Spoliation — Destruction of Disposable Breath Test Device That Does Not Retain Results Is Not Sanctionable — Manufacturer’s Statement That It “Is Not Intended To Legally Determine Blood Alcohol” Goes to Weight — Good Quote on Daubert

Rutledge v. NCL (Bahamas), Ltd., 464 Fed. Appx. 826 (11th Cir. Mar. 20, 2012):

Ada Mae Rutledge appeals several of the district court's evidentiary rulings in her negligence-based jury trial against Norwegian Cruise Line ("NCL"). Rutledge was aboard NCL's Norwegian Sun cruise ship on March 3, 2007, when she was injured in a fall as she attempted to enter an elevator.

NCL security officer Stephen Pentland accompanied Rutledge from the elevator to the ship's infirmary, where her injured arms were immobilized. Pentland testified that Rutledge smelled of alcohol and had glassy eyes, so he requested that she take an alcohol breath test, and she consented. The test was performed at around 8:30 P.M., two hours after Pentland said the fall had occurred. The device he used is called BreathScan and is manufactured by Akers Biosciences, which describes it as a "disposable screening device for one-time use." A person will blow into the device for ten seconds, and any alcohol in the breath will cause crystals inside the device to change color from yellow to blue. The crystals are coated with potassium dichromate and sulfuric acid, which react to alcohol to create acetic acid and chromium sulfate. The device Rutledge used was designed to detect a blood alcohol content ("BAC") of .08% or higher. Pentland testified that when Rutledge blew into the device, the crystals changed color from yellow to blue, indicating that two hours after the fall, Rutledge had an alcohol level of at least .08%. ***

I. Breath Test

Rutledge contends that the district court erred by denying her motion to exclude evidence of the breath test under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).***

Scientific test results are subject to the same reliability and relevancy standards as scientific testimony itself. *** Daubert identifies several factors that a court may consider as appropriate in gauging the reliability of scientific evidence or methods: (1) whether it has been subjected to testing; (2) whether it has been subjected to peer review; (3) its known or potential error rate; and (4) whether it has been generally accepted in the relevant scientific community. 509 U.S. at 593-94, 113 S. Ct. at 2796-97.

However, a district court has "the discretionary authority needed . . . to avoid unnecessary reliability proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted . . . . Indeed, the Rules seek to avoid unjustifiable expense and delay as part of their search for truth and the just determination of proceedings." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152-53, 119 S. Ct. 1167, 1176, 143 L. Ed. 2d 238 (1999) (quotations and alterations omitted). "Thus, whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Id. at 153, 119 S. Ct. at 1176.

For example, "[t]here is rarely a reason for a court to consider opinions that medical doctors routinely and widely recognize as true, like cigarette smoking causes lung cancer and heart disease, too much alcohol causes cirrhosis of the liver, and that the ingestion of sufficient amounts of arsenic causes death." McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1239 n.5 (11th Cir. 2005).

Alcohol breath tests have been generally recognized as reliable since at least 1973. *** Even if we engage in a rigorous Daubert analysis of this particular breath test device, we find that its admission was not an abuse of discretion. As NCL noted in its opposition to Rutledge's motion, the device used by Pentland has been subjected to laboratory testing that showed only one false positive in 1,200 trials. This information means the first and third Daubert factors weigh towards admitting the test. As for peer review and general scientific recognition, the device was approved by the Department of Transportation's National Highway Traffic Safety Administration ("NHTSA") on January 31, 2007, as conforming to "Model Specifications for Screening Devices to Measure Alcohol in Bodily Fluids." Conforming Products List, 72 Fed. Reg. 4559, 4559 (Jan. 31, 2007). It was still on the list on December 15, 2009, when the NHTSA published an update. Conforming Products List, 74 Fed. Reg. 66,398, 66,399 (Dec. 15, 2009). These specifications "established performance criteria and methods for testing alcohol screening devices to measure alcohol content." Id. at 66,398. Given the breath test device's low error rate in testing and its acceptance in the community as an effective alcohol tester,2 the district court did not abuse its discretion in finding that the device satisfies Daubert's reliability requirements.

Rutledge nonetheless contends that the device's manufacturer explicitly states that it should be "used only as a screening device and is only an indication of the possible presence of alcohol in the blood of the test subject. . . . BreathScan is not intended to legally determine blood alcohol presence, level, or inference of intoxication." Despite this language, the manufacturer still provides different tests for different alcohol concentrations (.02%, .05%, and .08%), which at least implies that the tests are indeed able to determine alcohol level. As the district court noted, this creates a contradiction, which could certainly go to the weight accorded to the results by the jurors, but it does not destroy the reliability of the method itself, which was confirmed in laboratory testing. The purpose of Daubert is to determine whether a methodology "is sufficiently reliable" to be presented to a jury. Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1338 (11th Cir. 2003). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596, 113 S. Ct. at 2798.***

Rutledge's final argument on the breath test is that the district court should have excluded the results because NCL destroyed the device. A party moving for sanctions for spoliation "must establish, among other things, that the destroyed evidence was relevant to a claim or defense such that the destruction of that evidence resulted in prejudice." Eli Lilly & Co. v. Air Express Int'l USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010). However, Rutledge does not dispute NCL's contention that the device changes colors again soon after the test has concluded, nor that the device is viable for one-time use only. The test results were witnessed, verified, and attested by Pentland and Jean Darlington, one of NCL's nurses. Since it could not reliably be used again, possessing the device would be of extremely limited value. Also, "an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith." Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (per curiam). Rutledge has failed to present any evidence that NCL destroyed the device in bad faith. See Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009).

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