Fifth Circuit Clarifies Standards Regarding Spoliation of Evidence and Expert Witness Qualifications
The Fifth Circuit’s recent decision in Van Winkle v. Rogers, No. 22-30638, 2023 WL 5994138 (5th Cir. Sept. 15, 2023), underscores the critical importance of preserving evidence while also reinforcing Federal Rule of Evidence 702’s requirement that expert witnesses truly have expertise in the subjects on which they intend to testify.
In February 2018, a tractor-trailer’s tire separated, resulting in an accident when a piece of the tire struck a car driven by Billy Van Winkle Jr. Van Winkle sued Prime (the trucking company), along with its driver and insurance company. Despite initially collecting the tire that caused the accident and being on notice it was relevant to potential litigation, Prime destroyed the tire. Van Winkle subsequently filed a motion for sanctions, arguing that Prime spoliated the evidence.
Finding that the tire had been destroyed due to negligence, the trial court declined to find any bad faith on Prime’s part and denied Van Winkle’s motion for sanctions. In a separate ruling, the court also limited the testimony of Van Winkle’s expert, Roger Allen. While finding Allen qualified to testify on safety regulations and other issues relating to commercial driving, the court found that Allen was not qualified to testify on product liability related to the tire. Ultimately, the defendants obtained summary judgement, triggering a multi-issue appeal.
On appeal, the Fifth Circuit reversed the judgment, and its analysis of the spoliation and Rule 702 issues provide valuable guidance.
Spoliation and Bad Faith
Evidence is sometimes destroyed or lost—spoliation. Sanctions for spoliation are warranted upon a finding of bad faith. While these legal principles are well established, Van Winkle established that bad faith is sometimes a question of fact for the jury and that it can be established with circumstantial evidence.
While there was no dispute that Prime destroyed the tire in question, the trial court declined to find bad faith, concluding that the plaintiff’s “arguments that Prime intentionally destroyed the tire in bad faith in order to hide adverse evidence from Plaintiff are highly speculative.” The Fifth Circuit disagreed based on circumstantial evidence: (1) Prime was on notice that a suit might be filed as a result of the accident; (2) Prime knew that the tire would be relevant evidence; (3) Prime had no policy “in place to preserve evidence such as” the tire; and (4) Prime intentionally destroyed the tire nonetheless.
Based on these facts, the Fifth Circuit found “sufficient circumstantial evidence to create a genuine dispute of material fact as to whether Defendants destroyed the tire in bad faith” and that “Plaintiff should be permitted a jury instruction that if jurors find bad faith, they may infer that the destroyed evidence would have been adverse to Prime’s defense in this suit.”
The Van Winkle discussion of spoliation yields two concrete lessons: (1) prospective parties should not knowingly destroy relevant evidence; and (2) parties likely to come into possession of relevant evidence should have policies in place ensuring that the evidence is preserved.
Rule 702—Qualifications
Rule 702 allows for certain opinion testimony by “[a] witness who is qualified as an expert.” But a witness with expertise on one subject may not have expertise on another subject. As the Fifth Circuit found, the trial court in Van Winkle effectively policed this line.
The plaintiff designated Allen as his commercial trucking and safety expert. With “62 years of hands-on experience in the trucking business,” there was seemingly no dispute on appeal that Allen’s experience qualified him to testify as an expert on multiple relevant subjects, including safety regulations and practices. The trial court limited his testimony to those subjects, however, specifically finding him unqualified to testify regarding liability issues relating to the tire: “(1) ‘the mechanics or cause of the tire failure’; (2) ‘the tire retreading process’; (3) ‘the normal life expectancy of the tire’; (4) ‘the extent to which that tire failure resulted from a defect in the tire’; and (5) whether ‘a manufacturing defect caused the [tire] failure.’” The Fifth Circuit agreed, pointing out that “Allen himself admitted his lack of qualification and expertise” on these topics. And indeed he had; at his deposition, defense counsel elicited multiple key admissions from Allen, including that he had never worked for a tire manufacturer, had no education relating to tires, and had never published or presented on relevant aspects of tire maintenance and repair.
Van Winkle presents a common scenario in product liability cases. The plaintiff sought to rely on a single witness to opine on a number of subjects, including subjects beyond the witness’s expertise. Defendants must be alert to this overreach and should seek testimony defining the contours of each witness’s expertise, then move to exclude any opinions beyond that defined scope.
