Commercial Litigation and Arbitration

Both Adverse Inference and Tort Claim of Spoliation Available for Same Act in New Jersey — Duplicative Recovery Barred

From Tartaglia v. UBS PaineWebber Inc., 2009 N.J. LEXIS 1797 (Dec. 16, 2008):

The matter now before us well illustrates the apparent confusion that has resulted from our discussion in Rosenblit [v. Zimmerman, 166 N.J. 391 (2001)] about the relationship between the time when an act of spoliation is discovered and the appropriate remedy…. First, there is a distinction to be drawn based on the identity of the alleged spoliator. That is to say, acts of spoliation by parties may give rise to the court's use of discovery and evidentiary sanctions and may also support separate counts in the nature of fraudulent concealment claims that are bifurcated for determination after the verdict is returned on the other substantive claims.5 Our decision in Rosenblit made it plain that such a claim must proceed in accordance with the ordinary elements of a fraudulent concealment claim. On the other hand, an act of spoliation by a third party, including a reckless one, see Jerista v. Murray, 185 N.J. 175, 201-03 (2005), will not often give rise to an evidentiary sanction in the trial of the case in chief, but instead will be addressed in a separate proceeding.

Second, the time when the act of spoliation is discovered will affect the manner in which the court can address it. In the context of a claim of spoliation by a defendant, the use of an adverse inference should create a complete substantive remedy because the jury will decide, as part of the case in chief, whether the missing evidence existed and was destroyed by defendant. If so, the jury will decide the substantive issue as if that evidence assisted the plaintiff. That does not mean, however, that a verdict for plaintiff on the substantive claim will preclude recovery on the bifurcated claim, as some courts have suggested. See, e.g., Rizzuto v. Davidson Ladders, Inc., 905 A.2d 1165, 1180 (Conn. 2006) (holding that "[t]o establish proximate causation, the plaintiff must prove that the defendants' intentional, bad faith destruction of evidence rendered the plaintiff unable to establish a prima facie case in the underlying litigation"); Hannah v. Heeter, 584 S.E.2d 560, 573 (W. Va. 2003) (concluding that once plaintiff has demonstrated all but the damage elements of the spoliation tort, a rebuttable presumption arises that but for the spoliation, the aggrieved party would have prevailed in the underlying suit).

Instead, in that circumstance, the subsequent prosecution of the bifurcated claim will not create a duplicative recovery because the focus in that proceeding will be on the damages, both compensatory and punitive, incurred in having to proceed without the destroyed evidence. That is to say, if a plaintiff has already prevailed on the substantive claim with the benefit of the adverse inference, the bifurcated proceeding cannot be an opportunity for the jury to consider anew whether its substantive verdict would have been different had the missing evidence been considered. In that context, the bifurcated counts will offer the plaintiff a chance to recover additional compensatory damages limited to the further costs of proceeding without the spoliated evidence, or costs incurred in an effort to replace that evidence, together with, if appropriate, a punitive award. On the other hand, if the act of spoliation is discovered after the verdict in the case in chief has been returned, the cause of action for the fraudulent concealment will be entirely separate and, depending on the outcome of the original trial, may include both consideration of the substantive counts as well as the further spoliation-based damages.

There is no inherent contradiction between permitting a plaintiff to try the case in chief, absent the missing evidence, but with the benefit of an adverse inference change, and permitting the same plaintiff to proceed as well on the substance of the intentional spoliation claim in a bifurcated proceeding. The evils to be remedied are not the same and, as long as the matter is carefully charged to the jury, the awards of damages will not overlap. Although some courts have held that the availability of the bifurcated cause of action turns on whether plaintiff succeeds on the substantive claim itself, see Rizzuto, supra, 905 A.2d at 1180; Hannah, supra, 584 S.E.2d at 573, we see them as different remedies serving different purposes.

Therefore, whether a plaintiff succeeds on the claim in the original litigation or not, there are damages that might be recovered, including punitive damages, in the event that the plaintiff can demonstrate that the loss of the evidence caused that plaintiff to incur costs or expenses in the litigation that would not otherwise have been incurred. Thus, for example, a plaintiff who is deprived of evidence due to a defendant's spoliation and is therefore required to hire additional experts or to develop and rely on alternate proofs might well sustain damages separate and apart from those incurred as a result of the underlying cause of action. Likewise, a plaintiff who is deprived of the use of a tangible thing and is forced to employ an expert to create a model based on photographs or verbal descriptions might well be entitled to those costs as an element of her damages on the bifurcated claim. At the same time, there may be no damages to be attributed to spoliation separate and apart from the damage award in a plaintiff's case in chief in a particular matter. Although there is, to be sure, some risk that a plaintiff who succeeds in the main claim will seek a double recovery through the mechanism of a bifurcated spoliation claim, we consider that risk to be relatively a minor one when compared to the risk that a contrary ruling might encourage spoliators by providing little disincentive to them.

Seen in this light, the purposes to be served by the adverse inference charge and by the bifurcated spoliation claim are different. We implicitly recognized as much in Rosenblit, and we reiterate that we did not intend, by our language in Rosenblit, to foreclose the possibility that more than one form of relief may be appropriate in a specific case in order to remedy the evil. Although the time when an act of spoliation is discovered will indeed strongly suggest the appropriate course of action in that case, the matter before us well illustrates the possibility that more than one remedy may be available, if a plaintiff has the ability to muster the appropriate proofs.

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