FILED
OCTOBER 1,2015
I n the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
RAYMOND COOK and ARLENE )
COOK, husband and wife and the marital ) No. 32000-6-111
community comprised thereof, )
)
Appellants, )
)
v. ) PUBLISHED OPINION
)
TARBERT LOGGING, INC., a )
Washington Corporation, and SHANE )
BEAN and JANE DOE BEAN, husband )
and wife and the marital community )
comprised thereof, and STEVENS )
COUNTY, a local governmental entity, )
)
Respondents. )
SIDDOWAY, C.J. - The jury trial of Raymond and Arlene Cook's claims arising
out of a collision between a pickup truck driven by Mr. Cook and a logging truck driven
by an employee of Tarbert Logging Inc. resulted in a defense verdict in favor of Tarbert,
its driver, and Stevens County. The Cooks appeal, arguing that the trial court abused its
discretion in making erroneous spoliation-based rulings that excluded the testimony of
their expert on the key issue of the drivers' speeds at the time of impact, allowed defense
experts to testify to the drivers' speeds using the Cooks' expert's photographs and
measurements, and allowed the defense to invite a negative inference from the fact that
the Cooks engaged an expert whom they did not call to testify.
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
The trial court erred in concluding that Washington has recognized a general duty
to preserve evidence; it has not. For that reason, and because only intentional spoliation
logically supports an adverse inference, the trial court erred when it ruled in limine that it
would admit evidence and allow defense argument in support of such an inference. The
trial court also abused its discretion in ruling in limine that the defense could present
evidence to support argument of what was tantamount to a missing witness inference
from the Cooks' failure to call their expert witness on speed to testify at trial.
The error is reversible except as to Stevens County, which was sued for its
negligent plowing of the road. Since the jury's special verdict found that the county was
not negligent, any error in the evidence and argument on speed-which bore, in the
county's case, only on comparative fault-was harmless as to the county.
We affirm the judgment in favor of Stevens County, reverse the judgment in favor
of Tarbert and its driver, and remand for a new trial.
FACTS AND PROCEDURAL BACKGROUND
For the judges on this panel and many participants in the trial below, this case
brought to our attention for the first time the existence of event data recorders in modem
cars and trucks that not only continually monitor data about a vehicle's operation but also
can retain data about its operation in the seconds before a crash. In this case, the event
data recorder was an airbag control monitor CACM) in Raymond Cook's 2006 GMC
Sierra pickup truck.
2
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
As explained by the experts who testified at trial, the airbag icon that lights up on
the dashboard during a vehicle's operation indicates that the ACM is working, streaming
data about the key aspects of the vehicle's operation that inform whether to trigger the
explosion that will deploy airbags. Among operating information continually being
streamed through an ACM are the vehicle's speed, the engine's speed, the percent
throttle, the brake switch circuit status, and the driver's seat belt status. An ACM is
programmed with an algorithm that determines within milliseconds whether the operating
information collectively signals a crash, in which case airbags will be deployed. After
deployment, the ACM retains information that was streaming through it for up to five
seconds "before algorithm enable." Clerk's Papers (CP) at 14. If the vehicle is one for
which software and hardware for reading retained data is available to the public, then
according to experts in the trial below, the data is "very useful" in determining precrash
speed. Report of Proceedings (RP) (Aug. 27, 2013) at 1207. 1
In this case, Mr. Cook's pickup truck collided with a Tarbert logging truck being
driven by Shane Bean on a primitive road 2 in Stevens County one morning in February
1 We note that there is overlapping numbering in some of the reports of
proceedings.
2 "Primitive roads" are roads that are not classified as part of a county primary
road system, have a gravel or earth driving surface, and have an average daily traffic of
100 or fewer vehicles. RCW 36.75.300. By statute, counties are relieved of certain road
design, signage, and maintenance standards with respect to primitive roads. Id.
3
No. 32000-6-111
Cook v. Tarbert Logging, Inc. et al.
2009. It is undisputed that the accident occurred on a particularly narrow stretch of the
road on a blind curve, and that packed snow and ice on the road was very slippery that
morning.
Mr. Cook was badly injured in the accident, and his pickup truck was totaled. He
retained a lawyer to explore the possibility of legal action. By March 17,2009, American
Forest Casualty Insurance Company, which insured Tarbert, had received a letter from
Mr. Cook's lawyer F. Day Ie Andersen providing notice of a claim. A claims
administrator for the insurer acknowledged the claim on March 18 and stated that a
liability investigation was underway.
At the time, the GMC truck-which was registered in the name of Mr. Cook's
sister, Gina Cook, and was owned by her limited liability company-was being stored in
a shed belonging to Mr. Cook's son, Joshua. 3 Mr. Andersen told Joshua to maintain the
vehicle as it was and to keep it indoors until further notice. On March 25, 2009, Mr.
Cook and Mr. Andersen traveled to the shed with Dr. Richard Gill, a mechanical engineer
and human factors specialist retained on Mr. Cook's behalf by Mr. Andersen, to inspect
the truck. Dr. Gill took crush measurements and photographs.
Dr. Gill did not remove the ACM from the truck or download any data from it.
When later deposed, he testified that he was familiar with event data recorders such as the
We refer to Joshua by his first name to avoid confusion with his father. We
3
mean no disrespect.
4
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
ACM and with "the improvements that have been made over time with them[,] ... the
variability in terms of the types of data that's recorded[, and] ... the limitations of them,"
but that he was not qualified to download their data. CP at 284. He testified that he had
become more familiar with them between 2009 and the 2012 date of his deposition, but
that he had worked on cases even before March 2009 in which one of the experts had
downloaded data from an event data recorder. He testified that while he was not
qualified to download such data, he "certainly considered it both pro and con" when the
data had been downloaded by someone else. Id.
