Appellants, Cecil W. Bright et al., are plaintiffs in a personal injury action arising out of a single-car accident involving an automobile manufactured by defendant-appellee Ford Motor Company. After the trial court entered an order forbidding their two experts on causation to testify, plaintiffs stipulated that they would be unable to establish proximate cause. Thereafter, the trial court entered summary judgment against plaintiffs and in favor of all defendants-appellees, from which plaintiffs have appealed, advancing a single assignment of error:
"The Trial Court erred to the substantial prejudice of Appellants when awarding the Appellees a summary judgment which was predicated upon and the direct result of the erroneous Decision and Entry of the Court dated October 20, 1989 excluding Appellants' expert testimony."
The trial court entered a protective order October 27, 1988, upon Ford's motion, that provided in pertinent part that:
"[T]he Ford Lincoln Mercury Cougar * * * be maintained in its present condition until the parties agree in writing as to how, to what extent and by whom any destructive testing of the vehicle or any part thereon is to be accomplished or the further order of the Court[.]"
Subsequent to the entry of this order, the parties conducted a mutual inspection of the automobile and the alleged defect — the left front wheel assembly — at plaintiffs' garage, where the automobile was stored. The removed parts were put into the possession of plaintiffs' counsel. In June 1989, Ford moved for and obtained an order compelling plaintiffs to turn over the parts for non-destructive testing. Plaintiffs' counsel thereafter made a deliberate decision to have their experts degrease, clean, and inspect the parts before turning them over to Ford, which was done. Upon discovering the parts had been degreased and cleaned, Ford moved, inter alia, for dismissal, pursuant to Civ.R. 37(B)(2) and 41(B)(1). Ford claimed that "Plaintiffs' alteration of the condition of the vehicle parts * * * deprive[d] [it] of potentially significant evidence." Defendant Beau Townsend Ford joined in this motion. After an evidentiary hearing, the trial court entered the following order October 20, 1989:
"Pursuant to Defendant Ford Motor Company and Beau Townsend Fords' Motion for Sanctions, the Court concludes after hearing that the plaintiffs and their experts did violate the protective order issued by this Court by cleaning *Page 259 and degreasing the left front spindle and the related components i.e., bearings, dust caps, grease seals, retaining nut, washer, cotter pin, etc. so that defendants experts were deprived of a laboratory inspection and being able to photograph the parts under laboratory conditions in their original condition.
"The Court concludes that both sides could have inspected, measured, and photographed the parts at the same time or one after the other before they were cleaned, but plaintiff photographed the spindle and cleaned and degreased all the parts before defendant got possession of them.
"The Court concludes that both of the plaintiffs' experts should be and hereby are prohibited from testifying with regard to the adjustment of the hub on the spindle (looseness or tightness — end play or lack thereof)."
The practical effect of this order was to eviscerate plaintiffs' case.
We are satisfied that the trial court possessed the authority to both make the protective order of October 27, 1988, and to impose the sanction that it did for its violation. We are not satisfied, however, that the trial court acted reasonably in imposing this drastic sanction, notwithstanding its authority to do so, given only the evidence that was properly before it.
Sanctions must be just. Civ.R. 37(B)(2). Accordingly, a sanction which in effect puts a party out of court must be based on demonstrable prejudice to the opposing party. Attempting to quantify the requisite level of prejudice is difficult. The Supreme Judicial Court of Massachusetts discusses the problem inNally v. Volkswagen of America, Inc. (1989), 405 Mass. 191,539 N.E.2d 1017. Nally also involved a trial court order forbidding the testimony of an expert who had "spoliated" evidence. The court utilized a criminal law analogy to the effect that a defendant would be entitled to relief where potentially exculpatory evidence was lost or destroyed, and the defendant could establish "`a reasonable possibility, based on concrete evidence rather than a fertile imagination' that access to the (evidence) would have produced evidence favorable to his cause."Nally, supra, 405 Mass. at 196-197, 539 N.E.2d at 1021.
We have looked to Nally for guidance for two reasons. There is little other authority on the subject, and both sides in this controversy have cited it to us as instructive.
Utilizing the Nally approach, we think a workable formulation of prejudice for purposes of this case is: a reasonable possibility, based on concrete evidence, that access to the parts prior to degreasing or cleaning would have produced evidence favorable to Ford Motor Company or Beau Townsend Ford, which was not otherwise obtainable. *Page 260
We find the trial court's order excluding plaintiffs' expert testimony troubling for two reasons. We cannot be sure that the trial court determined that there was a reasonable possibility that access to the unaltered parts would have produced evidence favorable to Ford Motor Company or to Beau Townsend Ford that was not otherwise obtainable. Even if the trial court so determined, we cannot be sure that it did so on the onlyevidence that was properly before it, i.e. the testimony of plaintiffs' expert, Jack Schoenberger. After the evidentiary hearing but prior to ruling, the trial court said it would read the deposition of a defense expert, Tom Shaw, which had been properly objected to as untimely filed. Schoenberger's testimony, standing alone, does not necessarily establish that the appellees were prejudiced within the meaning of Nally.
Accordingly, the summary judgment will be reversed and this cause will be remanded for further proceedings consistent with this opinion.
A question may arise on remand as to which side has the burden of persuasion. The plaintiffs, through their counsel, wilfully violated the protective order and destroyed evidence. Accordingly, we think that defendants should enjoy a presumption that they were prejudiced, and that plaintiffs should have the burden of persuading the trial court that they were not, i.e., that there is no reasonable possibility that lack of access to the unaltered parts deprived Ford Motor Company and Beau Townsend Ford of favorable evidence not otherwise obtainable.
The defendants should enjoy a rebuttable presumption of prejudice for this reason. If, as a consequence of the destruction or spoliation of evidence in wilful violation of a court order, it has become impossible for either party to meet the burden of persuasion concerning: (a) the proposition that the innocent party has been prejudiced as a result of the destruction or spoliation; or, (b) the converse of that proposition, then the party who has destroyed the evidence, as the wrongdoer, must suffer the presumption that his wrongful act was prejudicial to the innocent party's prosecution or defense of the action. It would be manifestly unjust, under such circumstances, to saddle the innocent party with a burden of persuasion that he may have been prevented from satisfying as a result of the other party's wrongdoing.
The assignment of error is sustained. The judgment will be reversed and the cause will be remanded.
Judgment reversedand cause remanded. *Page 261
FAIN, J., concurs.
GRADY, J., concurs in judgment only.