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Michael L. Oh, a junior associate at New Haven, Conn.-based Stratton Faxon, already had plenty of reasons to be nervous Dec. 2. It was his first time arguing a case before the state Supreme Court, and he was asking the justices to break new ground by recognizing a tort cause of action in Connecticut against litigants who destroy evidence. But just as he was about to begin, Chief Justice William J. Sullivan added an extra layer of anxiety. “There has been a bomb threat,” Sullivan told the assembled lawyers, clerks and roughly 30 spectators. “The state police are taking this very seriously.” Sullivan then asked Oh and his opposing counsel, Halloran & Sage appellate veteran John B. Farley, if they wished to proceed. Gamely, both men confirmed they were ready to go forward. AMBITIOUS REQUEST Oh went first, representing plaintiff Leandro Rizzuto, who fell from a ladder while selecting a mirror door at Home Depot in Norwalk. Rizzuto originally sued Davidson Ladder Co. as well, alleging its product was defectively manufactured and labeled. When Home Depot allegedly destroyed the ladder after it was examined by the home improvement giant’s expert witness, Rizzuto dropped the product liability counts and proceeded against Home Depot on grounds Connecticut has yet to recognize: the tort of intentional spoliation of evidence. In Rizzuto’s briefs, Stratton Faxon partners Michael A. Stratton and Joel T. Faxon stressed that Connecticut lacks an adequate legal remedy for spoliation of evidence. Ambitiously, they urged the high court to recognize a new common-law tort, as it did for infliction of emotional distress in 1952 and wrongful firing in 1980. Oh began by explaining that Home Depot’s destructive act created “a kind of asset” not unlike the underlying claim in a legal malpractice case for a missed statute of limitations. Similarly, the value of the lost personal-injury claim could be established in a “trial within a trial” on spoliation, he said. The loss of the critical evidence, Oh argued, “is not merely a discovery issue in a products liability case [and] the plaintiff should have a day in court for resolving what underlying interest was harmed.” Oh tried to make his request sound more modest. The court, he said, “need not prescribe a whole new cause of action.” Instead a remedy could be granted within the framework of negligence or intentional negligence torts, such as the intentional interference with an economic relationship, based on the spoliator’s state of mind, he suggested. Justice Flemming L. Norcott Jr. questioned how many states recognize an independent tort of spoliation. Oh’s answer reinforced his previous point, and showed his argument was no “left field” minority viewpoint: “Alaska, Kansas, Montana, West Virginia and the District of Columbia” recognize the tort independently, but “eight others recognize it under existing tort principles,” he replied. Thus, the 26 states that have considered the issue are evenly split, he said. Justice David M. Borden noted that a litigant harmed by spoliation is entitled to the adverse inference against the destroyer. But Oh said that’s not always enough, because an inference cannot take the place of the missing facts. ABANDONED CAUSE? Defense advocate Farley, for Home Depot, said the threshold question is whether Rizzuto has any right to even be asking the court to consider adopting the proposed cause of action. Even without the ladder in question, the plaintiff could use a similar Davidson Ladder ladder at Home Depot to argue that the product’s design was defective or its warning labels were inadequate. Rizzuto’s lawyers contend similarly built ladders may not reveal the same stress failures of the ladder Rizzuto fell from. “What the plaintiff would have this court approve is that we favor the spoliation tort over other viable underlying claims,” Farley said. The court, he added, should find that, by dropping the products liability claims, Rizzuto abandoned his spoliation claim. States that do recognize spoliation as a tort, such as Florida, only allow the underlying claims to be dropped if they would be frivolous without the missing evidence, Farley maintained. That’s not the case here; “Florida would not let this case proceed,” he said. Farley’s argument was interrupted when a clerk rushed in with a document. Sullivan stepped down, huddled with her and returned to the bench. He announced the final scheduled argument of the day would have to be postponed until 10 a.m. the following Monday (Dec. 5) because of the state police urging faster evacuation of courthouses across the state. No bombs were subsequently uncovered. Since there were only 19 minutes to go in the Home Depot case, Sullivan again asked the advocates whether they wanted to proceed. Farley said he was essentially finished. Oh took the lectern and began his rebuttal as clerks scurried, preparing to exit. It wasn’t long before Sullivan abruptly cut Oh off. “Come back Monday,” he told Oh. “I can’t take the chance that something’s going to happen.” When Oh resumed Dec. 5, Borden asked if his claim was limited to intentional spoliation. He replied, “We don’t know whether Home Depot acted negligently or intentionally,” and said the court should also consider a tort cause of action for negligent spoliation. In a later interview, Oh said, “I thought [the oral argument] was going to be called off, so I had a sense of disappointment — I wanted it to go forward.” After Sullivan announced the bomb threats were made to the governor’s office, “My first impression,” said Oh, “was that it wasn’t the courts [at risk]. If the justices were really concerned, I figured, we wouldn’t go forward.”

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