Judge rejects action for spoliation of evidence

An injured worker blocked from a product defect case cannot sue his employer for losing a propane heater blamed for his injuries, a Henrico County Circuit judge has ruled.

Virginia does not recognize an independent claim for spoliation of evidence, he ruled. The Supreme Court of Virginia this month allowed that decision to stand.

Spoliation — commonly defined as failure to preserve relevant evidence — arises in civil and criminal cases, usually when one party is accused of hiding, altering or destroying evidence that might have helped an adversary.

Steve E. Johnson was an employee at a Southern States Cooperative Inc. warehouse in Henrico County. He was badly burned when his clothes were ignited as he started a propane space heater at the warehouse on a cold February morning in 2013, according to documents in the case.

The space heater was a product normally sold by Southern States, Johnson claimed.

As he pursued his workers’ compensation claim for lost wages and medical benefits, Johnson hoped to seek additional recovery based on a possible defect in the space heater. His attorneys asked Southern States to preserve the heater.

Johnson later officially asked to be allowed to inspect the heater. Southern States said it had no objection to Johnson’s “motion to inspect” filed in the workers’ compensation case.

When Johnson’s lawyer and his experts were ready to inspect the heater, however, Southern States informed them it was gone.

“They threw it away,” said one of Johnson’s lawyers.

Separate suit

Johnson responded with a $7.5 million lawsuit for spoliation of evidence. Southern States negligently interfered with Johnson’s right to pursue a products liability suit, Johnson said.

Southern States relied on a 1998 Virginia Supreme Court ruling — Austin v. Consolidation Coal Co. (VLW 098-6-088) — holding that Virginia law does not recognize an independent tort of intentional or negligent interference with a prospective civil action by spoliation of evidence.

Johnson argued his case was more like an ordinary negligence case with elements of duty, breach, causation and damages. Southern States assumed a duty to preserve the heater when it gave its “formal acquiescence” to Johnson’s motion to inspect, Johnson contended.

Johnson’s lawyers pointed to cases where parties were held to have assumed duties through affirmative assurances, analogous to Southern States’ agreement to allow inspection.

“We thought that if there ever was a case for negligent spoliation, this was it,” said William B. Kilduff of Richmond, one of Johnson’s attorneys.

Southern States also pointed to the “comp bar,” the doctrine that generally bars tort actions against an employer of an injured employee.

The parties clashed on whether the damages sought were sufficiently different to take the case out of the worker’s comp arena.

At a 2014 hearing, Henrico County Circuit Judge Richard S. Wallerstein Jr. ruled in favor of Southern States and dismissed Johnson’s lawsuit.

“[I]t is this Court’s opinion that Virginia does not recognize the tort of negligent spoliation,” Wallerstein said, according to a transcript.

Nevertheless, the judge said he found the issue “stimulating” and “intriguing” and suggested that the Supreme Court of Virginia might want to undertake a “closer inspection.”

Johnson urged the court to review the case.

“When Southern States destroyed the space heater, they also destroyed Mr. Johnson’s product liability case against the manufacturer. Unless the Court takes up this case, Mr. Johnson will forever be denied justice,” Johnson’s lawyers wrote.

The Supreme Court declined the invitation.

The justices refused Johnson’s petition for appeal on Oct. 29, 2015, saying they found “no reversible error” in the judgment. The court refused rehearing on Feb. 5.

Johnson was also represented by Richmond attorney Craig B. Davis.

Southern States was represented by Richmond’s Martin A. Conn.