in the minivan, as they had been in an accident and "somebody told [him] . . . it wouldn't be wise to use them again." (Id. at 59.)
Waltman had an insurance policy with Progressive. (See Def.'s Mot. Ex. 2, Insurance Claim Summary; see also Benjamin Waltman Dep. 54.) Progressive received notice of the Waltmans' claim on March 7, 2006. (Insurance Claim Summary.) The insurance company sent Waltman a letter dated March 8, 2006 which he received around March 14, 2006. (Def.'s Mot. Ex. 11, March 8, 2006 Progressive Letter.) The letter informed Waltman that the value of his claim appeared to exceed his policy limits, and advised him that if he wished to pursue claims beyond the liability limit of his policy at his own expense, Progressive would cooperate with his attorney. (Id.)
Waltman later became frustrated with Progressive when they "didn't want to give [him] any answers." (Benjamin Waltman Dep. 54.) He contacted attorney Soren West around two months after the accident to discuss his issues with Progressive. (Id. at 53-54, 60.) Waltman claims that he first considered a claim against Dorel after his discussion with West. (Id. at 54.) He later called Midway Towing, but learned that the car seat had already been destroyed along with the rest of the minivan. (Id. at 60.)
B. The Cosco Grand Explorer
Plaintiff alleges Ethan was riding in one of Dorel's Cosco Grand Explorer booster seats ("the Cosco") at the time of the crash. The family primarily used the Cosco for Ethan's four-year-old brother, Desmond. (Id. at 44.) Benjamin Waltman did not recall Ethan ever riding in the Cosco before the day of the accident. (Id.)
Ethan's mother, Kimberly Waltman, testified that her sister and Ethan's brother Cayden were also in the minivan at the time of the accident. (Pl.'s Opp'n Ex. E, Dep. of Kimberly Waltman Dep. 146.) Before their trip, Kimberly carried Cayden's car seat to the minivan and her sister, Rebecca Polson, carried Ethan. (Id.) Kimberley testified that Polson told her that the Cosco was the only booster seat already installed in the minivan. (Id.) The Waltmans owned other booster seats, including three five-point seats the family had purchased for Ethan. (Id.) Nevertheless, Kimberly responded that Rebecca could place Ethan in the Cosco, as it was the only seat installed in the minivan that day. (Id. at 124, 146)
Polson placed Ethan in the seat, while Kimberly installed Cayden's seat. (Id. at 146) Polson was unfamiliar with the Cosco, and had trouble with the seatbelt. (Id. at 149.) However, Kimberly did not check to see whether Polson had placed Ethan in the Cosco correctly. (Id. at 146)
Polson insisted at her deposition that she did not remember anything about the car seat:
I don't remember what the car seat looked like. I don't remember what kind of car seat it was. And to be completely honest, I don't remember if there was a car seat in the car. I don't remember seeing it after the accident. I don't remember. And ...