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Charcalla v. The Goodyear Tire & Rubber Co.

United States District Court, W.D. Pennsylvania

June 23, 2017

BRENDA CHARCALLA, individually and as personal representative of the Estate of Gary Charcalla and as guardian of her minor sons, Brock Charcalla and Dalton Charcalla, Plaintiff,
v.
The Goodyear Tire & Rubber Company, Defendant.

          MEMORANDUM OPINION

          Joy Flowers Conti Chief United States District Judge.

         I. Introduction

         Pending before the court is the motion for sanctions filed by defendant The Goodyear Tire & Rubber Company (“Goodyear”). (ECF No. 103.) In the underlying action, plaintiff Brenda Charcalla, individually and as personal representative of the Estate of Gary Charcalla and as guardian of her minor sons, Brock and Dalton Charcalla (“Charcalla” or “plaintiff”), alleges that a defectively manufactured Goodyear tire on her husband's truck experienced a tread separation at highway speeds, leading to a fatal accident. Goodyear contends, inter alia, that an alternative explanation for the accident might have been the failure of a product called a steer damper (or steer dampener) that had been attached to the axle of the truck. At issue in the instant motion is whether the disappearance of the steer damper from the storage lot in which the truck had been secured warrants a spoliation sanction.

         Goodyear originally raised this issue in a motion for summary judgment. (ECF No. 76.) At a telephonic status conference held on September 20, 2016, this court noted that the issue would be more appropriately framed as a motion for sanctions. (ECF No. 105.) Goodyear responded by filing the instant motion.

         On October 26, 2016, Charcalla filed a motion seeking limited discovery for the purpose of responding to Goodyear's spoliation motion. (ECF No. 107.) This court granted Charcalla's request. (ECF No. 110.) Following the discovery period, Charcalla responded to Goodyear's motion (ECF No. 113) and Goodyear filed a reply. (ECF No. 116.) This matter is now ripe for disposition.

         II. Factual Background

         On July 15, 2011, plaintiff's husband, Gary Charcalla, was operating a 2000 Freightliner FL60 truck when the front left tire on the truck allegedly sustained a tread separation. (Combined Concise Statement of Material Facts (“C.S.M.F.”) (ECF No. 96) ¶¶ 1-3.) Plaintiff alleges that this tread separation caused the vehicle to lose control and exit the highway, striking several trees before landing on its side. (Id. ¶ 6.) Gary Charcalla was killed in the accident and several other passengers sustained injuries. (Id. ¶¶ 7-8.)

         The subject tire was a Goodyear G647 all-steel commercial truck tire manufactured in 2003. (Id. ¶ 3.) Following the accident, plaintiff's insurance company, Progressive Insurance (“Progressive”), ordered that the truck be towed to a salvage yard facility in Virginia for inspection and storage. (Id. ¶ 9; Affidavit of Ryan Clute (“Clute Aff.”) (ECF No. 94-8) ¶¶ 6-7.) Photographs taken by Progressive immediately following the accident reveal that the front axle of the truck was fitted with a steer damper, an aftermarket stabilizer designed to prevent the driver of a vehicle from losing control during a tire malfunction of the kind alleged in this case. (ECF No. 103-2.) Goodyear submitted an expert report opining that the steer damper on the Charcallas' truck may have malfunctioned, making it difficult or impossible for the driver to maintain control of the vehicle. (ECF No. 96 ¶ 11; Deposition of Robert Nocivelli (“Nocivelli Depo.”) (ECF No. 85-13) at 84; Expert Report of Robert Nocivelli (“Nocivelli Report”) (ECF No. 85-14) at 7.) This kind of malfunction might provide an alternative explanation for the accident and a potential defense to plaintiff's allegations that the tire was defective. (Motion for Sanctions (ECF No. 103) at 2-4.). Unfortunately, the front axle of the vehicle, along with the steer damper, went missing before Goodyear could perform any testing.

         Records from the salvage yard provide a general timeline about the movement of the vehicle following the accident. On July 19, 2011, the accident claim was assigned to Progressive agent Ryan Clute (“Clute”). (Clute Aff. (ECF No. 94-8) ¶ 4.) Pursuant to Clute's instructions, the truck was delivered to a storage facility operated by Salvage Direct[1] on or about July 25, 2011. (Id. ¶¶ 6-7.) On August 9, 2011, Clute orally requested that the evidence be placed “on legal hold, ” meaning that the evidence “was not to be disturbed or destroyed or sold.” (Id. ¶ 8.) Progressive followed up with a written “Legal Hold Request” on August 11, 2011. (Id. ¶ 9.) On August 17, 2011, a “hold sticker” was placed on the truck. (Salvage Direct Records (ECF No. 114-2) at 22; Hold Sticker (ECF No. 114-4) at 17.)

         On October 11, 2011, Goodyear's local counsel visited the salvage yard and photographed the vehicle, including the front axle assembly. (ECF No. 114-4 at 9-15.) These are the last known photographs of the missing parts. (Affidavit of Brian Ellis (“Ellis Aff.”) (ECF No. 91) at 7.)

         On May 2, 2013, plaintiff's counsel emailed Clute and requested that the “right front tire and axle” continue to be preserved. (Clute Aff. (ECF No. 94-8) ¶ 10.) Clute, after consulting with QCSA, discovered for the first time that the front axle assembly was missing and reported this fact to plaintiff's counsel. (Id. ¶¶ 11-12.)

         Plaintiff initiated the instant action on July 9, 2013. (ECF No. 1.) Plaintiff's Rule 26(a)(1) disclosure statement, served on November 7, 2013, failed to mention the missing axle assembly. (ECF No. 116-2.) On February 6, 2014, plaintiff's counsel emailed Clute to inquire about whether the missing evidence had been located. (Clute Aff. (ECF No. 94-8) ¶ 13.) Clute made a follow-up inquiry on April 1, 2014, but could not locate the missing parts. (Id. at ¶¶ 11-14.) On April 11, 2014, another Progressive agent visited the salvage yard and failed to locate the front axle assembly. (Id. ¶ 15.) On December 19, 2014, Goodyear's counsel performed an inspection of the vehicle and learned, for the first time, that the front axle assembly and steer damper were missing. (ECF No. 116-1.)

         In December 2014, plaintiff engaged a private investigator, Brian Ellis, to attempt to locate the missing evidence. (Ellis Aff. (ECF No. 91) at 3.) In January 2016, Progressive retained its own private investigator, Kenneth Osborne, to perform a similar search. (ECF No. 116-1.) Neither investigator was able to locate the missing parts.

         After being granted supplemental discovery, plaintiff deposed several employees of Salvage Direct and QCSA. Ron McKee, a former employee at the Salvage Direct yard in Virginia, recalled that Progressive had moved a lot of their inventory to another facility at some point in 2013. (Deposition of Ron McKee (“R.McKee Depo.”) (ECF No. 114-6) at 14-15.) Kari McKee, another Salvage Direct employee, corroborated that Progressive had withdrawn a large amount of inventory sometime in 2013. (Deposition of Kari McKee (“K. McKee Depo.”) (ECF No. 114-5) at 48.) An entry from Progressive's claim notes suggests that the vehicle may have been moved from one side of the salvage yard to another at some point. (Deposition of Ryan Clute (“Clute Depo.”) (ECF No. 114-3) at 76-79.) While this suggests the general possibility that the front axle and steer damper may have been misplaced in the course of moving ...


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