In February 2010, Mr. Andersen served Stevens County with the statutorily
required presuit notice that the Cooks asserted a tort claim against the county for
negligent plowing of the road. See RCW 4.96.020. The Cooks contended that the county
had failed to plow a swath through the snow and ice that was as wide as the roadway,
leaving the plowed roadbed too narrow for the traffic for which the road was designed.
The county did not acknowledge liability in response to the statutory notice, and in
December 2010 Mr. Cook filed his complaint for negligence against Tarbert, Mr. Bean,
and Stevens County. 4
4 Tarbert's counsel represented Mr. Bean at trial. For simplicity, we will refer to
Tarbert and Mr. Bean collectively as "Tarbert" in discussing their participation in the
litigation.
5
No. 32000-6-II1
Cook v. Tarbert Logging, Inc. et al.
Stevens County initially defended with a motion for summary judgment, evidently
based on the "primitive" status of the road on which the accident occurred. After that
motion was denied, the county asked the Cooks for the opportunity to examine the GMC
pickup truck, through electronic mail sent by the county's lawyer in February 2012.
By the time of the county's request, the pickup truck had been "parted out" and
sold. In a deposition later taken of Joshua, he testified that he could not recall precisely
when he sought permission from Mr. Andersen to get rid of the truck. He provided two
inconsistent answers that were never clarified. Based on those inconsistent answers, his
parting out and selling of the truck took place either during a one-year period that began
in the winter of 2009-1 0 or during a one-year period that began in August or September
2010.
Dr. Gill prepared a written report in September 2012 that included his opinion that
Mr. Cook was traveling at a slower and safer speed than Mr. Bean at the time of the
accident. Accusing the Cooks of spoliation, Stevens County filed a motion asking the
trial court to preclude Dr. Gill from offering opinion testimony about Mr. Cook's speed
before and at the time of the collision and to instruct the jury that the parting out of the
pickup mandated an inference that the evidence, had it been preserved, would have been
unfavorable to the Cooks' position. Tarbert joined in Stevens County's motion.
In support of the spoliation motion, Stevens County and Tarbert contended that
Mr. Cook's lawyer gave Joshua permission to part out the truck and sell it for no good
6
No. 32000-6-111
Cook v. Tarbert Logging, Inc. et al.
reason, aware that the defendants would probably want to examine it. They also
contended that Dr. Gill's awareness of the ACM as a source of valuable information on
speed should be imputed to the Cooks and their lawyer.
The Cooks argued that they retained the pickup for years, that neither defendant
sent them a litigation hold or otherwise indicated interest in examining the pickup during
the years it was retained, and that the defendants had not identified any duty on the part
of Mr. Cook to retain it. They also argued that the ACM was not as critical as claimed by
the defendants, since one defense expert had already prepared a report expressing
defense-favorable opinions on the drivers' speeds based on other available evidence. 5
The court concluded that the Cooks had a duty to retain the pickup truck,
explaining in its oral ruling that the duty arose because Dr. Gill had the opportunity to
examine the truck and ~~[i]t would likely be a quick jump to recognize that on down the
line at some point the ... defense might want to have the opportunity to have an
examination independently conducted of the vehicle and more specifically as to the
[ACM]." RP (Feb. 8 & Aug. 19,2013) at 33-34. It found no duty on the part of the
5 Mr. Cook also argued below and argues on appeal that the truck belonged to his
sister's company, not to him. As pointed out by the defense, Mr. Cook was the president
of his sister's company, the truck was assigned to him, and he described it as "my truck."
RP (Aug. 26, 2013) at 971-72. Even more importantly, after the collision, family
members relied in all of their postaccident dealings with the totaled truck on Mr.
Andersen's directions. Substantial evidence supported the trial court's implicit
conclusion that the Cooks and their lawyer had sufficient control over the totaled truck to
bear responsibility for the disposal. We do not consider this argument further.
7
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
defendants "to demand access instantly to the item." RP (Feb. 8 & Aug. 19,2013) at 34.
While the court stated it did not find any purposeful intentional destruction, "common
sense should have caused the parties on the plaintiff side to say, this item needs to be
preserved and there needs to be some notice to the other side." Id. It granted the
defendants' motion to exclude Dr. Gill's opinions on the drivers' speed at the time of the
collision. Opinions Dr. Gill had expressed on other matters were not excluded.
The findings, conclusions, and order later entered by the court included its
determination that "[p]laintiffs did not act in bad faith or with deliberate intention to
destroy the evidence" and its conclusion that they were nonetheless culpable for violating
a duty to preserve the evidence because they were "aware of its importance and
relevance." CP at 123. The court reserved ruling on whether it would give a spoliation
instruction to the jury.
Among matters considered at a pretrial hearing on August 19,2013, and revisited
during trial were two spoliation instructions proposed by the defense and a request by
Tarbert and Stevens County that they be allowed to question Mr. Cook not only about
disposing of the truck but also about retaining Dr. Gill and Dr. Gill's examination of the
truck. Mr. Cook had cross moved for an order in limine precluding any mention of Dr.
Gill, whom the Cooks decided not to call as a witness.
8
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
On August 19, Mr. Andersen explained his concern about the defendants' request
to tell the jury that an expert (who would not appear at trial) had been hired by the Cooks
and was the only expert who had examined the truck before it was parted out:
[M]y biggest problem is, Your Honor, what basically defendants are trying
to do is create an inference that Dr. Gill's opinions were bad, because we
can't address the nature of his opinions. I can't say: Well, he was going to
say that Tarbert and Stevens County were at fault, because those opinions
have been excluded. So then to sit there and say plaintiffs had an expert,
where is he, where' s the truck? ...
There's going to be an inference that he created a negative opinion
about the case. I don it know how you remove that by saying this
gentleman examined the truck, the truck was destroyed, and now Mr. Gill is
not here to testify about it. Even if they don't say Mr. Gill is not here to
testify about it, the jury is going to recognize that this person who examined
the truck never testified. So basically it's highlighting the testimony of a
witness who wasn't called, whose opinions have been excluded under order
of limine, and who I'm prohibited from addressing whatsoever because of
the order in limine.
