When broken, defective, or dangerous consumer products are thrown out with the trash, potentially important evidence for future litigation is tossed away with it. A recent decision by the Ontario Superior Court, Stilwell v. World Kitchens Inc., 2013 ONSC 3354, allowed injured plaintiffs to recover in a product liability case, despite the fact that they had little evidence to show that it was the defendants' product that caused the injuries, and they lacked proof of how the particular item shattered. Justice Leach issued an interim endorsement that the jury could not be asked to consider the doctrine of spoliation, that is, the jury was not permitted to think that the discarded evidence would "tell against" the plaintiffs if it were found. While the decision did not introduce new law, it is a poignant reminder that those who manufacture disposable or perishable consumer goods may be particularly vulnerable to product-less liability claims where they are unable to rely on physical evidence.
In the fall of 2000, Lanny Stilwell was washing what he claimed was a Visions Dutch Oven in his kitchen sink when it broke into sharp pieces that severely lacerated his wrist. It severed his right radial artery and six tendons, and caused significant nerve damage. A neighbour rushed him to hospital where he underwent urgent surgery for over five hours. Having been advised by her husband that he wanted the shattered pot "out of [his] house" before he returned home, Mrs. Stilwell disposed of all the broken pieces that night. She testified that she had no intention of starting a lawsuit at the time. The broken pot was part of a set, the remainder of which she kept but put into storage.
Mr. Stilwell never regained full use of his right hand. Sixteen months after the accident, the Stilwells commenced a lawsuit against the defendants claiming negligence and breach of warranty. A central issue throughout the dispute was whether the pot in question was actually a Visions Dutch Oven manufactured or distributed by the defendants. The defendants relied on the doctrine of spoliation.
Spoliation is the intentional destruction of relevant evidence where litigation is existing or pending. Courts remedy spoliation by imposing a rebuttable presumption that the missing evidence, had it been preserved, would have been unfavourable to the party who destroyed it. However, the inference does not arise merely because the evidence has been destroyed. Rather, the party who alleges spoliation must demonstrate that there was "intentional destruction" of evidence in contemplation of the litigation.
While there was no question that the broken pieces discarded by Mrs. Stilwell would have been extremely relevant in determining whether the pot was manufactured by the defendants, and the cause of its failure, Justice Leach found that the defendants had not produced any evidence demonstrating that the Stilwells disposed of it with the intention of affecting the litigation. He was influenced by the plaintiffs' testimony that they had not contemplated litigation until some time after the pieces were already disposed of. He accepted Mr. Stilwell's desire not to see the shards upon his return from the hospital as a rational explanation. Additionally, much emphasis was placed on the fact that Mrs. Stilwell had written to a defendant to warn it about the problem without making any request whatsoever for compensation. Justice Leach also noted that the defendants had not cross-examined the plaintiffs on their intention at the time of the disposal, which gave rise to the principled concerns underscoring the rule in Browne v. Dunne (1893), 6 R 67 (HL). He concluded that:
... it seems to me that there is quite simply no 'air of reality' to the suggestion that, in the immediate aftermath of the dramatic events of [the accident], the first and dominant thought of these plaintiffs was towards litigation and the destruction of evidence to gain an advantage in such litigation because the plaintiffs somehow knew or thought such evidence would tell against them. (at para 78)
As a result, Justice Leach found that it would be "inappropriate, needlessly confusing, and unfairly prejudicial to the plaintiffs" to put the doctrine of spoliation to the jury. Accordingly, there would be no legal presumption applied in the case against the plaintiff for having destroyed the pot. However, the plaintiffs still bore the burden of convincing the jury on a balance of probabilities that the pot in question was a Visions Dutch Oven. They called 19 witnesses, including experts who examined the remaining pots from the set that Mrs. Stilwell put into storage on the night of the accident.
After 22 days of trial, the jury delivered a verdict that the pot in question was a Visions Dutch Oven and that defendants were liable in negligence for "failure to adequately warn". The plaintiffs were awarded damages of over $1.1 million (before a 25% discount for contributory negligence by Mr. Stilwell). A significant recovery for a product-less liability claim.