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Over the next several months, we are going to be publishing a series of posts that are intended to provide an overview of the process of handling a products liability case from the consumer attorney’s perspective. These posts are going to cover everything from pre-suit investigation through litigation.

The first blog post in this series is about evidence preservation. Evidence preservation is an issue that must be addressed from the very beginning of the investigation as the failure to properly preserve the defective product and other relevant evidence can result in disastrous consequences for the client. These consequences include being prevented from presenting certain evidence at trial or the jury being instructed that the defendant is entitled to an inference that the product was not defective. Federal Ins. Co. v. Allister Mfg. Co., 622 So. 2d 1348, 1352 (Fla. 4th DCA 1993) (“Precluding any testimony from the expert who lost the evidence, and/or instructing the jury that the manufacturer was entitled to an inference that the lost evidence was not defective would also be within the court’s discretion.”). Even worse, the court might dismiss the case with prejudice. See, e.g., Torres v. Matsushita Elec. Corp., 762 So. 2d 1014 (Fla. 5th DCA 2000) (holding that the trial court did not abuse its discretion by dismissing the plaintiff’s complaint with prejudice where the vacuum that allegedly caught fire due to a design defect was “thrown out with the garbage” while being stored in the plaintiff’s attorney’s garage).

Our office has therefore adopted several protocols to ensure that the evidence is preserved. The first step we take is to determine both who is in possession and who is in control of the evidence. Sometimes the person who is in possession of the evidence is also the owner. For instance, if the client was harmed by a defective blender, he might very well still have that blender in his kitchen. In these cases, the client should be advised to preserve the evidence so that he is not forced to face the consequences discussed above. On the other hand, if the client was injured by a defective automobile, the automobile may now be in the possession of a tow yard. In addition, if the vehicle’s owner had collision coverage, the insurance company may try to move the vehicle to a different tow yard.

Once we have determined that a third party is in possession of the evidence, we immediately put them on notice that the property in their possession is evidence that must be preserved. To this end, we have prepared a variety of letters that can be utilized depending upon the identity of those who possess and own the evidence. You can click on the following links to download examples of letters directed to a tow yard and a vehicle owner.

Putting those who possess and own the evidence on notice may also be necessary in order to preserve your client’s rights should the evidence be subsequently destroyed. For instance, the 3d DCA rejected a third party spoliation claim against an employer that did not preserve a forklift that crushed the plaintiff and rendered him a paraplegic where the plaintiff never asked the employer to preserve the forklift. Perez v. La Dove, Inc., 964 So. 2d 777 (Fla. 3d DCA 2007). The court noted that “the purpose of a spoliation claim generally is not served by permitting suit where no notice is given.” Id. at 779. Moreover, the court rejected the argument that the notice requirement is inequitable to plaintiffs who are “hampered in their ability to request preservation,” reasoning that the spoliation claim is intended to deter “miscreant defendants,” and that “[t]his purpose is served only when an actual duty owed by a defendant to a plaintiff has been willfully or recklessly disregarded.” Id. at 780.

It is important to remember that it is often necessary to preserve more than just the defective product that caused the injury to the client. Our firm attempts to preserve every vehicle involved in an accident with a defective vehicle. We do this because it is often necessary to have experts examine not only the defective vehicle that injured the client, but also the other vehicles involved in the accident to determine such critical facts as the speed they were travelling. This type of information is crucial, for example, in crashworthiness claims.