RP (Feb. 8 & Aug. 19,2013) at 68. The trial court reserved ruling on whether the
defense would be allowed to question Mr. Cook about his engagement of an expert,
stating that it would be revisited before the conclusion of Mr. Cook's testimony.
That issue and the issue of whether a spoliation instruction would be given were
revisited on August 22, at which point Mr. Andersen proposed what he "hop[ed would]
be a resolution" by stating he would not object to the defense examining Mr. Cook about
the fact that the truck was parted out before the lawsuit was filed and before the defense
had an opportunity to inspect it. RP (Aug. 22, 2013) at 762. He conceded the jurors
9
No. 32000-6-111
Cook v. Tarbert Logging, Inc. et al.
might draw an adverse inference on their own. Mr. Andersen's "main difficulty," in the
parlance of the court, was with the giving of a spoliation instruction and any mention of
Dr. Gill. RP (Aug. 22, 2013) at 763. 6
The trial court gave extensive consideration to whether to instruct on spoliation
and ultimately decided not to. It concluding that it was sufficient that Dr. Gill's
testimony was excluded and the defense would be free to elicit testimony from parties
concerning the existence of the ACM, the authorization of its disposal by agents ofthe
plaintiff, and the fact that the defense never had the chance to examine it. Mr. Andersen
acknowledged this to be a "fair resolution." RP (Aug. 22, 2013) at 773.
But then, the following exchange occurred:
[STEVENS COUNTY'S LAWYER]: Point of clarification, Your
Honor.
THE COURT: Yes, sir.
[STEVENS COUNTY'S LAWYER]: May we establish that an
expert hired by the plaintiff examined the vehicle before the vehicle was -
THE COURT: Yes.
[STEVENS COUNTY'S LAWYER]: -- parted off? Thank you.
THE COURT: Any other questions on that, Counsel?
MR. ANDERSEN: I have a question, Your Honor. If, in fact, they
can establish it, then I would think the plaintiff would have the right to
6 Stevens County argues that with this proposal, Mr. Andersen created invited
error. Br. ofResp't Stevens County at 28. But as discussed in the analysis section
below, the Cooks' assignments of error are to the threshold finding of spoliation and to
the court's in limine rulings permitting evidence and argument suggesting what amounted
to a "missing witness" inference. The Cooks preserved error in the spoliation finding,
and it was not invited error for Mr. Andersen to try to persuade the court to impose what
he considered to be the least harmful consequences to his clients.
10
No. 32000-6-II1
Cook v. Tarbert Logging, Inc. et al.
indicate to the jury that the expert's opinions were not negative towards Mr.
Cook. Because the -
... [b]ecause if the parties are allowed to say the plaintiff hired an
expert to inspect this vehicle, the jury is going to say, well, where is this
expert[?] So, there's clearly going to be some negative inference derived
from the plaintiff to indicate that the expert is going to have a negative
opinion against the plaintiff.
THE COURT: I would disagree with that. I've already made the
ruling on Mr. Gill, and there won't be any reference to Mr. Gill apart from
the fact that there was an expert who evaluated the vehicle at the instance of
the plaintiff.
RP (Aug. 22, 2013) at 773-74.
Relying on the trial court's ruling, both defense lawyers established through cross-
examination of Mr. Cook that an expert for the Cooks had examined the truck and taken
measurements on the Cooks' behalf at a time when they knew they were going to bring a
lawsuit. Anticipating the examination, Mr. Andersen even touched in direct examination
on the fact that "someone" had looked at the truck after the collision and had taken
measurements. RP (Aug. 26, 2013) at 1023. Mr. Cook's testimony established that a
couple of years after the accident, Joshua had sold the truck by parting it out.
In closing argument, Tarbert's lawyer argued:
Also, we learned, going chronologically, something else happened in
March of 2009. Josh Cook was storing this truck and an expert came out
and took photos and measurements, an expert who didn't download the data
from that airbag control module that would have told you exactly how fast
Ray Cook was going in the five seconds leading up to the impact. The
lawsuit was later filed in December of 20 10, and the Cook family disposed
of the pickup, parted it out, sold it off, before either of the defense experts
were able to access it and download that airbag control module data.
11
No. 32000-6-111
Cook v. Tarbert Logging, Inc. et al.
RP (Aug. 28,2013) at 1308.
In his closing argument, Stevens County's lawyer mentioned the testimony of the
defense experts that Mr. Cook had been driving too fast, and then told the jury:
And contrary to that, plaintiff hasn't called an expert to tell you what
caused this accident. Plaintiffs called Mr. Keep to tell you how the road
should be plowed, but there's not one bit of expert testimony from anyone
in this trial to suggest that the accident was caused by anything other than
Mr. Cook's speed.
Now, you have heard some testimony about an expert witness, and
Ms. Bloomfield went over this and I'm not going to belabor the point, but
in March of 2009 you heard that Mr. Cook had an expert examine his
vehicle. You heard that Mr. Cook, in March of2009, knowing that he was
going to bring a lawsuit, had the expert photograph his vehicle and take
measurements of the crush depth of his vehicle. And you recall I asked Mr.
Hunter, I said, Why would an expert take measurements of the crush depth?
And he told you that's how experts determine speed upon impact.
You also heard that Mr. Cook's vehicle was equipped with an airbag
control module when the expert reviewed or looked at that truck back in
March of2009. You heard that that airbag control module would have told
us exactly how fast Mr. Cook was going the five seconds before this
collision and at the point of impact. But unfortunately, as you also heard,
that truck, after plaintiff's expert examined it, was disposed of. It was
parted off and sold, so the defense experts didn't have the opportunity to
look at that airbag control module. When you go to the jury room to
deliberate, you can take whatever inference you want from Mr. Cook's
actions in having an expert examine that vehicle and then sell that vehicle.
