Present: All the Justices
IRIS GENTRY, ETC., ET AL.
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 951640
June 7, 1996
TOYOTA MOTOR CORPORATION, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
The issue in this appeal is whether the trial court erred in
dismissing this action for spoliation of evidence.
On May 17, 1991, Iris Gentry was rendered paraplegic when
she lost control of her 1987 Toyota pickup truck and crashed into
a ravine in Eden, North Carolina. Although Iris has amnesia as
to the events surrounding the accident, an eyewitness testified
that the truck's engine had been racing prior to the accident.
The witness stated that, when Iris shifted gears, the engine
"went wide open," and the truck "accelerated . . . started
fishtailing" and went off the road.
Iris's attorney employed William Rosenbluth, a purported
expert on the sudden acceleration of vehicles, to determine what
could have caused the engine to race. Rosenbluth inspected the
truck and concluded that a temperature control cable impinged on
the accelerator pedal rod and caused the sudden acceleration.
Rosenbluth then, without authorization or permission from anyone,
removed the temperature control cable by using a hacksaw on the
truck's instrument panel. He also removed the accelerator pedal
rod.
1
Thereafter, the Gentrys sued Toyota Motor Corporation
1
During the pendency of this action, the Gentrys divorced,
and Iris changed her name to Arrington.
(Toyota Japan), Toyota Motor Sales, USA, Inc. (Toyota USA), and
Danville Toyota, Inc. (Danville Toyota) (collectively, Toyota),
seeking $10,000,000 in damages for bodily injuries sustained by
Iris while operating an allegedly defective 1987 Toyota pickup
truck. The Gentrys' action was based upon theories of
negligence, breach of implied warranties, and strict liability.
They alleged that Toyota Japan and/or Toyota USA were negligent
in the design, manufacture, and testing of the truck and in
failing to warn them of the truck's dangerous and defective
condition. The Gentrys also alleged that Danville Toyota was
negligent in selling the truck to them in a defective condition,
in failing to inspect the truck, and in failing to warn them of
the defect.
Based upon answers to interrogatories and Rosenbluth's
deposition, Toyota moved to dismiss the action for spoliation of
evidence (the Spoliation Motion). Toyota claimed that Rosenbluth
had so damaged the truck during the course of his inspection that
Toyota was deprived of its right to inspect and test the truck
for any evidence of defect and that its ability to defend the
action was severely prejudiced.
On April 22, 1993, the trial court conducted an ore tenus
hearing on the Spoliation Motion. At the hearing, Toyota's
expert, Lee Carr, who had inspected the truck in September 1992,
testified he had been "faced with a dilemma" because he could
reach "either one of two conclusions." He stated that either (1)
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the temperature control cable did not interfere with the throttle
cable or (2) "there were other conditions present in [the] truck
that [he could not] now evaluate [and] that [he could not] now
duplicate that did, in fact, cause the [temperature control]
cable to come into contact with the throttle pedal assembly."
Carr further stated that "[w]hatever those conditions were . . .
[he could not] identify them and most importantly, if they
existed, [he] can't now know what caused them to be present."
After the hearing ended, the Gentrys moved for a stay of
consideration of the Spoliation Motion to allow testing of the
truck by another expert. They also sought permission "to
formulate and serve complete supplemental and amendatory
responses to discovery and . . . to move the Court to reopen the
hearing . . . on the [Spoliation Motion] and/or to move for leave
to file an amended motion for judgment." By order entered
October 12, 1993, the trial court granted the motion.
Thereafter, the Gentrys filed amended interrogatory answers
setting forth the anticipated opinions of their new expert, Dr.
Melvin K. Richardson. They also moved for leave to file an
amended motion for judgment based upon their new expert's
findings.
Richardson had inspected the truck in July and November
1993. He concluded that a defect had existed in the design or
manufacture of the truck's carburetor. This defect had allowed
varnish to accumulate in the "secondary butterfly" valve of the
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carburetor, causing the valve to stick in the open position and
produce the sudden acceleration. Richardson stated that
Rosenbluth's actions had not affected or impaired his ability to
determine the nature of the defect. Richardson further stated
that Rosenbluth's conclusions about the cause of the sudden
acceleration were erroneous.
