Spoliation: A Derivative Claim — Illinois Appellate Court Creates a High Standard

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Plaintiffs are increasingly using destroyed, lost, or altered evidence to bring spoliation of evidence claims in product liability actions. In Illinois, a plaintiff can make a spoliation claim if it is tied to an underlying negligence action. Although spoliation claims are meant to address evidentiary issues, Illinois does not recognize them as an independent tort. Accordingly, a spoliation claim does not have its own statute of limitations and instead is based upon the underlying claim in the lawsuit. On October 7, 2015, the Illinois Appellate Court issued an opinion that made clear the requirements for a plaintiff bringing a product liability spoliation claim. Wofford v. Tracy, 2015 IL App (2d) 141220 is a clear example of the high bar the Illinois courts have set for a plaintiff to prove a ...
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The Importance of the Product Defense Attorney at a Fire Scene

iStock_000018723000_Large Part 1 – Preparation The attendance of a product defense attorney at a fire scene can greatly assist in the defense of a fire loss. Of course, that benefit is only fully realized when an attorney is sufficiently prepared and takes a proactive role when at the scene. If a client chooses to send an attorney to a fire scene, the attorney should make the most of that opportunity and gather as much information as possible to assist in the case. This series of blog posts will expound on the importance of preparation prior to a scene exam, attendance at the scene exam, and post-scene exam activities. Immediately upon receiving notice of a fire loss, contact the opposing party. Gather as much preliminary information as possible and confirm that the ...
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Mississippi Court Snuffs Out Plaintiffs’ Fading Hopes of Surviving Summary Judgement in Odorant-Fade Case

fire Flat Blue Simple Icon with long shadow As experienced fire litigators may know through case experience or study, the tell-tale, cloying ‘rotten egg’ smell signals a gas leak. Propane and natural gas are naturally colorless, odorless and tasteless, which is why federal regulations require natural gas companies to inject ‘odorants’ into gas lines (49 C.F.R. § 192.625(a)). What is perhaps less well-known is the phenomenon called ‘odorant fade,’ which is, as the name suggests, the reduction of concentration of odorant to a level where the gas is no longer detectable by smell. Odorant fade is often times the result of oxidation or adsorption when odorized natural gas migrates through soil. Such was the case for the Elliot family of Holly Springs, Mississippi in 2008. A natural gas pipe-line rupture underneath their property released significant amounts of natural ...
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Ohio Appellate Court Refuses to Extinguish Proximate Causation Opinion

Fire alarm sensor An Ohio Appellate Court recently evaluated the ability of experts to determine the proximate cause of damages resulting from the failure of a fire detection system to timely detect a fire. In the subject case (Case No. L-12-1358), the plaintiff’s car dealership was destroyed by a fire. Although the defendant’s detection system alerted authorities of the fire, the plaintiff filed suit alleging that the system was negligently installed resulting in delayed detection and increased damages to the structure. In support of its position, the plaintiff proffered expert testimony that if the system’s heat detectors were installed on the ceiling of the structure, rather than the bottom of trusses, it would have detected the fire earlier resulting in less damage to the structure. The defendant challenged this testimony, arguing that the ...
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Fire Investigators’ Product Defect Opinion Stifled by Federal Court

iStock_000001627771_Large The United States District Court for the District of Kansas recently addressed the qualifications of a fire investigator to offer testimony concerning the existence of a causal defect in a combine. In the subject case (Case No. 14-1183-JTM), a fire destroyed a John Deere S670 manufactured by the defendant and insured by plaintiff. The plaintiff filed suit alleging that the combine contained a defect that caused the fire. In support of its theory, the plaintiff proffered the expert testimony of a certified fire and explosion investigator who examined the combine, reviewed photographs, interviewed the insured, observed fire patterns, documented fire damage, and concluded that the fire originated between the machine’s engine and Diesel Particulate Filter (DPF). The expert further determined that the fire was caused by a defect in the ...
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Reliance on Unreliable Opinions Puts Fire Investigators’ Origin Theories on Ice

Fire Disaster in Warehouse The Texas Supreme Court recently held that a trial court did not abuse its discretion by disregarding the testimony of two fire investigators who relied on the unreliable opinions of other witnesses to provide a complete factual foundation for their origin theories. In Gharda USA, Inc. et al. v. Control Solutions, Inc. et al., Cause No 12-0987, the plaintiffs filed suit alleging that a chemical manufactured and sold by the defendants contained a manufacturing defect that led to a warehouse fire and over $8 million in damages. Specifically, plaintiffs alleged the chemical chlorpyrifos was contaminated with ethylene dichloride (EDC) when sold and that this contamination led to a chemical reaction, a release of flammable gases into a hotbox holding the chemical and eventual ignition of the vapors through spontaneous combustion ...
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In The Eyes Of The Jury: The Power of the Public Official

In catastrophic injury cases, defense counsel are familiar with the first responder investigations conducted by local and state police and fire departments. At times, the opinions and conclusions of the police and fire officials are unfavorable to the defense and attorneys are “stuck” with these opinions throughout the case and must find a way to discount or neutralize these opinions. If their findings align with the defense’s theory, they are a powerful weapon for the defense. A recent case that went to the jury highlighted the importance of the unbiased opinions of public officials. In this case, the injuries and potential damages were catastrophic. The plaintiff was badly injured in an apartment fire and brought a product liability action against a manufacturer, alleging that a design defect in the manufacturer’s ...
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Addressing Myths and Advancing Science in Fire Litigation

It is an experience common to fire litigators at trial.  The local fire marshal enters the court room, crisply attired in uniform and hat, ribbons and medals in view.  A stack of certifications attests to years of experience investigating hundreds, maybe thousands, of fires.  An air of detachment and neutrality conveys to the jury that he has “no dog in this fight.”  He calls it as he sees it.  If his findings align with your client’s interests, you have a powerful, often lethal, weapon to use in closing arguments.  If his findings are contrary, you face the unenviable task of undermining his opinions while maintaining a respectful demeanor. In some instances, the fire marshal is revealed to be a skilled investigator who has reliably applied scientific principles and methods.  On ...
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Area of Origin Alone is Insufficient to Prove a Defect

On the night of January 16, 2011, a security guard employed to monitor power service to a subdivision of vacant homes noticed that several homes in the Southbury, Connecticut subdivision had lost power. The subdivision, consisting of five homes that sat vacant since being built in 2005 had been experiencing false fire alarms and power outages. Two hours after the employee alerted his superior of the power outage, it was discovered that one of the homes was on fire. The fire was investigated by representatives of the insurer for the property (ACE) who placed on notice, Eaton, the manufacturer of a “Meter Pan” which was involved in the electrical system of the home. ACE subsequently sued Eaton, for strict liability seeking to recover payments it made to its insured. This ...
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Plaintiff’s Defect Theory Up in Smoke? Enter Malfunction Theory

The Connecticut Supreme Court recently made its ruling in White v. Mazda Motor of Am., 313 Conn. 610. In White, the plaintiff asserted design defect claims against Mazda after a car purchased by the plaintiff burst into flames one month later. The plaintiff’s complaint cited a laundry list of various defects which may have caused or contributed to the incident. To support its allegation, the plaintiff retained a certified fire investigator as an expert. The plaintiff’s expert testified that “the fire appears to be from the cause of a mechanical failure and … is the direct result of gasoline leaking on a hot surface causing the vehicle to catch fire.” Upon further examination, however, the plaintiff’s expert testified that “he was ‘not offering an opinion that the [vehicle] was defective … ...
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