RP (Aug. 28, 2013) at 1331-32.
The jury returned a defense verdict. The Cooks appeal.
12
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
ANALYSIS
The Cooks contend that the trial court erred or abused its discretion at three stages
in addressing the spoliation issue. They argue first, that the court abused its discretion
when it assumed, in error, that the Cooks had a duty to preserve the evidence and found
spoliation as a result; second, that it abused its discretion by allowing the defendants to
present evidence about a nontestifying witness, creating an adverse implication from his
absence; and third, that it abused its discretion and compounded the harm when it refused
to allow the Cooks to rebut the false inference by demonstrating that their expert's
opinions would have supported their claim. Both defendants deny any error or abuse of
discretion but argue that if one occurred, it was harmless.
Whether a duty to preserve evidence exists is a question of law . We review
questions of law de novo. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 880,
73 P.3d 369 (2003). We review a trial court's decision imposing sanctions for spoliation
for abuse of discretion. Homeworks Constr., Inc. v. Wells, 133 Wn. App. 892,898, 138
P3d 654 (2006). A trial court abuses its discretion if its decision is manifestly
unreasonable or based on untenable grounds or untenable reasons. Teter v. Deck, 174
Wn.2d 207, 215,274 P.3d 336 (2012). Untenable reasons include errors oflaw. Estate
o/Treadwell v. Wright, 115 Wn. App. 238,251,61 P.3d 1214 (2003).
We first address the Cooks' arguments in the order stated, and finding error, we
then address whether it was harmless.
13
No. 32000-6-111
Cook v. Tarbert Logging, Inc. et al.
I. The spoliation finding and sanctions
Did the Cooks commit sanctionable spoliation?
Washington cases have not recognized a general duty to
preserve evidence
In Henderson v. Tyrrell, this court cited the definition of spoliation as '" [t]he
intentional destruction of evidence'" but at the same time observed that jurisdictions
modernly treat the term as "encompass[ing] a broad range of acts." 80 Wn. App. 592,
605,910 P.2d 522 (1996) (quoting BLACK'S LA W DICTIONARY 1401 (6th ed. 1990)).
Adopting an approach for determining when spoliation is sanctionable from an Alaska
case, Sweet v. Sisters ofProvidence in Washington, 895 P.2d 484 (Alaska 1995),1
Henderson held that the "severity of a particular act (in terms of the relevance or
importance of the missing evidence or of the culpability of the actor) determines the
appropriate remedy." 80 Wn. App. at 605. Its subsequent discussion of culpability
illuminates the "range of acts" the court recognized as spoliation.
7 Henderson adopted only Sweet's approach to determining a sanction; it explicitly
refused to reach Sweet's identification of a rebuttable presumption as an appropriate
remedy. 80 Wn. App. at 612 n.8. Washington courts have preferred instructing a jury on
a permissible inference rather than a presumption in the analogous context of missing
witnesses. Wright v. Safeway Stores, Inc., 7 Wn.2d 341, 345-46, 109 P.2d 542 (1941);
State v. Davis, 73 Wn.2d 271,281,438 P.2d 185 (1968), overruled on other grounds by
State v. Abdulle, 174 Wn.2d 411,275 P.3d 1113 (2012). The issue is not presented in
this appeal, but we note our disagreement with the suggestion in Marshall v. Bally's
Pacwest, Inc., 94 Wn. App. 372, 381, 972 P.2d 475 (1999) that Henderson approved a
rebuttable presumption as a remedy for spoliation.
14
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
The culpable conduct relied on in seeking a sanction must be connected to the
party against whom a sanction is sought. Id. at 606. In Henderson, the court applied the
"connection" requirement as meaning that the act of destruction was by someone over
whom the potentially sanctioned party had some control. And in Henderson, the court
charged the plaintiff with his lawyer's knowledge that the defense had requested that
evidence be preserved. Id. at 611.
In weighing the importance of the destroyed evidence, the fact that the culpable
party itself investigated the evidence is relevant but not determinative. See id. at 607-09.
Whether destruction of the evidence gave the culpable party an investigative advantage is
a consideration; conversely, the fact that neither party presents the testimony of an expert
who examined the evidence before its destruction diminishes its importance. Id. at 607
08. In Henderson, in which a car involved in a one-car accident was destroyed, the
"many photographs available to the experts" supported the court's decision that no
sanction was appropriate. Id. at 609.
In considering culpability, courts examine whether the party acted in bad faith or
with conscious disregard of the importance of the evidence, or whether there was some
innocent explanation for the destruction. Id. "Another important consideration is
whether the actor violated a duty to preserve the evidence." Id. at 610. In Henderson,
the plaintiffs duty to preserve his car arose from an explicit request by the defendant to
preserve it. Even the violation of the duty to preserve was excused in Henderson,
15
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
however, because the defendant had almost two years before the car was destroyed,
which the court characterized as "ample opportunity" to examine it. Id at 611.
In Homeworks, Division Two of our court observed that Washington cases had so
far not held that a potential litigant owes a general duty to preserve evidence but it
allowed that the appellants in the case "may be correct that a party has [such a duty] on
the eve of litigation." 133 Wn. App. at 901. In two relatively recent cases, our court has
found that no duty to preserve evidence arises where a person has been injured by an
arguably negligent act and a lawsuit is a possibility. In Ripley v. Lanzer, 152 Wn. App.
296, 215 P .3d 1020 (2009), the trial court refused to impose a sanction against medical
providers who threw away a defective scalpel handle, knowing that it had been the cause
of a broken blade that lodged in a patient's knee. Our court concluded that the evidence
might not have been important and "we see no bad faith or other reason to show that this
act was intended to destroy important evidence." Id at 326. In Tavai v. Walmart Stores,
Inc., 176 Wn. App. 122, l36, 307 P.3d 811 (2013), in which the plaintiff sought an
adverse inference instruction against a retailer that destroyed surveillance video that
might have recorded when and how water came to be on the floor where she fell, our
court "decline[d] to require store premises to retain all video anytime someone slips and
falls and files an accident report."
