Investigation of the Automobile Product Liability Case

The Danger of a Poor Investigation: Spoliation of Evidence

A basic adage in automobile product liability cases (with a few rare exceptions) is “no product, no case.” Therefore, if one wishes to pursue a products liability case against an automobile manufacturer, it is necessary to preserve the automobile the most important piece of evidence in the case.

Obviously, if an attorney has been hired to investigate potential sources of compensation for an injured client and if it appears that a vehicle defect may have contributed to the client's injuries, his duty should include inquiry into a potential products case. If the vehicle is not preserved and a product case is later filed after the vehicle is gone, the manufacturer will argue that the case should be dismissed due to spoliation of evidence. Under these circumstances, if the vehicle is later determined to have contributed to the client's injuries, the attorney may face a possible action for malpractice by the client. Worse yet, with the recent trend in Florida of cases dealing with spoliation of evidence, an attorney who fails to preserve a vehicle may be liable for the client's damages even if it is only arguable that the product contributed to the injuries.

Therefore, when it appears that a client's injuries may have been caused by a defective automobile, it is imperative that the attorney take immediate action to preserve the vehicle and other critical evidence. The basic steps to preserve the vehicle and evidence when there is the possibility of a products case include the following and will be discussed below:

1. Preservation of the accident vehicles;

2. Preservation of the accident scene;

3. Preservation of any scene debris or other evidence; and

4. Witness interviews.

Preservation of the Accident Vehicles

The first step after identifying a potential products case is to ask the question, “where is the vehicle?” If the client doesn't know, and the crash was recent, the vehicle can usually be found after a few calls to the property insurance carrier, the investigative agency, or the vehicle's owner. Immediately after locating the vehicle, the attorney should fax what we call a “Do Not Destroy” letter to the facility where the vehicle is being kept. The letter will put the recipient on notice that the vehicle is evidence in a potential product liability suit, and that the vehicle must not be altered, destroyed, or released. The letter should also convey a request to take immediate possession of the vehicle and agree to pay for the salvage value if necessary. A duplicate copy should be faxed to the carrier and to the vehicle owner. The attorney should then follow up the letter with a phone call to make arrangements to take possession of the vehicle.

The importance of acting quickly to preserve the vehicle cannot be overemphasized. Most property insurance adjusters have strict procedures which require them to move their wrecked vehicles through the system as quickly as possible to save on storage costs. Often, unless the carrier receives a “Do Not Destroy” letter, the vehicle will be sold and scrapped within 30 days after the crash. Therefore, it is imperative that the vehicle be immediately preserved.

Once arrangements have been made with the carrier, the attorney must take physical possession of the vehicle. The vehicle should be towed on a dolly to a locked facility. No one other than the plaintiffs' firm should have access to the vehicle. This avoids needless problems with the chain of custody of the evidence and other potential issues of evidence tampering, which sometimes arises when multiple parties in a suit have shared access to a vehicle.

The facility where the vehicle is stored must be secure, covered, and protected from the elements. Unless the vehicle is kept in such a facility the attorney may again face allegations of malpractice for spoliation of evidence. Exposure to weather causes vehicles to rust and deteriorate which often alters critical evidentiary elements. For example, a single hair in a headliner, which might be the crucial fact in identifying the cause of a client's injury might not be preserved if left exposed to wind and weather. Or, as another example, exposed steel belts in a tread separation case can quickly corrode if exposed to moisture, completely losing their evidentiary value. Mini-warehouse units are always a safe bet, unless the firm has access to a larger secure facility.

As with the accident vehicle, any other vehicles involved in the crash must be similarly preserved. This often gets expensive, especially when one or more of the vehicles in a crash were pulling trailers, boats, or campers. Nevertheless, unless all of this evidence is preserved in the same condition it was in at the time of the accident, it may be impossible to later prove that the accident was caused by an automotive defect.

Preservation of the Accident Scene

Preserving the scene in a potential products action requires a more extensive process than that used by most local investigators, police agencies and even the Florida Highway Patrol. Typically, unless there is a fatality, an F.H.P., crash report will only include a sketch of the scene and a skeletal outline of the facts. Even with a Homicide Investigation Report there is RARELY sufficient documentation to gather the level of detailed information which will be required by the better experts who testify for plaintiffs against the automotive industry. Similarly, most local accident reconstruction experts will fail to adequately document the scene with the level of detail and specificity needed by higher-end design engineering experts.

Of utmost importance to properly preserve the scene is the timing of the site visit. Every day that passes after an accident, evidence is lost. As soon as the attorney determines that there is a possible auto products case a team should be sent to the scene to document all of the evidenceboth on-road and off-road. The team should be familiar with survey equipment and use the equipment to carefully measure all on and off-road gouge marks, yaw marks, skid marks, etc. … The scene should also be carefully surveyed both at the immediate crash site and well upstream of the crash.

Preservation of Scene Debris or Other Evidence

All remaining physical evidence or vehicle debris, which is located at the scene, should be carefully collected, bagged, marked, and coordinated on the survey. This evidence should also be documented on a chain of custody chart with the initials of the person responsible for collecting and documenting the evidence noted.

For certain cases, such as a tread separation case, there should be an exhaustive search for any missing component parts that may have contributed to the accident. A piece of missing tread for example, may have been easily missed by the F.H.P., but found a day later by a careful investigative team.

Finally, the entire scene should be thoroughly photographed and videotaped. There should be at least one photo taken of each piece of evidence or debris that is found at the scene prior to its collection. The photograph should be adequately marked or taken with an identifying number in the photograph to enable easy correlation to the survey. This will reflect the location at the scene where the evidence is found. When filed, all photographs should be clearly marked and dated with the name of the person who took the photos clearly identified.

Witness Interviews

Witness interviews should also be conducted as soon as possible. The investigating officers who were present on the scene following the accident must be interviewed. It is most helpful to have the investigating officers meet the attorney at the scene to walk through their recollection of the events and the evidence. If possible, it is most beneficial to obtain recorded statements. Similarly, interviews and recorded statements from all other eyewitnesses should be obtained if at all possible.

Disposition of Evidence

An attorney must also take precautions in disposing of vehicles and evidence both after the successful conclusion of a case and in other cases when an attorney declines to prosecute a case after the initial investigation. Under both circumstances the attorney should fully explain the situation to the client, explain that the evidence will be released unless the client wishes to make arrangements to have the evidence preserved and that, if the evidence is not preserved, the client will be unable to further pursue a products case. To the extent that there are other victims of the same crash, the attorney should also put the other potential victims on written notice before evidence is released.

Conclusion

Personal injury cases that involve potential product liability issues are fraught with peril for the attorney who fails to diligently preserve and handle evidence. However, with a proper investigation, not only will the client's potential case be preserved, but the plaintiff's attorney will have a huge information advantage over the defendant should a lawsuit be filed.