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Fourth Circuit Discusses Impact of Spoliation
FOURTH CIRCUIT DISCUSSES IMPACT OF SPOLIATION
In Silvestri v. G.M., No. 99-2142, the Fourth District Court of Appeal reviewed the trial court's granting summary judgment for the defendant based on a finding of spoliation of evidence. On November 5, 1994, Mark Silvestri was involved in a single vehicle crash in Preble, New York. Driving a 1995 Chevrolet Monte Carlo at a speed estimated by experts for both sides to be approximately 72 mph, Silvestri lost control of the vehicle on a curve and slid off the road. His car slid sideways through a split-rail fence and, moving now at 67 mph, as calculated by Silvestri's expert, obliquely hit a utility pole with the front center of his car. The car spun around the pole, which acted as a fulcrum, and continued for some distance beyond into the front yard of a residence. The oblique impact with the utility pole caused a V-shaped depression in the front center of the automobile approximately 18 inches deep, as estimated by Silvestri's expert, causing the frame of the vehicle to buckle and moving the utility pole at ground level about four inches. The vehicle's air bag did not deploy during the accident and, although Silvestri was wearing his seat belt, he sustained severe facial lacerations and bone fractures and is disfigured as a result. At the time of the accident, the 1995 Monte Carlo was new, registering only 5,627 miles on its odometer.
Silvestri retained two accident reconstruction experts who examined the car and visited the accident scene approximately one week after the accident. They inspected the scene and took measurements and photographs. They also retained a land surveyor who prepared a survey of the scene. Based on the experts' inspections of the car, the skid marks, the accident scene, the survey, and computer calculations, they each rendered the opinion that when the front of Silvestri's vehicle obliquely hit the utility pole, the impact to the front of the vehicle was equivalent to a 24 mph head-on collision with a fixed barrier--the "barrier impact speed." They explained that the barrier impact speed essentially measures the head-on rate of deceleration at the front of the vehicle, taking into account the "give" in both the object into which the car crashes and the car itself as it crumples. They calculated the vehicle's barrier impact speed by taking into account the forward speed of the vehicle, the angle of impact with the utility pole, and the extent of damage to the front of the vehicle.
These experts concluded that the failure of the air bag to deploy at a barrier impact speed of 24 mph was inconsistent with General Motors' statement in the Monte Carlo's owner's manual about when the air bag would deploy. The owner's manual for the vehicle provides: When should the air bag inflate?
The air bag is designed to inflate in moderate to severe frontal or near-frontal crashes. The air bag will inflate only if you're going fast enough. For example, if your vehicle goes straight into a wall that doesn't move or deform, the air bag will inflate at between 9 and 15 mph. . . . However, if your vehicle strikes something that will move or deform, such as a parked car, your air bag will inflate only at a higher speed. The air bag is not designed to inflate in rollovers, side impacts, or rear impacts, because inflation would not help the occupant.
Finally, these experts concluded that Silvestri's severe facial injuries would not have occurred had the air bag functioned properly. In reaching that conclusion, they rejected as inaccurate an accident reconstruction provided by General Motors suggesting that Silvestri's face was struck by a fence rail.
Because Silvestri allowed his insurance company to repair and sell the vehicle after the investigation by his experts, General Motors was not able to inspect the vehicle only after the repairs were completed. General Motors' air bag inspector analyzed the information from the air bag's "sensing and diagnostic module," which constantly monitors and diagnoses the air bag's components, including its electronic sensors that cause the air bag to deploy during certain collisions, and found that the module had not recorded any faults. He concluded that the air bag system performed as designed during Silvestri's accident and that the air bag was not designed to deploy under the conditions of the accident. Recognizing that the air bag system was "designed to deploy in a frontal barrier impact of 9 to 14 miles per hour," General Motors' expert formed an opinion that because the front of the vehicle had struck the utility pole obliquely or sideways, the car's change in speed and its sideways direction did not produce the conditions under which the air bag was designed to deploy.
General Motors urges us to affirm the judgment of the district court on the basis of Silvestri's alleged spoliation of evidence because he repaired the automobile without giving General Motors an opportunity to inspect it before the repairs. The court declined, however, to reach that issue because even if the doctrine of spoliation applies to the circumstances of this case, the district court has broad discretion to address the matter, and in this case, the district court did not address spoliation in its ruling on General Motors' motion for summary judgment.
The district court granted General Motors' motion for summary judgment, concluding that without the testimony of a qualified air bag expert, Silvestri could not offer competent testimony to make out a prima facie case that the air bag was defective. The Fourth Circuit reversed the summary judgment and remanded because, under applicable New York law, a plaintiff may make out a prima facie products liability case circumstantially without direct evidence of a product defect.
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