Stevens County suggests that Henderson recognized a general duty to preserve
evidence by "quot[ing] with approval" the discussion of such a duty in Fire Insurance
16
No. 32000-6-111
Cook v. Tarbert Logging, Inc. et al.
Exchange v. Zenith Radio Corp., lO3 Nev. 648, 747 P.2d 911 (1987). Br.ofResp't
Stevens County at 21. But Henderson did not quote the language in discussing the
existence ofa general duty. Rather, in a footnote in which the court explained why an
explicit request to preserve evidence can give rise to a duty even if made before a lawsuit
is filed, Henderson cites Zenith Radio as supporting the proposition that "a party's
disregard of an opposing party's informal request could be viewed as an indication of bad
faith." 80 Wn. App. at 611 n.7. The language that Stevens County characterizes
Henderson as "approving" is merely parenthetically included as support for this different
proposition.
Read as a whole, Henderson's discussion of culpability as a factor implicitly holds
that a party's negligent failure to preserve evidence relevant to foreseeable litigation is
not sanctionable spoliation. The discussion of the defendant's culpability begins with the
observation that many courts examine "whether the party acted in bad faith or conscious
disregard of the importance of the evidence." Id. at 609. Negligence is not mentioned.
Henderson then turns to a discussion of violation of a duty as a form of
culpability, but the examples it gives are all of legal duties unrelated to foreseeable
litigation. As observed by the court in Homeworks, "Significantly, in Henderson, the
court did not suggest that potential plaintiffs have a general duty to preserve all evidence.
Instead, the Henderson court looked to other sources for duty such as the duty of a
17
No. 32000-6-111
Cook v. Tarbert Logging, Inc. et al.
partner to preserve records or the duty of a medical provider to save medical
information." 133 Wn. App. at 901.
Having identified those sorts of sources for duty, Henderson states, "Here, the
Hendersons have not established ... any similar duty to retain the 1972 Camaro." 80
Wn. App. at 610. There is no way to read that statement other than as the rejection of a
general duty to preserve evidence. The court's consideration of spoliation continued in
Henderson only because the Hendersons could point to their lawyer's letter to the
defendant's lawyer explicitly asking that the car be preserved until further notice. The
defense did not make a request that evidence be preserved here.
While defendants cite federal cases that recognize a general duty to
preserve evidence, federal law does not help them
"Washington case law on spoliation is sparse." Homeworks, 133 Wn. App. at 898.
In outlining a framework for identifying spoliation and framing a sanction, Henderson
looked to contemporary cases from other jurisdictions, evidence treatises, and law review
articles. In the 19 years since Henderson was decided, the federal courts and some state
courts have recognized a general duty to preserve important evidence. Both Tarbert and
Stevens County cite to federal decisions postdating Henderson as additional support for
the court's findings and sanctions here, suggesting that we should follow the federal
trend. Br. of Resp't Tarbert at 26 (citing Unigard Sec. Ins. Co. v. Lakewood Eng'g &
Mfg. Corp., 982 F.2d 363, 368-70 (9th Cir. 1992)); Br. of Resp't Stevens County at 21
18
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
(citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)). The federal
cases do not support the trial court's rulings, however--or at least do not support its in
limine ruling permitting the defendants to present evidence and argument of an adverse
inference.
In Zubulake, the case cited by Stevens County, the court held that the party
seeking instruction on an adverse inference for merely negligent spoliation must show
that the destroyed evidence was "relevant" in a heightened sense: it must adduce
sufficient evidence that a reasonable trier of fact could infer that the evidence would
have-not might have-been helpful to its case. As the federal court explained:
[I]n order to receive an adverse inference instruction, Zubulake must
demonstrate not only that UBS destroyed relevant evidence as that term is
ordinarily understood, but also that the destroyed evidence would have
been favorable to her. This corroboration requirement is even more
necessary where the destruction was merely negligent, since in those cases
it cannot be inferred from the conduct of the spoliator that the evidence
would even have been harmful to him. This is equally true in cases of gross
negligence or recklessness; only in the case ofwillful spoliation is the
spoliator's mental culpability itself evidence ofthe relevance ofthe
documents destroyed.
220 F.R.D. at 221 (some emphasis added) (footnotes omitted) (quoting Turner v. Hudson
Transit Lines, Inc., 142 F.R.D. 68, 77 (S.D.N.Y. 1991)); accord Orbit One Commc'ns,
Inc. v. Numerex Corp., 271 F.R.D. 429, 439-40 (S.D.N.Y. 2010); cf Reinsdorfv.
Skechers U.S.A., Inc., 296 F.R.D. 604, 627 (C.D. Cal. 2013) (while the Ninth Circuit
Court of Appeals has not clearly articulated the degree of culpability necessary to warrant
19
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
an adverse inference instruction, courts in the circuit have found willfulness or gross
negligence to suffice),8
In addition to recognizing that negligence does not logically support an adverse
inference, the court observed in Zubulake that "[i]n practice, an adverse inference
instruction often ends litigation-it is too difficult a hurdle for the spoliator to overcome.
, , . When a jury is instructed that it may "infer that the party who destroyed potentially
relevant evidence did so out of a realization that the [evidence was] unfavorable,' the
party suffering this instruction will be hard-pressed to prevail on the merits." 220 F.R.D.
at 219-20 (third alteration in original) (internal quotation marks omitted) (quoting Linnen
8In reexamining its approach to spoliation in 2014, the Texas Supreme Court
observed that its position that an adverse inference sanction is available only for
intentional, bad faith spoliation "aligns with a majority of the federal courts of appeals."
