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TORTS — Spoliation of Evidence A-2988-01T5; Appellate Division; opinion by Wallace, J.A.D.; decided and approved for publication February 7, 2003. Before Judges Wallace, Ciancia and Axelrad. On appeal from the Law Division, Middlesex County, L-10516-98. [Sat below: Judge Hurley.] DDS No. 32-2-2781 On November 15, 1996, plaintiff seriously injured his left arm, hand and fingers when he attempted to inspect and repair the newspaper conveyor system of his employer, The New York Times. Plaintiff filed suit against various defendants. In his amended complaint, plaintiff alleged that defendants Nolan Products, Inc., Nolan Industries, Inc., and Nolan Systems, Inc., and defendant Cutler Hamer, Inc., were negligent in the design, manufacture, repair, maintenance, and inspection of the conveyor system that caused his injuries. Plaintiff further alleged that defendant Xyonicz Corporation merged with and is the successor-in-interest to Nolan and is responsible for the liabilities of Nolan, and that defendant Eaton Corporation is the successor-in-interest to Cutler and is responsible for the liabilities of Cutler. Plaintiff was aware as early as April 1997 that the Times intended to dismantle the conveyor due to a plant closing. In preparation for filing a product-liability action against Nolan and Xyonicz, plaintiff’s attorney wrote the Times, beginning in April 1997, requesting that plaintiff be afforded an opportunity to inspect the equipment. After no reply was forthcoming, plaintiff’s counsel wrote on July 11, 1997, that “we are continuing our request to inspect the machinery involved in the above referenced accident before it is dismantled and moved.” On August 5, 1997, plaintiff’s attorney spoke with Vernon Byrd of the Times‘ legal department. Byrd advised counsel to make a written request regarding the preservation and inspection of the equipment. Plaintiff’s attorney then sent a certified letter and facsimile to the Times. On November 20, 1997, plaintiff filed a petition in New York against the New York Times seeking pre-lawsuit discovery. By letter dated January 15, 1998, the Times indicated it no longer possessed the subject conveyor and had sold it to the Manila Post Publishing Company in the Philippines. On October 23, 1998, plaintiff commenced this action in New Jersey against the manufacturers of the equipment and asserted claim of intentional and negligent spoliation of evidence against the Times, asserting that the Times had irreparably prejudiced his opportunity to prove a product-liability action against the manufacturers because the conveyor had been sold. Following a plenary hearing, the court concluded that defendant had a duty to preserve the conveyor as of August 5, 1997. Prior to trial, plaintiff dismissed his complaint against all defendants except the Times. On the first day of trial, the Times moved to dismiss the complaint on the ground that plaintiff could not prove damages since all the other defendants in the underlying products liability action had been dismissed. The manufacturer of the machine, Nolan, had declared bankruptcy in the 1980s and did not have any insurance, and other than the Times, the remaining defendants had been dismissed allegedly because plaintiff could not establish a case against them without the opportunity to inspect the conveyor. The next day, the court dismissed plaintiff’s complaint, concluding that plaintiff could not establish a prima facie case of spoliation. The court noted that Rosenblit v. Zimmerman, 166 N.J. 391 (2001), held that New Jersey does not recognize intentional spoliation as a separate cause of action, but that a claim for fraudulent concealment could be maintained. Further, the trial court noted that Gilleski v. Community Medical Center, 336 N.J. Super. 646 (App. Div. 2001), held that a claim for negligent spoliation of evidence was not a separate cause of action, but a claim could be maintained under traditional concepts of negligence. The trial court then concluded that because plaintiff can prove no damages because all of the defendants in this case have been dismissed. Applying traditional negligence principles in this case, neither party challenges the court’s decision that the Times owed a duty to plaintiff to preserve the conveyor machine. Assuming there was a duty and assuming the Times breached that duty, the crucial issue is whether plaintiff can demonstrate damages caused by that breach. Plaintiff failed to pursue a more traditional discovery sanction. Plaintiff could have asked the trial court to require the Times to pay for the cost for his expert to travel to the location of the machine and examine the machine as a reasonable expense resulting from the Times’ conduct. Plaintiff did not pursue such a remedy and ultimately his complaint against the manufacturers and successor corporations was dismissed. Held: The proofs showed that Nolan, the manufacturer of the machine, was out of business, and there was no insurance coverage. Thus, even if the machine had been available for plaintiff’s expert to examine, and even if plaintiff obtained a judgment against Nolan, it was not disputed that plaintiff could not recover damages from Nolan. Under these circumstances, the evidence was clear that plaintiff could not prove that the Times’ conduct in failing to preserve the machine proximately caused any injury to plaintiff. Consequently, judgment was properly entered in favor of the Times. Affirmed. — Digested by Steven P. Bann [The slip opinion is 10 pages long.] For appellant — Richard E. Brennan (Drinker Biddle & Shanley; Brennan and Jennifer A. Klear on the brief). For respondent The New York Times Company — Dennis J. Drasco (Lum, Danzis, Drasco, Positan & Kleinberg; Drasco and James D. Butler of counsel; Kevin J. O’Connor on the brief).

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