Virginia Lawyers Weekly VA Lawyers Weekly
Where defendants argued a woman who was injured in an automobile accident should be sanctioned because her vehicle event data recorder, or EDR, had been destroyed, but the record showed the woman’s counsel took reasonable steps to preserve the EDR, but defense counsel failed to take timely steps to gather such evidence, the motion was denied.
Background
Judy M. Paul and Andre G.H. Le Doux V sue Western Express Inc. and Ervin Joseph Worthy to collect damages for the injuries they sustained during a multi-vehicle accident on Interstate 81. Defendants have renewed their motion for sanctions for spoliation against Paul and filed a motion to bifurcate the issues of liability and damages.
Sanctions
Defendants have not shown by clear and convincing evidence that Paul failed to take reasonable steps to preserve the Kia and its EDR. Following defense counsel’s letter of preservation sent on Sept. 21, 2018, Paul’s counsel coordinated with GEICO and Insurance Auto Auctions, or IAA, for Paul’s Kia to be preserved. Subsequent email correspondence indicates that Paul’s counsel took reasonable steps to preserve the Kia and its EDR before the November 2018 inspection by informing defense counsel that they should direct requests about the Kia to GEICO and schedule an inspection directly through IAA.
Defendants argue that Paul’s expert, who inspected the Kia later in the day on Nov. 12, 2018, “could have taken the simple step of removing” the Kia’s EDR. This argument is unpersuasive because defense counsel told Paul’s counsel that they would perform the inspection, including performing a data download, and did not ask Paul’s counsel to remove the Kia’s EDR.
Additionally, after the November 2018 inspection, defense counsel did not take any steps to set a second inspection date to download the Kia’s EDR nor did they communicate a further interest to inspect the Kia before its destruction, which occurred in April 2019. It was not until Nov. 2, 2020, more than a year after the destruction of the Kia, that defense counsel sent a letter requesting the Kia’s EDR and expressing concern that Paul’s counsel had failed to preserve this evidence. The court finds that Paul’s counsel took reasonable steps to preserve the Kia and its EDR, but defense counsel failed to take timely steps to gather such evidence.
Even if the court were to find Paul’s counsel failed to take reasonable steps to preserve the Kia and its EDR, it would, at most, show Paul’s counsel acted negligently in failing to preserve evidence. There is no evidence showing Paul’s counsel acted in bad faith or willfully in failing to preserve the Kia to justify the court ordering the harsh sanction of an adverse inference instruction.
Bifurcation
Defendants argue that bifurcating would promote the interests of judicial economy and efficiency by potentially avoiding the unnecessary damage phase of trial. They specifically argue that the issue of liability is “relatively straight forward [sic]” while the issue of damages is complex. However, this “potential time savings is true in all bifurcated cases” and does not independently justify bifurcation.
Defendants also claim that there will be little-to-no overlap in the evidence during the liability and damages phases of trial. However, the court finds that defendants’ claim is contested by plaintiffs and unsupported in the present record. For instance, plaintiffs claim the jury will need to hear damage evidence about the distinguishing characteristics of tractor-trailers “to appreciate the destructive impact to the human body when a tractor-trailer crashes into an ordinary vehicle at highway or close to highway speeds” during the liability phase of trial. Additionally, at the hearing on the bifurcation motion, Le Doux’s counsel claimed evidence on Le Doux’s alleged brain trauma may be necessary for the jury to understand inconsistencies in Le Doux’s testimony.
Thus, the court is of the opinion that much of the evidence on how the accident occurred and circumstances surrounding it will be admissible during both phases of trial. Accordingly, the court is not persuaded that bifurcation would promote judicial economy and efficiency or be less prejudicial to defendants.
Defendants’ motion for sanctions for spoliation denied. Defendants’ motion to bifurcate denied.
Paul v. Western Express Inc., Case No. 6:20-cv-51, Feb. 10, 2023. WDVA at Lynchburg (Moon). VLW 023-3-055. 11 pp.