Brookshire Bros. v. Aldridge, 438 S.W.3d 9,24 (Tex, 2014) (citing cases). As a further
reason weighing against giving such an instruction, the Texas Supreme Court expressed
concern about distracting jurors from the historical evidence:
[T]he imposition of a severe spoliation sanction, such as a spoliation jury
instruction, can shift the focus of the case from the merits of the lawsuit to
the improper conduct that was allegedly committed by one of the parties
during the course of the litigation process. The problem is magnified when
evidence regarding the spoliating conduct is presented to a jury. Like the
spoliating conduct itself, this shift can unfairly skew a jury verdict,
resulting in a judgment that is based not on the facts of the case, but on the
conduct of the parties during or in anticipation of litigation.
Id. at l3-14.
20
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
v. A.H Robins Co., No. 97-2307,1999 WL 462015, at *11 (Mass. Super. Ct. June 16,
1999) ( court order)).
The most recent federal development is recently approved amendments to the
Federal Rules of Civil Procedure relating to electronically stored information that permit
a court to give an adverse inference instruction only if it finds intentional destruction and
prejudice. Proposed Amendments to the Federal Rules of Civil Procedure, 305 F.R.D.
457,485-86 (2015).9 Amended Federal Rule of Civil Procedure 37(e), which will take
effect on December 1, 2015, absent legislation to reject, modifY, or defer the rules, reads
in its entirety:
Failure to Preserve Electronically Stored Information. If electronically
stored information that should have been preserved in the anticipation or
conduct of litigation is lost because a party failed to take reasonable steps to
preserve it, and it cannot be restored or replaced through additional
discovery, the court:
(1) upon finding prejudice to another party from loss of the information,
may order measures no greater than necessary to cure the prejudice;
or
(2) only upon finding that the party acted with the intent to deprive
another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the
party;
(B) instruct the jury that it mayor must presume the information
was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
9 Also available at
http://www.supremecourt.gov/orders/courtorders/frcvI5(updateL1823.pdf.
21
No. 32000-6-111
Cook v. Tarbert Logging, Inc. et al.
Comments to the 2015 proposed amendments, approved by the Judicial
Conference of the United States at its September 2014 session, recognize that "[m]any
court decisions hold that potential litigants have a duty to preserve relevant information
when litigation is reasonably foreseeable" and base regulation of sanctions on the
existence of a federal common law duty. Proposed Amendments to the Federal Rules of
Civil Procedure, Rule 37 committee note, 305 F.R.D. at 570. \0 The comments explain
that in creating a uniform standard for imposing severe sanctions when addressing a
failure to preserve electronically stored information, the intent was to reject federal
decisions that, under some circumstances, authorize the giving of adverse inference
instructions based on a finding of negligence or gross negligence. Id. at 575-76. The
comments offer the following explanation:
Adverse-inference instructions were developed on the premise that a
party's intentional loss or destruction of evidence to prevent its use in
litigation gives rise to a reasonable inference that the evidence was
unfavorable to the party responsible for loss or destruction of the evidence.
Negligent or even grossly negligent behavior does not logically support that
inference. Information lost through negligence may have been favorable to
either party, including the party that lost it, and inferring that it was
unfavorable to that party may tip the balance at trial in ways the lost
information never would have. The better rule for the negligent or grossly
negligent loss of electronically stored information is to preserve a broad
range of measures to cure prejudice caused by its loss, but to limit the most
severe measures to instances of intentional loss or destruction.
10 Also available at http://www.uscourts.gov/rules-policies/archives/committee
reports/reports-judicial-conference-september-20 14 (last visited Sept. 4, 2015).
22
No. 32000-6-II1
Cook v. Tarbert Logging, Inc. et al.
Id. at 576.
Federal cases view a federal common law duty to preserve evidence as well
established. See~ e.g., Pension Comm. of Univ. ofMontreal Pension Plan v. Bane ofAm.
Sec., LLC, 685 F. Supp. 2d 456,466 (S.D.N.Y. 2010) ("The common law duty to
preserve evidence relevant to litigation is well recognized.") (abrogated on other grounds
by Chin v. Port Auth. ofN Y., 685 F.3d 135 (2d Cir. 2012»; Joshua M. Koppel, Federal
Common Law and the Courts' Regulation ofPre-Litigation Preservation, 1 STAN. J. OF
COMPLEX LlTIG. 101 (2012) (identifying sources of authority for a federal common law
duty to preserve evidence); Proposed Amendments to the Federal Rules of Civil
Procedure, Rule 37 committee note, 305 F.R.D. at 569-78.
There is no such uniformity in the states' views of their common law. Most states
have refused to identify a tort duty to preserve evidence whose breach will support an
action for damages. See, e.g., Benjamin 1. Vernia, Annotation, Negligent Spoliation of
Evidence, Interfering with Prospective Civil Action, as Actionable, 101 A.L.R. 5th 61
(collecting cases); id. §2[a] ("The majority ofjurisdictions considering the actionability
of negligent spoliation ... have not recognized the tort, either for parties or nonparties to
the underlying dispute." (citations omitted»; Metlife Auto & Home v. Joe Basil
Chevrolet, Inc., 303 A.D.2d 30, 753 N.Y.S.2d 272,276 (2002) ("The great weight of
authority runs against recognizing a common-law duty to preserve evidence or a cause of
23
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
action for spoliation of evidence/impairment of claim or defense under almost any
circumstances." (collecting cases), aff'd, 1 N.Y.3d 478, 807 N.E.2d 865, 775 N.Y.S.2d
754 (2004). The federal courts have been able to avoid dealing with state substantive law
in making spoliation rulings in diversity cases by viewing such rulings as evidentiary in
nature and thereby not subject to the Erie doctrine. lI See Adkins v. Wolever, 554 F.3d
650,652 (6th Cir. 2009); Sherman v. Rinchem Co., 687 F.3d 996 (8th Cir. 2012).
