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concluding that although a court “may look to the Daubert criteria when evaluating the admissibility of nonscientific expert testimony, the standard under Rule 702 is a liberal and flexible one, and the factors outlined in Daubert are merely guidelines in aiding a court's reliability determination.”
Summary of this case from On Track Innovations Ltd. v. T-Mobile United States, Inc.Opinion
00Civ 7439(RCC)
September 30, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff Torrance Brett Houlihan ("Plaintiff') brings the above-referenced personal injury case against Defendant Marriott International, Inc. ("Defendant"). Presently before the Court are Plaintiffs motion for sanctions for spoliation of evidence and Defendant's motion to preclude Plaintiffs expert witness from testifying at trial.
According to Marriott International, Inc., Plaintiff incorrectly names New York Marriott World Trade Center as an additional defendant in the Complaint. Plaintiff has not disputed this assertion; however, he has not amended the Complaint. For the purposes of this motion, "Defendant" will refer to Marriott International, Inc.
I. Background
Plaintiff was injured on April 23, 1998 while a guest at the New York Marriott Hotel. While Plaintiff was showering in his hotel room, the shower soap dish came loose and fell into the shower. When Plaintiff attempted to replace the soap dish, he sustained lacerations to the heel of his hand and wrist. Plaintiff immediately contacted hotel personnel, which dispatched employee Noel Rinaldi to Plaintiffs room. Rinaldi provided first aid to Plaintiff, who reportedly told Rinaldi that he ". . . tried to bang [the] soap dish back into place and in doing so, [the] soap dish broke and [the] sharp edge caused a cut in [his] left wrist." Clark Aff, Ex. B. In addition to aiding Plaintiff, Rinaldi also prepared a report for the hotel's Director of Loss Prevention. The Report included Plaintiffs explanation of the incident and reported that the maid who had cleaned the room the previous day stated that the soap dish had not been loose. In addition to Rinaldi, the hotel also dispatched to the room an employee to take pictures of the accident scene.
Shortly thereafter, Plaintiff was taken to the hospital to receive treatment and then returned to his hotel room later that day. When he returned, the room had been thoroughly cleaned, the soap dish removed and replaced, and fresh caulking had been put around the perimeter of the new soap dish. Although the whereabouts of the soap dish are unknown, Defendant believes that cleaning personnel disposed of the soap dish the morning of the accident. Plaintiff now moves for sanctions based on spoliation of evidence.
Also before the Court is Defendant's motion to preclude the testimony of Plaintiff's expert, Frank Raimondi. Mr. Raimondi's testimony would support Plaintiffs theory that the soap dish was loose due to stagnant water that had developed between the soap dish and the wall substrate. Defendant claims that Raimondi does not qualify as an expert under Federal Rules of Evidence 702 and 703 and that he should therefore be precluded from testifying at trial.
II. Spoliation of Evidence
Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. Sec West v. Goodyear Tire Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). Where spoliation occurs in violation of a discovery order, a federal district court may impose sanctions under the Federal Rules of Civil Procedure 37(b)(2).See id. A court may also impose sanctions for spoliation of evidence in the absence of a court order and prior to the filing of a complaint where litigation is reasonably foreseeable. A court's power to impose sanctions in these circumstances derives not from Rule 37, but from a court's "inherent power to control litigation." Id.; see also Turner v. Hudson Transit Lines. Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991).
A party has a duty to preserve evidence in its possession that is relevant to litigation, or potential litigation. See id. In the absence of a discovery order, the critical question is whether the party knew or should have known that the destroyed evidence was relevant to pending, imminent or reasonably foreseeable litigation. See Kudatzky v. Galbreath Co., 1997 U.S. Dist. LEXIS 14445 (S.D.N.Y. Sept. 23, 1997).
Here, the Court finds that Defendant had a duty to preserve the soap dish as evidence for potential litigation. Where a hotel guest is injured in a hotel room, there is a strong likelihood that such injury will be the subject of future litigation.
Defendant maintains that Plaintiffs statement to Rinaldi immediately after the accident indicated that the accident occurred as a result of Plaintiff's own actions. Accordingly, there was no indication of future litigation, relieving Defendant of any duty to preserve evidence. This argument, however, does not explain the steps the hotel took to document the incident, including preparing an accident report for the Office of Loss Prevention, interviewing the maid about the condition of the soap dish, and taking photographs of the accident scene. Defendant's efforts to document the accident in this manner clearly suggests an attempt to prepare for possible litigation. See Indemnity Ins. Co. of N. Am. v. Liebert Corp., 1998 U.S. Dist. LEXIS 9475, at * 10 n. 3 (S.D.N.Y. 1998) (documenting damage through photographs and reports indicates an attempt to prepare for litigation). Because Defendant made attempts to prepare for litigation itself, the Court finds that it had a duty to preserve evidence in its possession for use by the opposing party.
Once a duty to preserve has been established, a court must then assess: (1) the relative fault of the litigant against whom sanctions are sought; (2) the degree of prejudice suffered by the movant due to the destruction or loss of the evidence at issue; and (3) the appropriate sanction.See Rutgerswerke AG v. ABEX Corp., 2002 U.S. Dist. LEXIS 9965, at *46 (S.D.N.Y. June 4, 2002); Indemnity Ins. Co., 1998 U.S. Dist. LEXIS 9475, at *3 (S.D.N.Y. June 29, 1998).
There is no indication that Defendant's disposal of the soap dish was intentional. While Defendant had prepared reports and documented the scene through photographs, Plaintiff presents no evidence that the soap dish was destroyed in order to prevent its use in future litigation. Moreover, the facts of this case suggest that cleaning personnel disposed of the bloody soap dish for sanitary reasons. The Court therefore finds that Defendant did not intentionally spoliate the evidence.
