Spoliation — State vs. Federal Law — Limitation of Direct and Cross, Adverse Inference

The defendant in Large v. Mobile Tool Int’l, Inc., 2008 U.S. Dist. LEXIS 1297 (S.D. Ind. Jan. 7, 2008), dismantled, reconstructed and discarded key components of the boom that it had manufactured and which had injured the plaintiff while he was using a bucket truck in the course of his employment as a lineman. Two interesting parts of the opinion. First, an issue that recurs (see our posts of September 28 and July 18, 2007) — whether spoliation sanctions are governed by state or federal law in a diversity action. Based on a 1995 precedent, District Judge William C. Lee held that Indiana state law controlled. (I disagree, for reasons stated in the prior posts, but this is not dispositive of anything.) Second, and of particular interest, is the nature of the sanctions that Judge Lee imposed. Specifically:

(1) [Plaintiff] Large's expert witnesses may not be cross-examined at trial regarding their inability to examine the destroyed parts of the boom;

(2) [Defendant] Mobile Tool's expert witnesses on the issue of Mobile Tool's liability will not be permitted to testify at trial, and;

(3) The jury will be informed of the destruction of the evidence and that they may draw a negative inference from such destruction with respect to Mobile.

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