Even if we were to consider the federal cases cited by Stevens County and Tarbert
as supporting a trend toward recognizing a duty to preserve evidence, Henderson would
compel us to follow their companion holdings that the merely negligent destruction of
evidence cannot support an adverse inference. As Henderson recognized, "[U]nless there
was bad faith, there is no basis for 'the inference of consciousness of a weak cause,' "
which is "the evidentiary inference that spoliation creates." 80 Wn. App. at 609 (quoting
2 MCCORMICK ON EVIDENCE § 265, at 191 (John William Strong ed., 4th ed. 1992).
Since the Cooks' parting out of the pickup truck did not support an adverse inference, the
trial court abused its discretion when it ruled in limine that the defendants could present
evidence and argument suggesting such an inference.
Given developments in the federal courts and elsewhere, it might be time for
Washington to reexamine whether it should recognize the existence of a general duty to
II Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
24
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
preserve evidence. But a request for such reexamination should address many issues that
the parties here did not view as presented and therefore did not brief. Those issues
include (1) the source of the duty, (2) ifit is proposed to be found in the exercise of the
court's inherent authority, the admonition that "[b]ecause inherent powers are shielded
from direct democratic controls, they must be exercised with restraint and discretion,"
Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S. Ct. 2455, 65 L. Ed. 2d 488
(1980), and (3) whether it is better to leave the recognition of any such duty to rule
making. We will not reexamine the duty issue further where the parties have not briefed
such issues.
In summary, Henderson did not recognize a general duty to preserve evidence.
We need not consider whether federal authority offered by Tarbert and Stevens County is
persuasive support for finding a general duty to preserve evidence because the federal
cases, like Henderson, would not support the suggestion of an adverse inference absent
bad faith or, at a minimum, gross negligence. In light of the Cooks' merely negligent
actions, it is clear that the trial court abused its discretion in permitting evidence and
argument suggesting the inference.
II Did the trial court abuse its discretion in admitting evidence about the
plaintiffs' absent expert and denying the Cooks' request to offer rebuttal
evidence that the expert's opinions would have supported their position?
The Cooks' most fervent objection to the trial court's spoliation rulings was to its
decision to allow the jury to learn about their early retention of an expert on speed whom
25
No. 32000-6-111
Cook v. Tarbert Logging, Inc. et al.
they had not called as a witness. In briefing the parties' cross motions in limine on this
issue, Tarbert explained its reasons for wanting the jury to know about the expert:
Defendants should be allowed to show that this was not an "innocent"
mistake, but that Plaintiff and his lawyer hired an expert to examine the
vehicle for purposes of assessing the speed of the collision, but the expert,
Plaintiffs and their attorney failed to preserve this critical evidence.
It is abundantly clear that Dr. Gill knew of the importance of the
black box and its data .... The fact that Plaintiffs and their attorney did not
ensure that this information was preserved is something the jury needs to be
informed of in assessing what weight to give the presumption.
CP at 283-85.
Stevens County's objective was reflected in its proposed spoliation instruction.
While its proposed instruction was not given, it illustrates what the county intended to
demonstrate to jurors. The instruction would have informed the jury, in part:
Shortly after the accident, Mr. Cook hired an expert witness to examine the
vehicle and render an opinion regarding the cause of the accident, including
the speed involved in the collision. Mr. Cook's vehicle contained a "black
box" which recorded the speed of Mr. Cook's vehicle at the time of the
accident. However, the expert witness, although aware that the "black box"
could provide the speed of Mr. Cook's vehicle immediately prior to impact,
did not check the black box to determine the speed of Mr. Cook's vehicle.
After Mr. Cook's expert witness examined the vehicle, and before the
defense was allowed to examine the vehicle, Mr. Cook allowed the vehicle
to be destroyed.
CP at 337.
As Mr. Andersen explained in response, he was less concerned about evidence of
the pickup truck's destruction than he was about disclosure of the existence of a
26
No. 32000-6-II1
Cook v. Tarbert Logging, Inc. et al.
nontestifying expert for the plaintiff, which he argued would be "highly prejudicial at this
point, specifically given the fact that the court has made a finding of no bad faith." RP
(Aug. 22, 2013) at 764. Mr. Andersen argued that if the jury learned that an expert for
the Cooks had examined the truck, "the jury is going to say, well, where is this expert[?
T]here's clearly going to be some negative inference ... that the expert is going to have a
negative opinion against the plaintiff." RP (Aug. 22, 2013) at 773. Mr. Andersen finally
asked, after the court ruled that the evidence and argument would be permitted, whether
his client would "have the right to indicate to the jury that the expert's opinions were not
negative towards Mr. Cook." Id. Under the circumstances, as the Cooks recognized, the
evidence and argument the defense was asking court permission to advance would be
tantamount to a "missing witness" argument as to Dr. Gill. The Cooks' request to rebut
the implication was denied .
. It is the general rule that failure to call a witness under a party's control who could
testify to material facts justifies an inference that the witness would have testified
adversely to the party. Wright, 7 Wn.2d at 346. A jury may draw such an inference only
when under all the circumstances of the case the failure to produce the witness,
unexplained, creates a suspicion that the failure to produce was a willful attempt to
withhold competent testimony. State v. Baker, 56 Wn.2d 846, 850-60, 355 P.2d 806
(1960) (citing Wright). While Tarbert and Stevens County were offering different
reasons for presenting evidence that the Cooks had retained an expert who examined the
27
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
truck, a simple fact remains: ifjurors were informed that the Cooks had retained an
expert on crash speed, the expert had performed an examination, and the Cooks did not
call him to testify, the inference that the law of evidence would expect jurors to draw is
that the expert's testimony would not have been helpful to the Cooks. Price v. United
States, 531 A.2d 984,993 (D.C. 1987) ("By pointing out a witness' absence, counsel is
plainly suggesting that if that witness were produced the resulting testimony would be
adverse to the other party."); In re Gonzalez, 409 S.C. 621, 763 S.E.2d 210,218 (2014)
(prejudice from missing witness inference arose as soon as the existence of a
nontestifying expert carne out in cross-examination; any harm when inference was argued
in closing was merely cumulative). Yet as the lawyers and the court knew, Dr. Gill's
testimony would have been favorable, not adverse, to the Cooks.