The Court also finds that Plaintiff will not suffer severe prejudice from his lack of access to the soap dish. Plaintiffs expert witness, Frank Raimondi, testified that if the soap dish were available, he would examine the back of the dish for evidence of mildew. However, other evidence available to Plaintiff is just as valuable, or more valuable, in proving his case. Photographs of the soap dish depict its condition immediately after the accident. Moreover, Plaintiff may rely on his own testimony about the condition of the soap dish at the time the accident occurred. Such testimony may be more valuable than the dish itself, considering that any substances attached to the dish may have dissolved over time.
As a sanction, Plaintiff requests that Defendant be precluded from offering any testimony regarding the soap dish, such as expert testimony, or otherwise, and be limited to the cross examination of Plaintiffs witnesses on this issue. Plaintiff additionally requests a charge to the jury regarding the missing evidence instructing that the strongest adverse inference shall be drawn against Defendant from the loss of the soap dish.
Due to the innocent nature of the spoliation that occurred here and the minimal prejudice to Plaintiffs case, the Court finds that a sanction of costs is appropriate here. See West, 167 F.3d at 78 (awarding costs, including attorneys' fees, where spoliation was not intentional and prejudice was minimal). Such compensation may include costs arising from discovery necessary to identify alternative sources of information or from the investigation and litigation of the destruction of the evidence. See id.
Plaintiff also requests that Defendant be directed to provide authentication information of the photographs in affidavit form for purposes of identification. The Court declines to take action with respect to this issue at this time. Plaintiffs may renew this request prior to trial, should it arise.
III. Motion to Preclude Expert Testimony
At about the same time that Plaintiff moved for sanctions based on spoliation of evidence, Defendant filed a motion to preclude the trial testimony of Plaintiff s expert, Frank Raimondi. Raimondi has given deposition testimony and has completed a report on the soap dish and the circumstances surrounding Plaintiffs accident. Defendant argues that Raimondi's testimony should be precluded from evidence at trial because he does not possess the requisite qualifications of an expert witness and because his methodology does not satisfy the standards set forth inDaubert v. Merrell Dow Pharmaceutical Inc., 509 U.S. 579 (1993).
In Daubert, the Supreme Court held that Federal Rule of Evidence 702 imposes a "gate-keeping" duty on federal district court judges to ensure that scientific testimony is reliable. TheDaubert Court identified four factors that a court should look to in determining the admissibility of expert testimony. These factors are: (1) whether a theory or technique can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) the potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community. See Daubert, 509 U.S. at 592-94.
While the Supreme Court originally applied these standards to scientific testimony, it has since held that they may also be applied to other types of expert testimony. See Kumho Tire v. Carmichael, 526 U.S. 137, 147 (1999). Defendant contends that Raimondi's testimony should be precluded because the tests upon which he relies do not satisfy the requirements identified in Daubert.
Although a court may look to the Daubert criteria when evaluating the admissibility of non-scientific expert testimony, the standard under Rule 702 is a liberal and flexible one, and the factors outlined in Daubert are merely guidelines in aiding a court's reliability determination. See id. at 151. For example, in some cases, reliability concerns may focus on personal knowledge or experience rather than strict scientific methods. See Rivera v. Mill Hollow Corp., 2000 WL 1175001, at *1 (S.D.N.Y. 2000). Moreover, the Supreme Court has emphasized the "liberal thrust" of Rule 702, favoring the admissibility of expert opinion testimony. See Blanchard v. Eli Lilly Co., 207 F. Supp.2d 308, 316(D. Vt. 2002) (quotingDaubert, 509 U.S. at 588).
Raimondi is a licensed and certified architect in five states, including New York. During the last 45 years, he has participated in or been in direct charge of the planning and inspection of multi-million dollar construction projects in residential, medical, education and commercial industries. He has also provided professional consulting services for design, construction, and building code requirements during the past twelve years.
In his report, Raimondi states that the shower "wall construction design shown on the architectural drawings are acceptable and commonly used industry standard for bathroom walls around tubs." Clark Aff. Ex. H. Raimondi concludes that "water had penetrated the wall surface and lay trapped in the cavity long enough to stagnate and develop mildew and cause a bond failure between the back of the ceramic soap dish and the wall substrate behind it, which bond would be invisible to the hotel staff." It is Raimondi's opinion that the soap dish fell out of the wall because joint defects between the soap dish and the adjacent tile were undetected by Marriott staff. Raimondi suggests that this problem could have been discovered by either tugging at the soap dish to determine whether it was loose or by use of a "tap sounding" test conducted by a professional.
The Court finds that Raimondi is sufficiently qualified to testify as an expert witness and that his testimony would be helpful to a finder of fact. Moreover, Defendant will have ample opportunity on cross examination to raise any questions or doubts with respect to Raimondi's credentials or the reliability of his testimony. For these reasons, the Court finds that Raimondi's testimony is sufficiently reliable for admissibility under Rule 702. Therefore, Defendant's motion to preclude Raimondi's testimony is denied.
At least one other court in this district has determined that Raimondi is sufficiently qualified to testify as an expert witness with respect to faulty construction and maintenance. See, e.g., Locco v. United States, 1993 U.S. Dist. LEXIS 3939 (S.D.N.Y. 1993).
IV. Conclusion
The Court concludes that disposal of the soap dish constituted spoliation of evidence by Defendant; therefore, Plaintiff is entitled to costs arising from discovery necessary to identify alternative sources of information or from the investigation and litigation of the destruction of the evidence. The case is referred to a magistrate judge for the purposes of calculating such costs.
The Court also finds that Frank Raimondi is qualified to testify as an expert witness in this case. Thus, Defendant's motion to preclude his testimony is denied.