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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Seventh Circuit Rejects Spoliation Claim


In J.S. Sweet Company v. Sika Chemical Corporation, No. 04-2871, (March 16, 2005), the Seventh Circuit Court of Appeals reviewed a suit where the plaintiff alleged the tort of spoliation of evidence and breach of contract. The district court had granted summary judgment for the defendant. The Court of Appeals agreed.

The case involved a bid for repair work to the surface of a bridge. J.S. Sweet was the general contractor which bid was accepted. It was to remove the top quarter inch of concrete and seal the surface with an epoxy overlay. Sika was a chemical manufacturer who produced the epoxy which was sold to the general contractor through a third party. A year after installation the epoxy began to delaminate.

A Sika salesman inspected the bridge. He took photographs and picked up some loose pieces of epoxy. He did not keep them nor did he give them to anyone. No tests were done nor any special equipment brought to the site. He wrote a one page memorandum and forwarded to his supervisors. J.S. Sweet later inspected the bridge and photographed it. J.S. Sweet was not paid completely for its work forcing it to sue the Commission of Indiana. During that litigation Sweet never requested the Sika documents. The trial court eventually found for J.S. Sweet in that litigation.

J.S. Sweet later sued Armstrong claiming he disparaged J.S. Sweet's work. During that litigation J.S. Sweet found out about the Sika inspection and sought those photographs and memorandum. Sika could not find that material. J.S. Sweet later sued Sika for spoliating evidence and breach of contract.

The court reviewed applicable Indiana law on the independent tort of spoliation of evidence. Under Indiana law that tort requires the person who lost the evidence to have a duty to preserve the material. There was no duty to preserve evidence because there was no breach of contract, agreement or special relationship. The court found in part there was no duty because the epoxy was purchased through a third party. Moreover there was no foreseeability on Sikma's part because the photographs and report were common place. Sika could expect J.S. Sweet to do its own homework and come to its own conclusions. Lastly, public policy concerns dictate against imposing liability here due the significant burden placed on parties such as Sika.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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