United States District Court, W.D. Pennsylvania
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,
The Goodyear Tire & Rubber Company, Defendant.
Flowers Conti Chief United States District Judge.
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
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
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.
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.
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
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 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.)
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.)
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. ¶¶
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.)
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.
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