United States District Court for the Eastern District of Pennsylvania Rules Evidence was Spoliated for Failure to Follow NFPA 921
The United States District Court for the Eastern District of Pennsylvania issued its Opinion in Indemnity Ins. Co. of Nor. Am. v. Electrolux Home Products, Inc., 2011 WL6099362, E. D. Pa. 2011, finding that certain plaintiffs’ experts had spoliated evidence in failing to follow NFPA 921.
Plaintiff was a subrogee of the Unionville High School, which filed an insurance claim with Indemnity Insurance Company to recoup the cost of repair and restoration incurred as the result of a fire. Plaintiff sued Defendant Electrolux on theories of strict product liability and breach of warranty, alleging that a Frigidaire refrigerator was defective and was the cause of the fire. Defendant moved for summary judgment on Plaintiff’s strict liability claim and its breach of warranty claim, arguing that Plaintiff failed to present prima facie evidence of any defect in the refrigerator.
The fire occurred on the afternoon of July 23, 2009 at the high school, causing significant damage to the hallway known as the “yellow hallway,” which was located adjacent to the school’s gymnasium. The school was in the middle of summer vacation and there were few people present at the time of the fire.
Prior to the fire, various items had been moved into the hallway while the schools’ custodial crew was waxing the gymnasium floor and performing other renovation projects near the gymnasium. The renovations did not include any electrical work. Among the items moved into the hallway was a Frigidaire brand compact refrigerator, manufactured by Electrolux. Also located in the hallway was an electrically-powered water fountain, several plastic mats, a plastic cart and a small metal can. Trained fire investigators opined that the fire “originated in the area of the portable refrigerator” and the Fire Incident Report listed the cause of ignition to be a “failure of equipment” and noted that the source of the heat was electric arcing.
The local fire marshal was deposed and he opined that the fire had no obvious cause. He stated that, although the fire marshal did not believe that the cause of the fire was spontaneous combustion, they could not rule it out as a possibility.
Several weeks after the fire, SEA, Ltd. was hired on behalf of Plaintiff. SEA opined that the fire originated inside the Frigidaire compact refrigerator. According to SEA’s report, an electrical arcing event, triggered by defect in the conductor of the refrigerator, ignited nearby combustible materials. SEA reported considered, and eliminated, other potential sources of ignition, such as the water fountain’s power cord and the refrigerator’s power cord.
Tom Bajzek, hired on behalf of Defendant Electrolux, criticized SEA’s handling of the investigation. Electrolux was not notified of the fire for several months and was not given the opportunity to have a meaningful inspection of the fire scene, according to Mr. Bajzek. Bajzek was also critical of SEA’s handling of the evidence, specifically the failure to preserve the metal can, the comingling of the contents of the can and the debris from outside the can, leading to an incomplete analysis of the can’s contents. Bajzek opined that Plaintiff’s experts had violated ASTM Standard E860 and E1188 and NFPA 921.
After a short discussion of the rules that apply to summary judgment, the Court found that Plaintiff’s experts, as experienced fire investigators, must have known that the metal can could become an issue in future litigation. Several fire marshals’ had determined that spontaneous combustion could not be ruled out. Plaintiff’s experts should have known that this potentially vital evidence should have been preserved. Furthermore, Plaintiff’s expert was well aware of his obligations under relevant fire investigation standards and cited to NFPA 921, finding that those standards govern Plaintiff’s experts’ professional responsibility and ethical obligations. “Plaintiff’s experts had the authority to remove items from the scene of the fire, but chose not to collect all physical evidence that might have been of value. Defendant had not yet been informed of the fire, and had no opportunity to examine the scene or ask for certain items to be removed. It is clear that there was spoliation of evidence by Plaintiff’s experts that was potentially valuable in determining the cause of the fire. Plaintiff bears full responsibility for this spoliation.”
However, after finding that spoliation had occurred, and further finding that Defendant had been prejudiced, the court held that a grant of summary judgment in favor of Defendant would be unfair to Plaintiff, as too onerous a sanction. Instead, Defendant’s request for an adverse spoliation inference as to the metal can was granted.