Carr, Toyota's expert, had examined the carburetor in
September 1992 and again in March 1995 and found that the
carburetor functioned properly. From the eyewitness'
observations, Carr proposed yet a third theory regarding how the
accident occurred. He theorized that, in response to some
mechanical failure such as a "fuel problem" or an "ignition
problem," Iris "push[ed] down on the gas." Then, after the
mechanical failure resolved, "the engine . . . suddenly [had]
power," causing the truck to "shoot ahead and . . . fishtail."
Carr also stated that his inspection of and conclusion about the
carburetor had not been affected by anything that Rosenbluth had
done.
Toyota renewed its Spoliation Motion, and, on June 8, 1995,
the trial court granted the motion and dismissed the action with
prejudice. The trial judge stated his reason for granting the
motion as follows:
I think that this case has to be dismissed because
Mr. Rosenbluth . . . went in with a hack saw and then
destroyed a vehicle . . . and now has proven to be
absolutely wrong in his opinion[,] in the way in which
he conducted his investigation, [and] in the way in
which he destroyed the vehicle and prevented the
defendant from properly being able to defend the case.
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I think he's responsible for the whole mess which
inured to the detriment of the plaintiff.
We awarded the Gentrys this appeal.
A trial court's imposition of a sanction will not be
reversed on appeal unless the court abused its discretion. See
Oxenham v. Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991)
(decided under Code § 8.01-271.1). This, therefore, is the
standard we must apply in reviewing the trial court's ruling in
the present case.
Courts often impose sanctions when a litigant or his
attorney has acted in bad faith. The purpose of such a sanction
is to punish the offending party and deter others from acting
similarly.
In the present case, the record is clear that neither the
Gentrys nor their attorney acted in bad faith, and the trial
court so found. The wrongful act was committed by Rosenbluth who
acted on his own with neither the consent nor the knowledge of
the Gentrys or their attorney. Therefore, the dismissal of the
Gentrys' action did not serve to punish Rosenbluth, the offender.
Additionally, Rosenbluth's wrongful act, as deplorable as it
was, did not prejudice Toyota. The theory upon which the Gentrys
now seek to recover is totally unrelated to the part of the
vehicle that Rosenbluth destroyed. Indeed, Carr, Toyota's own
expert, testified unequivocally that his inspection of and
opinion concerning the carburetor were not affected by what
Rosenbluth had done. Therefore, given the lack of prejudice, the
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dismissal of the Gentrys' action was too severe a sanction.
For these reasons, we conclude that the trial court abused
its discretion in dismissing the Gentrys' action. 2 Accordingly,
we will reverse the trial court's judgment and remand the case
for further proceedings.
Reversed and remanded.
JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE LACY
join, dissenting.
In my opinion, the trial court did not abuse its discretion
in dismissing this action.
Toyota was entitled to examine the allegedly defective
vehicle in its post-accident condition to determine the cause of
any malfunction that may have occurred. This examination was
rendered impossible due to the intentional destruction by the
plaintiffs' representative of an integral part of the truck.
The fact that the plaintiffs have now focused on an alleged
2
Toyota also contends that the Gentrys should be prohibited
from relying upon Richardson's theory about the cause of the
accident. Toyota asserts that the Gentrys are estopped from
advancing this new theory because of the principle that a party
cannot assume inconsistent and mutually contradictory positions.
Toyota relies upon Burch v. Grace Street Bldg. Corp., 168 Va.
329, 191 S.E. 672 (1937), and its progeny.
The estoppel principle is sound, but it does not apply in
the present case. The Gentrys are not attempting to change their
position about facts within their firsthand knowledge. Instead,
they seek to present opinion evidence of an expert that differs
from that of another expert. Additionally, discovery depositions
and answers to interrogatories generally are not conclusively
binding upon a party. TransiLift Equipment, Ltd. v. Cunningham,
234 Va. 84, 93, 360 S.E.2d 183, 188 (1987). Therefore, we reject
Toyota's estoppel contention.
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defect not involving the portion of the vehicle removed with a
hacksaw by the plaintiffs' representative is irrelevant on the
issue of prejudice. The manufacturer should not be relegated to
merely rebutting some recent theory advanced by the plaintiffs
regarding the accident's cause. Toyota has the right to
determine whether there is some cause of the accident related to
the now nonexistent part removed by the plaintiffs. The majority
has completely disregarded that right to the prejudice of the
manufacturer.
I would affirm the judgment of the trial court.
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