The error was compounded when the court refused to allow the Cooks to rebut the
inference. "A permissive inference is subject to reasonable rebuttal." Stevenson v. Union
Pac. R.R., 354 F.3d 739, 750 (8th Cir. 2004); Webb v. District o/Columbia, 331 U.S.
App. D.C. 23, 146 F.3d 964,974 n.20 (1998) (observing that where one party, Webb, was
entitled to argue for an adverse inference, "the District, likewise, would be entitled to
attempt to rebut it"); cf Krieger v. McLaughlin, 50 Wn.2d 461,462,313 P.2d 361 (1957)
(where party's lawyer asked and was granted permission to rebut his adversary's missing
witness argument, he waived any error). The need to provide an opportunity to rebut the
28
No. 32000-6-II1
Cook v. Tarbert Logging, Inc. et al.
missing witness inference was critical here because everyone but the jurors knew that
their natural inference from this particular missing witness would be a false one.
We realize that allowing the rebuttal would have enabled the Cooks to present
. evidence of an opinion that had been excluded. But once the court decided that
examination about the expert would be permitted, 12 the defendants should have been
required to decide whether their interest in telling the jury about the expert's examination
was more important than having it revealed that his opinion would have supported the
Cooks. What was intolerable, and an abuse of discretion, was to allow the defendants to
present evidence of the absent expert's existence and at the same time deny the Cooks the
opportunity to rebut a false inference, naturally to be drawn by the jury, that the expert's
opinion was unfavorable to the Cooks.
Harmless error
Both Stevens County and Tarbert contend that even if the court abused its
discretion, the error was harmless.
An erroneous evidentiary ruling is not grounds for reversal absent prejudicial
error. Error will be harmless "if the evidence is of minor significance in reference to the
overall, overwhelming evidence as a whole." State v. Bourgeois, 133 Wn.2d 389, 403,
12 It is not clear why the court viewed evidence playing up Dr. Gill's asserted
culpability as relevant. The court had already made a finding of no bad faith on the part
of the Cooks that is well supported by the record.
29
No. 32000-6-III
Cook v. Tarbert Logging) Inc. et al.
945 P.3d 1120 (1997). An erroneous evidentiary ruling "is not prejudicial unless, within
reasonable probabilities, the outcome of the trial would have been materially affected had
the error not occurred." State v. Tharp, 96 Wn.2d 591,599,637 P.2d 961 (1981).
Stevens County was sued for negligently plowing too narrow a traversable
roadway. The speeds at which Mr. Cook and Mr. Bean were driving were irrelevant to
that issue. Evidence of Mr. Cook's speed was relevant only to the issue of his
comparative fault for his injury. In completing the special verdict form, jurors stopped
with their finding that Stevens County was not negligent. As to Stevens County, then, the
court's error was harmless.
In completing the special verdict form, the jury similarly found that Tarbert was
not negligent, but in Tarbert's case, the jury's determination as to negligence necessarily
turned on what the jury concluded about the speeds at which Mr. Cook and Mr. Bean
were driving beginning with their approach to the blind curve and up to the time of the
collision. Speed was relevant to negligence in Tarbert's case. It nonetheless argues that
the fact that the Cooks had an uncalled expert who examined the vehicle "was of little
significance in the light of the evidence as a whole." Br. of Resp't Tarbert at 33. We
disagree.
While the Cooks did not call an expert to testify to the speeds at which Mr. Cook
and Mr. Bean were driving, Mr. Cook was an experienced heavy equipment and
commercial vehicle driver whose home was on the primitive road, about a mile-and-a
30
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.
half from where the collision occurred. He provided a detailed account of how he was
driving leading up to the collision and how it occurred. It is likely because of Mr. Cook's
demonstrable familiarity with the road and extensive driving experience that Mr.
Andersen was willing to try the case without an expert witness to support his client's
version of events.
The defense argued that Mr. Cook's statements to deputies contradicted the
testimony he gave at trial, but both deputies' reports were very brief and we cannot say
that the jury would not have credited Mr. Cook's testimony. One of the deputies testified
that based on the investigation, one or both of the drivers were traveling too fast for
conditions, but he was unable to determine who. Jurors were instructed that they were
the sole judges of the credibility of the witnesses and the value or weight to be given to
their testimony, and that they were not required to accept the opinions expressed by
experts. 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL
§ 1.02, at 24, § 2.1 0, at 53 (6th ed. 2012).13
The case was well defended by Tarbert's veteran lawyer, but considering all, there
is a reasonable probability that the two negative inferences that the defendants were
permitted to invite, in error, had a material effect on the outcome of trial. Because the
13 Although the court's instructions to the jury are not in our record, the parties'
joint trial management report indicates that the standard expert witness and closing
instructions would be given. CP at 145-49.
31
No. 32000-6-III
Cook v. Tarbert Logging. Inc. et al.
court's errors were not harmless in the case of the Cooks' claims against Tarbert and Mr.
Bean, a new trial of those claims is required. 14
We affirm the judgment in favor of Stevens County, reverse the judgment in favor
of Tarbert Logging and its driver, and remand for a new trial.
a-zu~ IC~
Siadoway, C.l.
WE CONCUR:
Brown, J.
14Stevens County's and Tarbert's briefs request awards of attorney fees and costs.
No basis for an award of reasonable attorney fees is identified. Under RAP 14, the
prevailing parties are entitled to costs upon compliance with RAP 14.4.
32