Tangible Spoliation: Negligence Enough for Adverse Inference in 2d Cir. — RR Not Sanctioned for Altering Scene 3 Years Post-Accident (Passage of Time, Conflicting Safety Duty)—Expert Testimony Out Where Counsel Misled Adversary as to Gist (37(c)(1))

Colon v. Metro N. Commuter R.R. Co., 2019 U.S. App. LEXIS 18313 (2d Cir. June 19, 2019):

Plaintiffs-Appellants Milton Omar Colon and Arlene Davis (collectively, "Plaintiffs") appeal from the judgment entered on October 19, 2017 by the United States District Court for the District of Connecticut (Meyer, J.) dismissing Plaintiffs' complaint following a jury verdict in favor of Defendants-Appellees Metro-North Commuter Railroad Company and the Metropolitan Transportation Authority (collectively, "Defendants"). Plaintiffs also appeal the May 22, 2018 decision and order of the district court denying their motion for a new trial under Federal Rule of Civil Procedure 59 and the district court's final judgment entered on May 24, 2018. We assume the parties' familiarity with [*2]  the underlying facts, the procedural history of the case, and the issues on appeal.

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On March 17, 2011, Plaintiff-Appellant Milton Omar Colon ("Colon") decided to climb one of the catenary towers that line the Metro-North railway linking the cities of New Haven and New York.1 During his ascent, Colon was electrocuted by at least one of the high-voltage electric lines carried by the tower. He endured severe injuries, including sustaining burns all over his body and the amputation of both of his legs above his knees. Plaintiffs filed a federal diversity lawsuit for negligence against Defendants, and following a two-week trial, the jury found against the Plaintiffs. In addition to finding that Plaintiffs had failed to demonstrate Defendants' negligence, the jury also answered special interrogatories regarding each of the five specific elements of Plaintiffs' negligence claim, concluding that Plaintiffs had failed to carry their burden of establishing three of those five elements.

1.    Colon claims that he decided to climb the tower in order to get a better view of a herd of deer that he noticed while wandering in the wetlands near the railroad tracks.

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B. The Alleged Spoliation and Discovery Misconduct

Next, we reject Plaintiffs' contention that the district court committed reversible error in denying their motion for discovery sanctions following Defendants' alleged spoliation of relevant evidence. A party seeking an adverse inference instruction or other sanctions based on the spoliation of evidence must establish: "(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that [the evidence is] destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense." Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal quotation [*7]  marks omitted). We review a district court's decision on a motion for discovery sanctions for abuse of discretion. SeeSelletti v. Carey, 173 F.3d 104, 110 (2d Cir. 1999).

Plaintiffs argue that Defendants committed spoliation in laying crushed stone near and around the relevant catenary tower (and thereby altering the accident site) during railway maintenance almost three years after the accident. We have recognized that the "failure to adopt good preservation practices" is only "one factor in the determination of whether discovery sanctions should issue." Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012) (internal quotation marks and alterations omitted). Here, the district court concluded that in light of the passage of time between the accident and the road maintenance and Defendants' duty to maintain a safe railroad, Defendants "[a]t most . . . acted negligently with respect to their duty to preserve evidence." Special Appendix 20. Even "a finding of gross negligence merely permits, rather than requires, a district court [*8]  to give an adverse inference instruction." Chin, 685 F.3d at 162. The district court therefore did not abuse its discretion in concluding that an adverse inference instruction was inappropriate under the circumstances presented here, particularly given Plaintiffs' access to ample evidence of the accident site prior to the alleged act of spoliation.

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D. The Expert Witness Testimony

Plaintiffs also argue that the district court "neutered" their case by precluding and striking portions of the testimony offered by Dr. Elliot Stern, Plaintiffs' expert witness. [*10]  Br. Plaintiffs-Appellants at 31. We review a district court's evidentiary rulings, including the admission of expert testimony, for abuse of discretion. See Chin, 685 F.3d at 160. A district court's exclusion of expert testimony is an abuse of discretion only if it is "manifestly erroneous." Id. at 160-61 (internal quotation marks omitted). An evidentiary error is harmless unless the appellant shows a likelihood that a substantial right was affected, "such as when a jury's judgment would be swayed in a material fashion by the error." Id. at 161 (internal [*11]  quotation marks omitted).

First, we conclude that the district court did not abuse its discretion in precluding Dr. Stern from testifying about certain subjects that were either outside of his area of expertise or lay matters that the jury was capable of deciding without expert assistance. See Fed. R. Evid. 702(a) (a qualified expert may testify in the form of an opinion if: "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue"). Second, we conclude that the district court did not abuse its discretion in striking a very small portion of Dr. Stern's testimony on the ground that Plaintiffs' counsel had clearly misled opposing counsel as to the substance of this portion of Dr. Stern's testimony prior to trial. See Fed. R. Civ. P. 37(c)(1) (stating that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless"); see also Weiss v. Chrysler Motors Corp., 515 F.2d 449, 457 (2d Cir. 1975) ("Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." [*12]  (internal quotation marks omitted)). Finally, even if the district court erred, such error was harmless. A review of the entire trial record reveals that the portions of Dr. Stern's testimony that the district court either struck or precluded him from testifying about would not have swayed the jury's determination.

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