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After 12 years and two trips up and down the judicial ladder, an Albany, N.Y., appellate panel has reversed a trial court and dismissed on spoliation grounds a defective-tire claim against Michelin North America. The recent ruling by the Appellate Division, 3rd Department, highlights a recurring issue in products liability cases: the unavailability of physical evidence and how to deal with that dilemma without unfairly prejudicing either side. It also overturns a verdict for the plaintiff of about $4 million. In Abulhasan v. Uniroyal-Goodrich Tire Co., 95433, the 3rd Department dismissed the case because it was not possible to determine with any degree of certainty that the defendant actually manufactured the tire in question. Significantly, the court also dismissed on spoliation grounds the plaintiff’s action against the dealer who sold the car with the allegedly defective tire. “This case makes it very clear that a litigant needs to have undertaken the effort to preserve evidence, not only after a lawsuit is filed but before a lawsuit is filed,” said James Brogan of the Philadelphia office of DLA Piper Rudnick Gray Cary, which represented the defendant. “You can’t simply say, ‘I didn’t know it was important to preserve the physical evidence because I hadn’t brought a lawsuit yet.’ “ Simcha D. Schonfeld of Rheingold, Valet, Rheingold, Shkolnik & McCartney in Manhattan, counsel for the plaintiff, said he is considering his appeal options. “The court extended spoliation sanctions to a third-party indemnification proceeding,” Schonfeld said. The ruling is rooted in an accident that occurred on July 21, 1990, when Dalila Abulhasan was severely injured in an automobile crash. Abulhasan lingered in a coma and eventually died. Three years after the accident, her husband sued the suspected manufacturer of an allegedly defective tire, Uniroyal-Goodrich. Michelin acquired Uniroyal in 1991. Abulhasan also sued the dealer that sold the vehicle, Goldring Motors Inc. By the time the suit was begun, the car had been sold for scrap and only a remnant of the tire was available for inspection. Abulhasan had taken pictures of the tire, but most of those pictures are now missing. Two issues kept the matter in litigation for years, resulting in two visits to the 3rd Department, with a jury trial in between. Initially, there was an issue as to whether Uniroyal’s motion for summary judgment was premature. It was, the 3rd Department said, and the matter went back for trial. A jury awarded damages of roughly $4 million to the plaintiff, and the spoliation issue was brought to the appeals court. THREE QUESTIONS The 3rd Department primarily dealt with three questions: whether it was established that Uniroyal actually manufactured the tire at issue; whether Uniroyal was prejudiced by the spoliation; and whether Goldring Motors was prejudiced by the spoliation since, without evidence of who manufactured the tire, the dealer would be denied indemnification. The 3rd Department held for the defendants on all counts. Justice D. Bruce Crew III, writing for a unanimous panel, said there was not enough of the tire preserved to establish that Uniroyal manufactured it. Even if there was enough evidence that Uniroyal manufactured the tire, the plaintiff’s spoliation of the tire and most of the pictures of it was fatal to his claim. Crew said it is “questionable” whether Abulhasan disposed of the evidence “with an eye toward ultimate litigation.” He noted, however, that Abulhasan was responsible for the destruction of the tire and the pictures and that evidence showed he had vowed that someone would “pay” for his wife’s death. “Given the fact that [Uniroyal] almost assuredly would have been able to demonstrate that it either did or did not manufacturer the subject tire had plaintiff’s car and/or photographs been retained for inspection, it is clear that [Uniroyal] has been severely prejudiced by such spoliation,” Crew wrote. The court said Sheridan also erred in failing to dismiss the action against Goldring Motors. It said Goldring has “an absolute right to indemnity from the manufacturer of the subject tire.” If the manufacturer could not be identified, the court said, Goldring would have no way to exercise that right. On the panel with Justice Crew were Justices Thomas E. Mercure, Carl J. Mugglin and Robert S. Rose. Appearing with Brogan was Matthew Goldberg, also of DLA Piper, and Joseph R. Brennan of Brennan & White in Glens Falls. Benjamin Pratt Jr. of Bartlett, Pontiff, Stewart & Rhodes in Glens Falls defended Goldring Motors.

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