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Georgia appellate judges found that Bridgestone/Firestone Inc. suffered incurable prejudice when a plaintiff destroyed the very tires at issue in a product liability suit. But the trio on the Georgia Court of Appeals nonetheless upheld a Fulton County, Ga., trial judge’s relatively light sanction against the plaintiff, Ross Campbell, who claims separation of his rear tires caused his Nissan Pathfinder to roll over in 1998. As a result of Campbell’s destruction of the tires — which occurred after he initially dropped the idea of suing the tire maker — Judge Brenda S. Cole of Fulton State Court had excluded any expert testimony made by examinations of the tires before they were destroyed. Cole also promised to instruct jurors that they could hold Campbell’s actions against him, but she allowed Campbell to present photographs his father had taken of the tires. “Given the evidence presented, the trial court would have been authorized to dismiss Campbell’s complaint,” wrote Presiding Judge John H. Ruffin Jr., joined by Judge Anne E. Barnes and Senior Judge Marion T. Pope Jr. But, Ruffin added, “the narrow issue presented is whether the trial court abused its discretion in refusing to impose harsher sanctions. In other words — whether dismissal or evidence exclusion is mandated as a matter of law. “It is not,” Ruffin concluded. Bridgestone/Firestone North American Tire v. Campbell, No. A02A1932 (Ga. Ct. App. Dec. 6, 2002). The case — one of numerous tire separation cases dogging Bridgestone/Firestone nationwide — drew an amicus brief supporting Campbell from the Georgia Trial Lawyers Association. The brief’s author, Albert M. Pearson III of Atlanta’s Moraitakis, Kushel & Pearson, acknowledged that Nissan and Bridgestone/Firestone suffered a disadvantage as a result of the tires’ destruction. But he added that when defendants destroy evidence, judges rarely default the entire defense, so “we don’t want the dismissal alternative so easily exercised.” SUIT CAN GO ON The Dec. 6 decision keeps alive Campbell’s suit against Bridgestone/Firestone and Nissan, though Pearson said Campbell may have “great difficulty” getting the case to a jury because the evidence he destroyed would have been important for both sides. The case stemmed from Campbell’s October 1998 accident, which his lawyer said caused a brain injury. Campbell’s father took pictures of the tires, and a forensic tire engineer examined the tires. Campbell then decided not to sue because he couldn’t afford an attorney and instructed the engineer to destroy the tires. Later, after hearing other allegations against Bridgestone/Firestone, Campbell filed suit, claiming the tires were defective and that the car design made the vehicle prone to rollovers. During discovery, Nissan and Bridgestone/Firestone sought access to the tires and the truck. According to the decision, Campbell deferred the requests until finally admitting that the tires had been destroyed and the car had been disposed of by Campbell’s insurer. Cole denied the companies’ efforts to have the complaint dismissed, or at least to exclude the photographs of the tires from evidence. On appeal, Ruffin noted that “the defendants — particularly Firestone — were prejudiced by the destruction of the evidence,” as “an examination of the actual tire would have significantly enhanced Firestone’s ability to refute Campbell’s claim.” While Campbell argued he destroyed the evidence before his litigation was pending, Ruffin wrote, “[T]here is some evidence of his culpability” in his delay in reporting the evidence had been destroyed. “Like the defendants, we find this scenario troubling,” Ruffin added, noting that the spoliation of critical evidence “may result in trial by ambush.” Nonetheless, the panel found dismissal “is not required here” and upheld Cole’s decision. “Although the defendants are hampered by the lack of evidence, so, too, is Campbell,” Ruffin added. APPEALS POSSIBLE In an e-mail to the Fulton County Daily Report, Alfred B. Adams III of Holland & Knight’s Atlanta office, who represented Bridgestone/Firestone along with Laurie Webb Daniel and Gregory J. Newman, said that his team would be discussing further appeal options with its client. We are pleased that the Court of Appeals found that Bridgestone/Firestone was prejudiced by the disposition of the tire, that the prejudice cannot be cured, that there was ‘evidence of … culpability’ on the part of Dr. Campbell, that there is potential for abuse in this situation, and that the trial court could have dismissed this case,” Adams wrote. Adams added, “Our client disagreed with the trial court’s decision not to dismiss the case under all these circumstances.” Campbell’s lawyer, C. Tab Turner, of Turner & Associates of North Little Rock, Ark., said Friday’s decision from the appeals court was “expected.” “This was another in a long list of ploys by Firestone and their lawyers to try and deprive the consumer of a fair and reasonable recovery for accidents caused by defective tires,” Turner wrote in an e-mail to the Daily Report. “Unfortunately for consumers, Firestone’s tactics delay, mislead, and prolong the suffering.” Andrew T. Bayman and Amy M. Power of Atlanta-based King & Spalding represented Nissan North America Inc. Bayman said he was disappointed with the result, but “we’re pleased the court recognized the importance of preservation of evidence.”

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